STEVEN JONES - v. CITY OF MILLVILLE POLICE DEPARTMENT

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0093-10T3

STEVEN JONES,

Petitioner-Appellant/

Cross-Respondent,

v.

CITY OF MILLVILLE POLICE

DEPARTMENT,

Respondent-Respondent/

Cross-Appellant.

________________________________________________

November 15, 2011

Submitted October 24, 2011 - Decided

 
Before Judges Ashrafi and Fasciale.

On appeal from the Civil Service Commission, Docket No. 2009-1484.

Richard M. Pescatore, P.C., attorney for appellant/cross-respondent.

Secare, Ryan & Hensel, attorneys for respondent/cross-appellant City of Millville (Steven Secare, of counsel; Harold N.Hensel, on the brief).

Paula T. Dow, Attorney General, attorney for respondent Civil Service Commission (Todd A. Wigder, Deputy Attorney General, on the statement in lieu of brief).

PER CURIAM

This case involves disciplinary charges against a police officer, Steven Jones, who appeals from a July 23, 2010 final decision of the Civil Service Commission (the Commission) adopting the findings of an Administrative Law Judge (ALJ) that Jones engaged in conduct unbecoming an officer and violated department rules. City of Millville Police Department (MPD) cross-appeals from the Commission's imposition of a ninety-day suspension as reduced by the ALJ from a six-month suspension. We affirm on all issues.

The charges that MPD filed are based on Jones' participation in fraudulent reimbursement claims for meals consumed during out-of-state police training seminars and his untruthful statements during an internal affairs investigation into the matter.

From October 3 to 6, 2005, Jones attended a seminar for which he later sought reimbursement for meal expenses. He provided receipts to Sherry Trout, an administrative secretary, in accordance with MPD's reimbursement policy.1 Ten of the receipts were identical in appearance except for numbering, and none included details regarding the restaurants or meals. Trout prepared a voucher and signed Jones' name at the direction of the police chief, who along with the director of public safety approved the voucher. Jones then received a check for his expenses.

From June 26 to 30, 2006, Jones attended another seminar and sought reimbursement for meal expenses. Jones again submitted receipts, two of which were identical in form and "strikingly similar to those previously submitted in October 2005." Again, Trout prepared a voucher and signed Jones' name at the direction of the police chief, and again the chief and director of public safety approved the voucher and Jones received a check.

From September 25 to 28, 2006, Jones attended a third seminar and sought reimbursement for meals in accordance with MPD's policy. He submitted various receipts that were identical in form and close in number. Trout prepared a voucher and signed Jones' name, and the chief approved the reimbursement.

On March 19, 2008, MPD served Jones with a Preliminary Notice of Disciplinary Action, alleging: misconduct, N.J.S.A. 40A:14-147; conduct unbecoming a police officer; incompetency, inefficiency or failure to perform duties, N.J.A.C. 4A:2-2.3(a)(1); conduct unbecoming a public employee, N.J.A.C. 4A:2-2.3(a)(6); and other sufficient cause, N.J.A.C. 4A:2-2.3(a)(11), including violations of the MPD s rules and regulations.

On November 28, 2007, Frank Nolan, an investigator with the Cumberland County Prosecutor's Office, interviewed Jones regarding the receipts he submitted for reimbursement, and other nonrelated matters. Thereafter, Jones also discussed the investigation with Nolan and the Prosecutor's Office in a telephone call. On March 13, 2008, Frank Guaracini, III, interviewed Jones as part of an internal affairs investigation into the MPD regarding submission of illegitimate receipts for reimbursement for expenses incurred at seminars.

On July 9, 2008, a departmental hearing was held. MPD met its burden of proof concerning the statutory charges, and Jones received a six-month suspension commencing March 18, 2008 and ending September 19, 2008. MPD agreed to merge the common law charges. Jones appealed to the Office of Administrative Law (OAL).

Administrative Law Judge William Todd Miller conducted a hearing on two days. MPD called two witnesses: Trout and Nolan. On October 22, 2009, Trout admitted that she was not aware of any facts indicating that Jones incurred the claimed expenses. She testified that based on her experience processing vouchers for reimbursement, the expenses Jones claimed were typically expected. Trout agreed that the expenses were consistent with other receipts she received and with MPD's reimbursement policy.

