IN THE MATTER OF TORRES MAYFIELD

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2969-08T1

IN THE MATTER OF TORRES

MAYFIELD.

_________________________

 

Argued May 19, 2010 - Decided

Before Judges Waugh and Fasciale.

On appeal from a Final Decision of the Civil Service Commission, Docket No. 2007-2992.

Christian M. Scheuerman argued the cause for appellant Torres Mayfield (Jacobs and Barbone, P.A., attorneys; Mr. Scheuerman, of counsel and on the brief).

Anthony A. Swan, Assistant City Solicitor, argued the cause for respondent City of Atlantic City (Irving B. Jacoby, City Solicitor, attorney; Mr. Swan, of counsel and on the brief).

Paula T. Dow, Attorney General, attorney for respondent Civil Service Commission (Andrea R. Grundfest, Deputy Attorney General, on the statement in lieu of brief).

PER CURIAM

Torres Mayfield appeals from the final decision of the Civil Service Commission (Commission) terminating him as an Atlantic City police officer for misconduct. We affirm.

Mayfield was charged with violations of Atlantic City Police Department (Department) Rules and Regulations relating to domestic disputes involving J.M. (who is deaf) and S.Q. An Administrative Law Judge (ALJ) conducted extensive hearings and found that Mayfield assaulted J.M. and was untruthful in his response to the investigation. The ALJ dismissed the charges related to S.Q. as untimely. The Commission adopted the findings of fact made by the ALJ and found the termination of Mayfield as a police officer was justified.

In the early morning hours on April 1, 2006, J.M. sought help from police complaining that she was assaulted by her boyfriend, Mayfield. She was bruised and beaten by Mayfield because he thought she was communicating on the computer with an old boyfriend. Mayfield punched her in the face and threatened to hang himself if she left him. That night J.M. was distraught, upset and scared. She was treated in the hospital and photographed. The pictures confirm bruising on the left side of her face in at least three places, left upper arm and chest.

J.M. eventually dismissed her municipal court charges against Mayfield. She refused to testify at the administrative hearing. She did not want to testify against Mayfield because he is the father of her child and they resided together. She was arrested and forced to appear at the administrative hearing. At the hearing she was defiant and appeared distraught, upset and scared.

During the investigation, Mayfield said that on the night in question he was with Rodney Jamal Armstrong and Ali Cottrell. Mayfield told the investigating detective that when they arrived at his house, J.M. said she was hit by a boot thrown by Mayfield's son. Armstrong testified he was at a club with Cottrell, but not Mayfield. Armstrong said Mayfield called him telling him and Cottrell about the boot.

The ALJ disbelieved the testimony from J.M. that she was struck by a boot. The injuries were not consistent with being struck by a boot, and it was clear to the ALJ that J.M. did not want to contribute to the case against Mayfield. The ALJ found that Mayfield was untruthful by attempting to create an alibi and blame his son.

The ALJ found that J.M. communicated effectively with the police at the scene and during the police interviews. The police enlisted a dispatcher familiar with American Sign Language to communicate with J.M. J.M. told the dispatcher Mayfield punched her in the face. She identified Mayfield as a police officer by making a circle signifying "badge" on her left breast. J.M. confirmed that it was the father who beat her by indicating that it was the taller of the two that assaulted her. She also used the sign for "senior" to refer to Mayfield.

The ALJ concluded that Mayfield was guilty of conduct unbecoming a public employee when he beat J.M. and lied during the investigation. The ALJ found that Mayfield not only abused J.M., but lied about it and attempted to procure false testimony from his friend, Armstrong. The ALJ found Mayfield "unfit to be a police officer."

Mayfield argues on appeal the following:

POINT I EVEN IF THE RECORD SUPPORTS A FINDING OF GUILT, TORRES MAYFIELD'S TERMINATION FLIES IN THE FACE OF PROGRESSIVE DISCIPLINE

