MICHAEL KAPPRE v. BOROUGH OF PAULSBORO

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3573-07T33573-07T3

MICHAEL KAPPRE,

Plaintiff-Appellant,

v.

BOROUGH OF PAULSBORO,

Defendant-Respondent.

_______________________________________

 

Argued March 11, 2009 - Decided

Before Judges Parrillo, Lihotz and Messano.

On appeal from Superior Court of New Jersey, Law Division, Gloucester County, Docket No. L-359-07.

Christian M. Scheuerman argued the cause for appellant (Jacobs & Barbone, P.A., attorneys; Louis M. Barbone, on the brief).

Todd J. Gelfand argued the cause for respondent (Barker, Scott & Gelfand, P.C., attorneys; Mr. Gelfand, on the brief).

PER CURIAM

Paulsboro Police Chief Frank Ridinger filed misconduct charges against plaintiff Michael Kappre, a former patrolman and sniper for the Paulsboro Police Department's (Department) SWAT team. Defendant Borough of Paulsboro sought Kappre's termination. Kappre pleaded not guilty to the charges filed and a hearing was held before a hearing officer. Following administrative review, the hearing officer upheld the defendant's decision to terminate Kappre.

Kappre filed a complaint in lieu of prerogative writs, seeking a de novo review pursuant to N.J.S.A. 40A:14-150. See In re Phillips, 117 N.J. 567, 577 (1990) (police officer convicted of charge may obtain a review by the Superior Court, which hears the cause de novo on the record below, and may reverse, affirm or modify any such conviction). Judge Farrell heard additional testimony from Kappre and Chief Thomas Sullivan of the Gloucester County Prosecutor's Officer and rendered factual findings and conclusions in a written opinion, sustaining three charges of insubordination and untruthfulness and one charge of incapacity to hold office. Accordingly, Judge Farrell concluded the charges warranted Kappre's removal.

Kappre appeals from the February 19, 2008 Law Division order arguing:

POINT I:

KAPPRE'S FAILURE TO UNDERSTAND A CHANGE IN STATUS TO LIGHT DUTY DOES NOT ESTABLISH A VIOLATION OF N.J.S.A. 40A:14-147 AS ALLEGED IN COUNTS ONE AND TWO [AND] THERE IS NO SUBSTANTIAL AND CREDIBLE EVIDENCE IN THE RECORD TO ESTABLISH MISCONDUCT.

POINT II:

THERE IS A LACK OF CREDIBLE EVIDENCE TO ESTABLISH THAT KAPPRE COMMITTED MISCONDUCT REGARDING THE EAP ASSISTANCE DIRECTIVE, [AND] GROGAN'S ORDER REQUIRING [KAPPRE] TO CONTACT AND SCHEDULE AN EAP APPOINTMENT [AND] COUNT FOUR MUST BE DISMISSED.

POINT III:

THERE IS NOTHING TO SUSTAIN THE DEPARTMENT'S POSITION THAT KAPPRE HAD BEEN INSTRUCTED ON VALVE SHUTOFF AND CREDIBLE EVIDENCE IN THE RECORD PROVED THAT KAPPRE COMPLETED THE FLOOD REPORT [AND] THE MERGED COUNTS SEVEN AND TEN MUST BE DISMISSED.

POINT IV:

THE SUBSTANTIAL AND CREDIBLE EVIDENCE PROVING KAPPRE'S FITNESS FOR DUTY WAS NOT EVALUATED OR DECIDED BY THE TRIAL JUDGE [AND] IT WAS CLEAR ERROR TO DISCOUNT THE TESTIMONY OF PLAINTIFF'S EXPERT.

We have reviewed the record in light of the arguments raised on appeal and the applicable legal standards. We affirm.

The evidence was presented by various witnesses who testified during the administrative hearing. We briefly describe the facts credited by the court to uphold the various charges.

The Department charged Kappre with failing to inform his commanding officer of a change in duty status following a work-related back injury experienced on July 25, 2005. Kappre was instructed to notify Captain Frank Grogan of any change in status following his medical examination. On August 5, 2005, Kappre was cleared for light duty assignment and executed a form authorizing his clearance. However, he did not report for duty and failed to notify Capt. Grogan. Instead, he telephoned another officer and stated his doctor had not cleared him for work for the remainder of the week. It was not until August 12, 2005, that Kappre called his supervisors to inform them he had been cleared for light duty.

Related to this charge was Kappre's defiant conduct when confronted for not notifying Capt. Grogan. Chief Ridinger testified when he learned Kappre was cleared he attempted to telephone him. Apparently, Kappre changed his telephone number but had not informed the Department. When Kappre could not be reached, Chief Ridinger and Capt. Grogan went to his house. Kappre did not answer the door, despite the appearance that someone was home. Kappre finally telephoned the Department four hours later and admitted his tone during that call was "frustrated and agitated."

