IN THE MATTER OF EUGENE I. OTTO POLICE DEPARTMENT TOWNSHIP OF IRVINGTON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1112-08T31112-08T3

IN THE MATTER OF

EUGENE I. OTTO,

POLICE DEPARTMENT,

TOWNSHIP OF IRVINGTON.

__________________________

 

Argued October 27, 2009 - Decided

Before Judges Wefing and LeWinn.

On appeal from a Final Decision of

the Civil Service Commission, Docket

No. 2007-199.

Anthony J. Iacullo argued the cause for

appellant Eugene I. Otto (Iacullo Martino,

attorneys; Mr. Iacullo, of counsel and

on the brief; Joshua H. Reinitz, on the briefs).

Gustavo G. Garcia, Assistant Township Attorney,

argued the cause for respondent Township of

Irvington (Marvin T. Braker, Township Attorney;

Mr. Garcia, on the brief).

Anne Milgram, Attorney General, attorney for

respondent New Jersey Civil Service Commission

(Pamela N. Ullman, Deputy Attorney General, on

the statement in lieu of brief).

PER CURIAM

Eugene I. Otto appeals from a Final Decision of the Civil Service Commission finding that his removal as a member of the Irvington Police Department was justified and dismissing his appeal. After reviewing the record in light of the contentions advanced on appeal, we affirm.

On February 1, 2006, Otto was served with fifteen separate disciplinary charges for violating various provisions of the Irvington Police Manual. Various offenses were alleged, including withholding information, failing to perform his duties, insubordination, using derogatory terms, and being untruthful. Following a departmental hearing, all the charges were sustained, and Otto was removed from the force. He appealed to the Merit System Board (now known as the Civil Service Commission), and a hearing was held before an administrative law judge who sustained the following charges: one count of conduct unbecoming a public employee, in violation of N.J.A.C. 4A:2-2.3(a)(6); two counts of being untruthful, in violation of Township Rule 3.10.9; and one count of using derogatory terms, in violation of the Township Rule 3.1.27. The administrative law judge also concluded that there was insufficient evidence to sustain the remaining charges, and they were dismissed. He also concluded that the charge of using derogatory language was not of sufficient import to warrant significant discipline, but the remaining charges constituted "mutinous and disruptive behavior" that, in light of Otto's disciplinary history, warranted his dismissal from the force. The Civil Service Commission agreed, and this appeal followed.

The charges against Otto arose primarily out of an incident that occurred in the early morning hours of September 7, 2004. Otto testified that between 2:00 and 2:30 A.M., he received an anonymous telephone call informing him that "something is getting ready to go down between Lieutenant Mitch[ell], Doral Love and Ana Perez." Mitchell, Love and Perez were all members of the Irvington Police Department, and Otto said the caller gave a specific address at which this incident was to occur, which happened to be Perez's home. Otto understood that Love and Perez had dated one another but had broken up. He also understood that Perez had since begun dating Mitchell.

Otto was at home and off-duty when he received this call. He said he took his video camera, got into his car and drove to the area, arriving at approximately 3:00 A.M. He parked his car at a spot where he would not be observed but yet would have a view of Perez's house. He said he saw Officer Love pull up in his patrol car. He got out, leaving his partner in the car. He went and knocked on the door of Perez's house. Otto said he saw Perez open the door and come out of the house to talk to Love. He characterized their conversation as a "verbal argument," based upon their hand gestures, although he could not hear what they said to each other. A taxi then pulled up, Perez got into it, and the taxi drove away. Love returned to his patrol car and also drove away.

Otto, however, said he remained on the scene to see if anything further developed. At around 6:00 A.M., Love returned. This time, he was out of uniform and driving his personal car. Shortly after Love's return, Mitchell came out of the house and the two men conversed. Otto again characterized the discussion as an argument based upon the hand gestures he saw; he could not hear what the men said to each other.

Otto said that while the two men were speaking, Michael Chase, Chief of the Irvington Police Department, pulled up in an unmarked police car. Chase lowered the window of the car and spoke to the two men. Otto said this took one to two minutes; Chase, who said he just happened upon the two men as he was driving from a personal appointment, said it was just a few seconds. Chase then drove off, and Love and Mitchell departed, as did Otto, who said he had taped all of these events on the video camera he had brought with him. Otto did not immediately tell anyone else what he had witnessed.