POINT II THE ADMINISTRATIVE DECISION WAS NOT BASED ON LEGALLY COMPETENT RECORD EVIDENCE

The scope of appellate review of a final agency decision is limited. Aqua Beach Condo. Ass'n v. Dep't of Cmty. Affairs, 186 N.J. 5, 15-16 (2006). We do not ordinarily overturn such a decision "in the absence of a showing that it was arbitrary, capricious or unreasonable, or that it lacked fair support in the evidence." Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963). In reviewing agency actions, "[a]ppellate courts must defer to an agency's expertise and superior knowledge of particular field." Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992). Although an appellate court is "in no way bound by the agency's interpretation of a statute or its determination of a strictly legal issue," Mayflower Securities Co. v. Bureau of Securities, 64 N.J. 85, 93 (1973), if substantial evidence supports the agency's decision, "a court may not substitute its own judgment for the agency's even though the court might have reached a different result," Greenwood, supra, 127 N.J. at 513. We accord to the agency's exercise of its statutorily delegated responsibilities a strong presumption of reason ableness. See Newark v. Natural Res. Council Dep't. Envtl. Prot., 82 N.J 530, 539 (1980), cert. denied, 449 U.S 983, 101 S. Ct. 400, 400, 66 L. Ed. 2d 245, (1980). The burden of showing the agency's action was arbitrary, unreasonable or capricious rests upon the appel lant. See Barone v. Dep't. of Human Servs., Div. of Med. Assistance, 210 N.J. Super. 276, 285 (App. Div. 1986), aff'd 107 N.J 355 (1987).

Mayfield failed to demonstrate that the ALJ's decision was arbitrary, capricious or unreasonable, or that it lacked fair support in the evidence. The ALJ found the injuries sustained by J.M. were caused when Mayfield beat her, not as a result of a boot being thrown by Mayfield's son. J.M. identified Mayfield, not the son, as the perpetrator. The multiple injuries depicted in the photographs are consistent with a beating, not being hit by a boot. Mayfield not only blamed his son but also fabricated two alibi witnesses. Neither Armstrong nor Cottrell were in fact alibi witnesses.

Mayfield argues that even if the record supports a finding of guilt, his termination "flies in the face of progressive discipline."

The principle of progressive discipline has been traced back to Township of West New York v. Bock, 38 N.J. 500 (1962). In Bock, the Court acknowledged that discipline may be based in part on past misconduct. Id. at 522. An employee's past record can be a relevant consideration when determining the reasonableness of the penalty imposed. Id. at 523. However, that is not always the case.

Although progressive discipline is a recognized and accepted principle that has currency in the [Merit System Board's] sensitive task of meting out an appropriate penalty to classified employees in the public sector, that is not to say that incremental discipline is a principle that must be applied in every disciplinary setting. To the contrary, judicial decisions have recognized that progressive discipline is not a necessary consideration when reviewing an agency head's choice of penalty 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.

[In re Hermann, 192 N.J. 19, 33 (2007).]

Progressive discipline has been bypassed when an employee engages in severe misconduct, especially when the employee's position involves public safety and the misconduct causes risk of harm to persons or property. Ibid. "Our appellate courts also have upheld dismissal of employees, without regard to whether the employees have had substantial past disciplinary records, for engaging in conduct that is unbecoming to the position." Id. at 34.

Police officers are special public employees. In Township of Moorestown v. Armstrong, the Court said:

It must be recognized that a police officer is a special kind of public employee. His primary duty is to enforce and uphold the law. He carries a service revolver on his person and is constantly called upon to exercise tact, restraint and good judgment in his relationship with the public. He represents law and order to the citizenry and must present an image of personal integrity and dependability in order to have the respect of the public. . . .

[ 89 N.J. Super. 560, 566, (App. Div. 1965), certif. denied, 47 N.J. 80 (1966).]

Here, after making an independent evaluation of the record, the Commission accepted and adopted the ALJ's decision that termination was the appropriate penalty for assaulting J.M. and lying during the investigation. Mayfield was guilty of conduct unbecoming a public employee contrary to N.J.A.C. 2:2-3(a)6 when he beat J.M., and guilty of failing to adhere to the Department's Rules governing standard of conduct, Atlantic City Police Department Rules and Regulations 3:3-1, when he lied during the investigation. The ALJ determined that the offending behavior alone supports the penalty. In doing so, the ALJ recognized that some offenses are sufficiently severe that dismissal is appropriate regardless of the extent of one's prior history of discipline.

We do not substitute our views of whether a particular penalty is correct for those of the body charged with making that decision. In re Carter, 191 N.J. 474, 486 (2007) (citing In re License Issued to Zahl, 186 N.J. 341, 353-54 (2006)). The question for the courts 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.'" Id. at 484. Under these circumstances, we find nothing arbitrary or capricious about the imposition of the sanction of removal.

 
Affirmed.

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A-2969-08T1

June 3, 2010