The next event involved Kappre's defiance after returning to work. Capt. Grogan ordered Kappre to attend an employee assistance program (EAP). Kappre did nothing for two weeks. He then contacted Lieutenant Christopher Wachter to inquire whether Capt. Grogan was authorized to issue such an order. Lt. Wachter advised the Captain was so authorized. During the conversation, Kappre was angry with Capt. Grogan and said, "I hate the Captain." Kappre still took no action. On August 29, 2005, Kappre was placed on "risk management suspension" because he had not contacted the EAP. During the hearing, Kappre suggested Capt. Grogan had not given him a date by which he was to attend the EAP. He testified he had not ignored the order, but rather was not yet ready to attend.

Another incident involved Kappre's demeanor and his handling of his assignment on October 8, 2005. Kappre, as the most senior officer, was designated the Officer in Charge of the shift that evening. He returned to the station from a duty call to find the Department, located in the basement of a municipal building, flooded with two to three inches of water and raw sewage. Lt. Wachter told Kappre to close the emergency valve in the basement locker room and, as necessary, remove the computers from the floor. Kappre did not shut the valve, and rather than moving the computer equipment from the wet floor, he advised the shift officers to remove their personal belongings from the locker room. Chief Ridinger arrived and ultimately shut the valve himself. When Chief Ridinger confronted Kappre about his failure to shut the valve and remove the computers from the floor, he was grinning, as if he did not take the matter seriously. Kappre continued grinning, even as Chief Ridinger relieved him of Officer in Charge status. Further, Chief Ridinger ordered Kappre to complete his report of the evening's events before he went home. Kappre prepared a report but never supplied it to his supervisors, despite repeated requests.

Kappre was evaluated by Michael Glass, M.D., a psychiatrist. Dr. Glass testified on behalf of defendant. He initially interviewed Kappre in July 2005, during a stress debriefing of the SWAT team members, following his involvement in the shooting death of a criminal suspect. Dr. Glass again interviewed Kappre on September 12 and 30, 2005, and conducted testing, specifically administering the Minnesota Multi-Phasic Personality Inventory-2 (MMPI). At the conclusion of the last evaluation, but prior to receipt of the full MMPI results, Dr. Glass told Kappre he, likely, would be permitted to return to work.

Dr. Glass's report dated October 9, 2005, differed from the preliminary comments he related to Kappre. Dr. Glass noted Kappre's "affect appear[ed] inappropriate to the situation" as he "appeared to be smiling or more accurately smirking" at Dr. Glass. Kappre did not "appear to be taking the process seriously and seemed somewhat amused by the questions . . . . He gave the distinct feeling that while he was fully cooperating he was simply giving lip service to a process that he didn't acknowledge as valuable and as relevant to him." Dr. Glass testified that after he fully evaluated Kappre's responses to the MMPI, he opined Kappre suffered from bipolar disorder, and advised Capt. Ridinger that Kappre needed on-going psychiatric treatment to properly function as a police officer. By letter dated October 24, 2005, Kappre was ordered to follow-up with Dr. Glass to receive psychiatric treatment, which he failed to do.

Kappre resigned from the Paulsboro police force and applied for employment with the police force for the Borough of Newfield. Newfield consulted S. Donald Babcock, Ph.D., who, on April 3, 2006, conducted a status examination of Kappre to determine his fitness for duty. Dr. Babcock administered several psychological and projective tests to Kappre. He determined Kappre was of above average intelligence, and Kappre performed all psychological testing within a normal range, revealing "a very normal individual[,] [w]ithout problems[;]" Kappre had "no emotional disorders, nor any unwarranted character traits." Also, Dr. Babcock determined Kappre distrusts people, had serious difficulty with authority figures, and lacked compassion. Dr. Babcock concluded Kappre was fit for duty. Thereafter, Kappre was hired by Newfield.

The hearing officer rendered an oral decision dismissing seven charges alleged by defendant because they were untimely. He found Kappre was insubordinate with respect to the flood incident, but his conduct was insufficient to warrant termination. However, defendant sustained its burden of proving incapacity by Kappre's failure to follow-up with Dr. Glass, sustaining defendant's right to terminate Kappre's employment.

Kappre sought a de novo review of disciplinary convictions, as provided by N.J.S.A. 40A:14-150. He testified on his own behalf. He related he has participated in many psychological evaluations and only Dr. Glass concluded he suffered a mental disorder. He believed Dr. Glass was told what to say. Kappre defended his actions with respect to his return to duty status, suggesting he was not specifically told he could return to duty and he signed the documents provided by the doctor without reading them, which included the statement he knew he could return to active duty. He also insisted he was not given instructions regarding the shut-off valve. Captain Thomas Sullivan, Kappre's former SWAT team commander, also testified Kappre demonstrated no problems while he worked with the SWAT team.