At the close of MPD's case, Jones moved to dismiss the disciplinary charges pursuant to N.J.S.A. 40A:14-147, which sets a forty-five day statute of limitations for bringing disciplinary charges on certain grounds. On March 9, 2010, the ALJ denied the motion and issued a written opinion finding no violation of the statute. On April 21, 2010, the proceeding continued with Jones calling his sole witness, Edward Zadroga, a police officer with the MPD. Jones did not testify.

On May 28, 2010, the ALJ issued an initial decision, sustaining the charge of conduct unbecoming an officer, N.J.A.C. 4A:2-2.3(a)(6), and the charge of other sufficient causes including violations of the MPD's rules and regulations, N.J.A.C. 4A:2-2.3(a)(11). The ALJ dismissed all other charges and reduced the six-month suspension to ninety days.

The ALJ observed that Nolan had analyzed the receipts and vouchers that Jones had submitted:

Nolan's analysis confirmed that identical types of receipts were submitted by Jones for three different seminars. The time period spanned several months yet the receipts had striking commonality. There were no restaurant establishments preprinted on any of the receipts. They appeared unreliable and most likely supply store stock. . . . . For example, the ten receipts submitted by Officer Jones for the October 25, 2005, conference in Ocean City, Maryland all bore check numbers within the range from 06250 to 06500. The ten receipts submitted by Sergeant Harvey2 also bore check numbers within the same range. Indeed they were submitted for three separate conferences over a one year period.

Further, the ALJ observed that Jones gave contradictory statements to investigators:

Jones claimed during the investigative interviews by the [Prosecutor's] office and the police department that he turned in the receipts that were given to him from whatever place he ate breakfast, lunch or dinner. He filled in the amounts on them because he received the receipts in blank. . . . . He later stated in another interview that the amounts were filled in by restaurant personnel. . . . . Jones could not explain why or how different restaurants provided the very same sequential receipts. Nor could he explain during the investigation how Harvey and he provided the same sequential receipts even though they were in different geographic locations (Maryland and New Jersey).

The ALJ found that Jones attended the police seminars, incurred reasonable meal expenses that were within the allowable ranges for reimbursable expenses under the MPD policy, and submitted those reimbursement claims in the form of receipts purchased from a supply store such as Staples. Then, the judge elaborated:

The conduct violation occurred during the investigation. Jones was questioned by outside counsel for Millville and by the County Prosecutor's Office. Jones told both investigative bodies that the receipts came from the restaurants he patronized. . . . . This was not true. It was no coincidence that the receipts from numerous days, different restaurants and different states presented were identical in form and sequentially close. They were obviously from a common source. It is highly unlikely that different restaurants would have receipts with almost identical numbers. Nolan's analysis was convincing and reliable that Jones was using stock receipts. . . . . And Jones did not testify, leaving Nolan's testimony unrefuted.

Thus, the ALJ found that Jones untruthfully told investigators that the receipts came from restaurants, instead of explaining that they were purchased from a supply store. Also, the ALJ found the testimony of Trout and Nolan to be "reliable and trustworthy," and he further noted that they had been sequestered and that their testimony was based on official records.

After addressing the applicable law, the ALJ pointed out that although the form of the submitted receipts could have easily been explained, and the amounts claimed for reimbursement were nominal, Jones had been untruthful to the investigators when the receipts were questioned. The ALJ observed that the MPD reimbursement policy did not specify any particular form of receipt, and that if Jones had "admitted that he used store bought receipts, in lieu of official receipts, no discipline should have followed." The ALJ concluded that it was the untruthfulness to investigators that constituted conduct unbecoming a police officer and violations of the MPD Rules and Regulations. Jones appealed to the Commission.

The Commission considered the record, conducted an independent evaluation, and on July 23, 2010, accepted and adopted the factual findings and legal conclusions of the ALJ.3 Thereafter, Jones appealed and MPD cross-appealed.

On appeal, Jones argues that the ALJ's credibility findings are erroneous, and that the ALJ erred by denying his motion to dismiss. MPD contends that the Commission erred by imposing a ninety-day suspension, rather than six months.

This court only disturbs a final agency determination if it was arbitrary and capricious, meaning "willful and unreasoning action, without consideration and in disregard of circumstances." Trantino v. N.J. State Parole Bd., 166 N.J. 113, 201 (2001) (internal quotation marks omitted). A "determination predicated on unsupported findings is the essence of arbitrary and capricious action." In re Boardwalk Regency Corp., 180 N.J. Super. 324, 334 (App. Div. 1981), modified on other grounds 90 N.J. 361, appeal dismissed sub nom. Perlman v. Att'y Gen. of N.J., 459 U.S. 181, 103 S. Ct. 562, 74 L. Ed. 2d 927 (1982).

