JOHN BENTZ v. BOROUGH OF PARAMUS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5275-07T25275-07T2

JOHN BENTZ,

Plaintiff-Appellant/

Cross-Respondent,

v.

BOROUGH OF PARAMUS,

A Municipal Corporation of

the State of New Jersey,

Defendant-Respondent/

Cross-Appellant.

______________________________________

 

Argued June 23, 2009 - Decided

Before Judges Cuff and Fuentes.

On appeal from Superior Court of New Jersey,

Law Division, Bergen County, Docket No.

L-2011-07.

Roosevelt Porter argued the cause for appellant/

cross-respondent (Mets Schiro & McGovern,

attorneys; Mr. Porter, of counsel; Jordan M.

Kaplan, on the brief).

Eric Martin Bernstein argued the cause for

respondent/cross-appellant (Eric M. Bernstein &

Associates, attorneys; Mr. Bernstein, of counsel

and on the brief).

PER CURIAM

Plaintiff John Bentz, a former police officer in the Borough of Paramus, appeals from the judgment of the Law Division affirming in part and vacating in part the disciplinary sanctions imposed by defendant. The Borough cross-appeals from that part of the judgment that is inconsistent with the sanctions recommended by the hearing officer, as adopted by the municipal governing body.

Plaintiff brought an action in lieu of prerogative writs pursuant to N.J.S.A. 40A:14-150, seeking a de novo review of the decision of the hearing officer, who found plaintiff guilty of insubordination. The hearing officer's findings and recommendations were subsequently adopted by the Borough's governing council. Because the record of the proceedings before the hearing officer were not available, the Law Division conducted an independent trial, taking the testimony of witnesses and reviewing the documentary evidence presented.

Judge Harris conducted a three-day trial that began on April 21, 2008, and ended on April 23, 2008. In an oral decision issued on May 1, 2008, and memorialized in a judgment dated May 20, 2008, Judge Harris upheld plaintiff's demotion from Detective Sergeant to patrolman, vacated a ninety-day unpaid suspension sanction, and in light of plaintiff's retirement, dismissed as moot the condition that plaintiff submit to psychological testing before his reinstatement as a police officer.

In this appeal, plaintiff argues that the trial court's decision finding that he was insubordinate is not supported by the competent evidence, and is therefore arbitrary and capricious. Plaintiff further argues that even if the record supports a finding of insubordination, vacating the ninety-day suspension, while upholding the penalty of demotion, runs counter to the principles of progressive discipline. He thus requests that we remand this matter to the trial court to reconsider the question of sanctions. In its cross-appeal, the Borough challenges the court's decision to vacate the ninety-day suspension.

After reviewing the record developed at trial, and mindful of prevailing legal standards, we affirm substantially for the reasons expressed by Judge Harris in his oral opinion delivered from the bench on May 1, 2008. We add only the following brief comments.

In reviewing the decision of the Law Division reached after a trial de novo pursuant to N.J.S.A. 40A:14-150, we defer to the factual findings that are supported by the record, and will not disturb a conclusion reached from those findings unless they are arbitrary or capricious. Cosme v. Borough of E. Newark Twp. Comm., 304 N.J. Super. 191, 202 (App. Div. 1997), certif. denied, 156 N.J. 381 (1998). We are not at liberty to substitute our judgment for that of the trial judge, even if we would have reached a different result based on the same evidence. Ibid.

Rather than restate the lengthy factual background underpinning this case, we will, instead, incorporate by reference the comprehensive factual findings articulated by Judge Harris in his oral decision. Against this record, we are satisfied that the Borough established, by a preponderance of the evidence, that plaintiff, while holding the supervisory rank of sergeant, failed to recognize the conflict of interest created by his involvement in the investigation of a crime in which someone he knew personally was a prime suspect.

The Borough also proved that plaintiff disregarded directives given to him by officers of higher rank, including a captain and a deputy-chief of police, to disassociate himself from the investigation. This act of insubordination undermined the paramilitary culture of this law enforcement agency, and violated the structure of the chain of command.

Demotion to patrolman, although a harsh penalty, nonetheless lies within the sound discretion of the trial court. Based on these same principles, Judge Harris was free to conclude that adding a ninety-day suspension to this admittedly harsh penalty was unwarranted and unduly punitive under the circumstances.

We affirm substantially for the reasons expressed by Judge Harris in his oral opinion delivered from the bench on May 1, 2008.

 
Affirmed.

(continued)

(continued)

5

A-5275-07T2

July 24, 2009