Nearly a year later, in August 2005, Otto made his first mention of this incident in a written report to Irvington's Director of Police, Michael Damiano. The principal subject of this report was Otto's complaint that he was being subjected to continual harassment, which commenced, he said, after he told Chief Chase that in his opinion, Chase "was worst [sic] than Chief Steven Palamara during the time he was chief." In this report, Otto made the following allegation:

Chief Michael Chase was present when three Irvington Police officers were involved in a DOMESTIC VIOLENCE incident . . . and as chief of police he did nothing. Chief Michael Chase sworn [sic] in two depositions he was never on . . . [at] said DOMESTIC VIOLENCE incident, time and date. When infact [sic] this officer (Eugene I Otto) saw him on scene and video taped him on scene. Chief Michael Chase has not being [sic] charged with TRUTHFULNESS.

Several weeks later, on September 19, 2005, Otto filed a second report with Damiano, complaining of harassment and a hostile working environment. This report stated in full:

At approximately 1330 on September 5, 2005, while on vacation in Antigua West Indies, at my second place of residence, I received a phone call from my wife, who was in New Jersey. My wife angrily and furiously told me that an unknown person from the police department called the house. Stating "Chief Michael Chase and Sergeant Collura are looking and calling me on the air, also an investigation has already started because I was AWOL."

This officer knew I was within my guide line [sic], for being rightfully on vacation. Chief Michael Chase and the desk supervisor fail [sic] to check the worksheet, which would have prevented the phone call to my resident [sic]. It is my belief Chief Michael Chase is trying to create a hostile environment and problems within my personal life and household.

It is my belief Chief Michael Chase is worst [sic] of a chief, than Deputy Chief Steven Palamara, when he was Chief of Police.

"When myself and Chief Michael Chase use [sic] to meet in the Maplewood Park and the basement of Union Public Library with the FBI discussing and reporting the discriminative operation of Chief Steven Palamara." Now Chief Michael Chase is playing the race card again, by stating ALL THE BLACKS IN THIS DEPARTMENT ARE BEING BRAIN WASHED [sic] BY THE WHITES.

IT'S NOT BETWEEN BLACK AND WHITE

IT'S BETWEEN WRONG AND RIGHT

Because the Internal Affairs Division of the Irvington Police Department is under Chase's supervision, the matter was referred to the Essex County Prosecutor's Office for investigation to avoid the potential for a conflict of interest. Detective Michael Critelli of that office was assigned to investigate Otto's charges. Critelli asked Otto for a copy of the video tape he said he had made, but Otto said he had lost it. Critelli wrote a report in November 2005 in which he said the investigation developed no support for the theory that the 2004 incident involved domestic violence or for Otto's allegation of "brainwashing." He recommended that no further investigation was warranted by the prosecutor's office and that the matter be "returned to the Township of Irvington for any administrative action as deemed appropriate."

In January, the prosecutor's office advised the Township of these results, and the Department's internal affairs division, through Officer Amanda Koontz, started its own investigation. Koontz interviewed Perez, Love and Mitchell, and all three denied that there was any domestic violence of any kind. Perez told Koontz she was embarrassed because Love would come by her house uninvited but that she had consulted with someone from the prosecutor's office, and it had been determined that this conduct did not rise to the level of stalking. Koontz asked Otto for the video tape and, although he said he would give it to her, he never did so. As a result of her investigation, Koontz decided that Otto had lied about Chase being present at an incident of domestic violence and lied in his statement when he said that Chase had committed perjury in two depositions when he said he was not present at a domestic violence incident. Koontz's investigation and her report led to the charges that were filed against Otto.

Otto contends on appeal that the charges against him should have been dismissed as untimely, that his two reports to Director Damiano are insufficient to support the charges against him, and that the punishment of dismissal was arbitrary and unwarranted. We disagree.