Judge Farrell concluded the hearing officer incorrectly dismissed six of the ten counts as untimely. The forty-five day limitations period set forth in N.J.S.A. 40A:14-147 applies to charges based on departmental rule and regulation violations, not those grounded in statutory insubordination. In re Carter, 191 N.J. 474, 480 (2003). Although the counts were timely filed, the court, nevertheless, dismissed four of them, as the allegations did not support a charge of insubordination. Regarding the remaining counts, counts one and two were found to reference the same event, as were counts seven and ten. Thus, the related counts were merged. The court concluded defendant sustained its burden and proved insubordination and untruthfulness regarding Kappre's failure to report his change in duty status, refusing to contact EAP, failing to shut the valve, and submit his report regarding the flood incident. Additionally, Judge Farrell found defendant, relying on Dr. Glass's evaluation, demonstrated Kappre's incapacity, and properly terminated Kappre.

The scope of our review of the trial judge's findings of fact is strictly limited. We will not disturb a trial judge's factual findings "'unless we are convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice[.]'" Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974) (quoting Fagliarone v. Tp. of N. Bergen, 78 N.J. Super. 154, 155 (App. Div. 1963)); McElwee v. Borough of Fieldsboro, 400 N.J. Super. 388, 397 (App. Div. 2008). We will not "'engage in an independent assessment of the evidence as if [we] were the court of first instance.'" N.J. Div. of Youth & Fam. Servs. v. Z.P.R., 351 N.J. Super. 427, 433 (App. Div. 2002) (quoting State v. Locurto, 157 N.J. 463, 471 (1999)). However, "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty v. Tp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

On appeal, Kappre's arguments suggest the charges should have been dismissed because the record does not support his conduct demonstrated insubordination. We disagree.

A police officer may be removed from office for the causes of "incapacity, misconduct or disobedience of rules and regulations established for the government of the police department or force[.]" N.J.S.A. 40A:14-147. "[T]he importance of maintaining discipline within the paramilitary organization to a police department" is widely accepted. Rivell v. Civil Serv. Comm'n, 115 N.J. Super. 64, 72 (App. Div.), cert. denied, 59 N.J. 269 (1971). "Refusal to obey orders and disrespect cannot be tolerated. Such conduct adversely affects the morale and efficiency of the department." Ibid. "As long as one remains a member of the police department, he must comport himself properly and not do any acts which tend to impair the morale and discipline of the police department." Id. at 71 (citing Ward v. Keenan, 3 N.J. 298, 300 (1949)).

We find unavailing Kappre's argument suggesting his conduct did not evince the willfulness necessary for insubordination. Kappre notes he never refused to attend EAP; did not know the doctor changed his duty status because he signed the form but did not read it; and was never instructed on how to close the valve. These contentions were rejected by the trial judge who found Kappre's explanations "incredible," and determined he was "untruthful" with his superiors.

The evidence credited by the trial court shows Kappre disobeyed Lt. Wachter's order to close the shut-off valve and preserve the Department's computer equipment from the water influx, and Capt. Grogan's lawful orders to attend EAP, to inform him of any change in duty status, and most importantly, to follow-up with Dr. Glass. Additionally, Kappre was disrespectful to Lt. Wachter in his tone and the content of his remarks about his superior officer and to Chief Ridinger by smirking and laughing while being disciplined.

Deference to Judge Farrell's findings, which include determinations of credibility, is particularly appropriate, as they are "substantially influenced by [the judge's] opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." State v. Johnson, 42 N.J. 146, 161 (1964).

Kappre also argues the trial judge failed to properly credit the expert opinion of Dr. Babcock, who found him fit for office. Judge Farrell acknowledged the conflict in the methodology used by the experts to reach their conclusions. He stated:

[T]his is not a case which requires the Court to evaluate which expert is correct. Dr. Glass's report gave the Borough sufficient cause to question Patrolman Kappre's fitness for duty. He took absolutely no action in response to Dr. Glass' report. He did not seek treatment. He did not seek a subsequent evaluation. No evaluation was performed for approximately [six] months.

We agree. Here, defendant sought Kappre's removal relying on Dr. Glass's psychiatric evaluation. Kappre ignored Dr. Glass's report and Capt. Grogan's directive to follow-up with the doctor to get treatment. Thus, the unrefuted conclusion justified Kappre's removal. Police departments have "an obligation . . . to ensure that their officers are well-trained and mentally stable." Caver v. City of Trenton, 420 F.3d 243, 256 n. 11 (3d Cir. 2005). Deference should "be given to a police department's decision to refer an officer for a psychiatric evaluation based on a supervising officer's recommendation." Ibid.

We are satisfied from our review of the record that the court's findings of fact are supported by substantial credible evidence, and we will not disturb the conclusions based thereon. McElwee, supra, 400 N.J. Super. at 397.

 
Affirmed.

Of the ten counts of misconduct alleged, counts one and two were found to reference the same event, as were counts seven and ten. Thus, Judge Farrell merged count two with one and count ten with count seven.

(continued)

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A-3573-07T3

June 11, 2009