I

The first question is whether the charges were timely filed against Otto. A complaint against a police officer must be filed within forty-five days from the time a municipality obtains "sufficient information" to file such charges. N.J.S.A. 40A:14-147. If the officer is the subject of a criminal investigation, this forty-five day period is tolled until the completion of that investigation. Ibid. Otto stresses that under the language of the statute, this tolling provision only applies in the instance of an investigation "of that officer for a violation of the criminal laws of this State." Ibid. (emphasis added). Since it was Chase who was the subject of the investigation by the prosecutor's office, not Otto, Otto argues that the tolling provision never took effect.

While Otto's reading of this portion of the statute is correct, it does not substantively advance his position. The forty-five day period did not begin to run until the Department "obtained sufficient information to file the matter." N.J.S.A. 40A:14-147. Here, Otto was charged with untruthfulness in connection with his allegations that led to the investigation by the prosecutor's office. The Township did not have "sufficient information" to prefer disciplinary charges against Otto until it was notified by the prosecutor's office that it had determined that Otto's statements were not truthful. The disciplinary charges were filed within forty-five days of the prosecutor's office notifying the Township of that determination, and they were thus timely filed.

II

The second issue is whether the record supports the findings made against Otto. Our review of this question is guided by our limited standard of review of administrative determinations.

(1)[W]hether the agency's decision offends the State or Federal Constitution; (2) whether the agency's action violates express or implied legislative policies; (3) whether the record contains substantial evidence to support the findings on which the agency based its action; and (4) whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors.

[Karins v. City of Atlantic City, 152 N.J. 532, 540 (1998) (quoting George Harms Constr. Co. v. N.J. Tpk. Auth, 137 N.J. 8, 27 (1994)).]

The administrative law judge and, in turn, the Civil Service Commission, sustained four charges against Otto, the first of which was conduct unbecoming a public employee in violation of N.J.A.C. 4A:2-2.3(a)(6). This regulation merely states that an employee may be subject to discipline for conduct unbecoming a public employee; it does not attempt to circumscribe the circumstances under which conduct may fit within that structure. The Supreme Court, however, has recognized that "the phrase is an elastic one that has been defined as any conduct which adversely affects the morale or efficiency of the bureau or which has a tendency to destroy public respect for municipal employees and confidence in the operation of municipal services." Karins, supra, 152 N.J. at 554 (citations omitted) (upholding the suspension of an off-duty fireman who used a racial epithet to a policeman during a motor vehicle stop).

In Karins, the Court referred to our earlier decision in City of Newark v. Massey, 93 N.J. Super. 317 (App. Div. 1967), a police disciplinary matter. The City of Newark sought to terminate Massey after he was found guilty of a number of disciplinary charges. Id. at 319. On appeal, the Civil Service Commission reduced the penalty to suspension for six months, and the City appealed to this court. Id. at 318. We reversed the Commission and upheld Massey's removal. Id. at 325. In the course of our opinion, we noted, "The disrespect that Massey manifested toward his superiors was subversive of discipline and was conduct unbecoming a police officer. As the director pointed out, a police force and its responsible officers in many respects constitute a military-type organization and discipline must be enforced." Id. at 323 (citations omitted).

That principle is fully applicable to the instant situation, in which, as the administrative law judge noted, Otto's allegation that Chase had "engaged in criminal conduct seriously undermined the operation of the Township Police Department and had the tendency to destroy the public's respect for that institution."

We are satisfied that Otto's actions in this matter do constitute conduct unbecoming a public employee. He testified at the hearing that he did not initially believe that he had seen any domestic violence in those early morning hours and thus did nothing. If that is correct, it is entirely unclear how he could have charged that Chase witnessed an incident of domestic violence and did nothing. Chase, moreover, did not arrive on the scene until after Perez, the alleged victim of domestic violence, had left. Even if there had been an incident of domestic violence, it would have occurred prior to Chase's arrival.

Otto also contends that his complaints to Damiano constituted protected speech, for which he cannot be disciplined. He points to the test enunciated by the United States Supreme Court in Pickering v. Board of Education, 391 U.S. 563, 568, 88 S. Ct. 1731, 1734-35, 20 L. Ed. 2d 811, 817 (1968). There, the Court set forth a balancing test, weighing the interests of the employee as a citizen commenting on matters of public interest and interests of the employer "in promoting the efficiency of the public services it performs through its employees." Ibid. If the public employee is to be subjected to discipline for comments he has made on a question of public interest, the interest of his employer must outweigh that of the employee.

The Pickering test only applies to comments by an employee upon questions of public concern; if they address a private matter, the employee is as subject to discipline as any employee in the private sector. "Whether an employee's speech addresses a matter of public concern must be determined by the content, form, and context of a given statement, as revealed by the whole record." Connick v. Myers, 461 U.S. 138, 147-48, 103 S. Ct. 1684, 1690, 75 L. Ed. 2d 708, 720 (1983).

When close working relationships are essential to fulfilling public responsibilities, a wide degree of deference to the employer's judgment is appropriate. Furthermore, we do not see the necessity for an employer to allow events to unfold to the extent that the disruption of the office and the destruction of working relationships is manifest before taking action.

[Connick, supra, 461 U.S. at 151-52, 103 S. Ct. at 1692, 75 L. Ed. 2d at 723.]

Our Supreme Court applied the Pickering test in Karins, supra, a case which, as we have noted, involved private off-duty speech by a member of the Atlantic City Fire Department. The Court held that the offensive remark was not protected speech, finding that "the City's interest in maintaining order, discipline, harmony, and a professional working relationship between the police and the fire departments substantially outweigh[ed]" the employee's interest in uttering such offensive comments. 152 N.J. at 551-52. It noted that "[a]ny conduct jeopardizing an excellent working relationship places at risk the citizens of the municipality as well as the men and women of those departments who place their lives on the line on a daily basis." Id. at 552. In our judgment, the same risk inheres in Otto's charges that the Department chief had deliberately shirked his responsibilities and acted out of improper racial motivations.

At oral argument, Otto's attorney contended that upholding this decision will have a chilling effect on officers and deter them from filing proper grievances against their superiors. We are unable to agree. We have no doubt about the ability of our courts to protect an employee who comes forward with valid complaints of official wrong-doing. It is clear from the record that is not what occurred here.

Otto was charged with violating Township Rule 3.1.27 which states:

Members or employees shall not speak disparagingly of any race, person or group nor refer to any person in insolent or insulting terms of speech, or use uncomplimentary or inflammatory terms of speech or forms of address when referring to any person nor willfully antagonize any person with whom the officer comes in contact.

The administrative law judge sustained this charge on the basis of Otto's "uncomplimentary and insulting" references to Chase. Otto contends that this charge cannot stand because the rule is facially overbroad and vague. We do not find it necessary to determine whether this rule can pass constitutional muster because we are satisfied that the remaining charges find ample support in the record.

Otto's remaining argument is that the sanction of removal is too severe and should be reversed. We have noted earlier our deferential review of an administrative determination. That carries through to our consideration of whether a particular sanction is appropriate. In re Herrmann, 192 N.J. 19, 28 (2007). The Supreme Court has set down the following test: "[T]he test in reviewing administrative sanctions is 'whether such punishment is so disproportionate to the offense, in the light of all the circumstances, as to be shocking to one's sense of fairness.'" In re Polk, 90 N.J. 550, 578 (1982) (quoting Pell v. Bd. of Educ., 313 N.E.2d 321 (N.Y. 1974)). We may not overturn an agency's determination with respect to a sanction merely because we might have come to a different conclusion. Herrmann, supra, 192 N.J. at 29 (overturning our determination that a penalty imposed by the Merit System Board was not in accord with progressive discipline because the Board's decision was not shocking to one's sense of fairness and was entitled to deference).

Progressive discipline, moreover, is inapplicable "when the misconduct is severe, when it is unbecoming to the employee's position or renders the employee unsuitable for continuation in the position, or when application of the principle would be contrary to the public interest." Id. at 33.

Here, Otto did not have an unblemished record. He had been counseled on two prior occasions, once for "disrespecting a supervisor" and once for making a false allegation against a sergeant. He had been suspended for two days for insubordination for refusing to submit a report as had been ordered by internal affairs. He had been counseled on two other occasions and reprimanded on another.

We are not persuaded by his argument that removal was inappropriate in light of the fact that the most severe discipline he had received in the past was a two-day suspension. That argument, however, overlooks the gravity of these offenses.

The Final Decision of the Civil Service Commission is affirmed.

 

(continued)

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A-1112-08T3

December 24, 2009