Where the Legislature has "'delegated a great amount of discretion to the administrative experts, deference must be accorded to the administrative agency's expertise and experience in its domain.'" In re The Harborage, 300 N.J. Super. 363, 379 (App. Div. 1997) (quoting Riverside Gen. Hosp. v. N.J. Hosp. Rate Setting Comm'n, 98 N.J. 458, 469 (1985)). Thus, there is a strong presumption of the agency's reasonableness, and the challenger carries the burden. In re Holy Name Hosp., 301 N.J. Super. 282, 295 (App. Div. 1997).

We reject Jones' contention that the ALJ made inappropriate findings of credibility, and conclude that substantial evidence supports the ALJ's decision to sustain disciplinary charges.

The ALJ specifically found that Jones failed to tell the truth to investigators. Jones offers no reason on appeal to disturb the judge's finding that Nolan and Trout were "reliable and trustworthy." The judge found, "Nolan's analysis was convincing and reliable that Jones was using stock receipts." Jones chose not to testify, leaving Nolan unrefuted. The ALJ concluded that Jones' failure to maintain the high standards expected of police officers constituted conduct unbecoming a public employee and that, by that same conduct, Jones violated the rules and regulations of the MPD. We agree, as substantial and credible evidence in the record supports these findings and conclusions.

Next, Jones contends that the disciplinary charges against him were untimely because "all of the information (not just the 'sufficient' information) was available to the appointing authority well before the [45-]day time period requirement." (emphasis original). We disagree.

The 45-day rule under N.J.S.A. 40A:14-147 offers "a simple and uncomplicated procedural mechanism for the handling of administrative charges against a police officer." Grubb v. Borough of Hightstown, 331 N.J. Super. 398, 405 (App. Div. 2000). In relevant part, the statute provides:

A complaint charging a violation of the internal rules and regulations established for the conduct of a law enforcement unit shall be filed no later than the 45th day after the date on which the person filing the complaint obtained sufficient information to file the matter upon which the complaint is based. The 45-day time limit shall not apply if an investigation of a law enforcement officer for a violation of the internal rules or regulations of the law enforcement unit is included directly or indirectly within a concurrent investigation of that officer for a violation of the criminal laws of this State. The 45-day limit shall begin on the day after the disposition of the criminal investigation.

Accordingly, charges "must be filed 45 days after the date on which the department obtains 'sufficient information' to file the complaint." Grubb, supra, 331 N.J. Super. at 405.

The 45-day rule is not unlimited. When a police department seeks to sanction an officer for misconduct, as opposed to violation of a specific internal rule or regulation, the 45-day rule does not apply. McElwee v. Borough of Fieldsboro, 400 N.J. Super. 388, 394 (App. Div. 2008).

Here, the ALJ correctly found that the 45-day rule did not apply to the charge of conduct unbecoming an officer. Thus, Jones' timing argument could potentially only apply to violations of the MPD's rules and regulations. However, this argument is unpersuasive.

We have stated that "where there is a concurrent investigation of the officer for a violation of the criminal laws of the state . . . the 45-day limit begins on the day after the disposition of the criminal investigation." Grubb, supra, 331 N.J. Super. at 405. Here, MPD was notified that the criminal investigation concluded on February 15, 2008, and served Jones with disciplinary charges on March 19, 2008. Thus, the judge correctly found that charges were brought within the 45-day time period and denied Jones' motion to dismiss.

Finally, MPD urges us to reverse the ALJ's reduction of Jones' suspension from six months to ninety days. It argues that a police officer who undermines an internal investigation should not receive a reduced penalty. We disagree.

The New Jersey Supreme Court has recognized that a police officer "'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.'" Carter v. Twp. of Bordentown, 191 N.J. 474, 485-86 (2007) (quoting Twp. of Moorestown v. Armstrong, 89 N.J. Super. 560, 566 (App. Div. 1965), certif. denied, 47 N.J. 80 (1966)). However, the Court has "cautioned [that] courts should take care not to substitute their own views of whether a particular penalty is correct for those of the body charged with making that decision." Ibid. Thus, a reviewing court will modify a sanction

only when necessary to bring the agency's action into conformity with its delegated authority. The [c]ourt has no power to act independently as an administrative tribunal or to substitute its judgment for that of the agency. It can interpose its views only where it is satisfied that the agency has mistakenly exercised its discretion or misperceived its own statutory authority.

[In re License Issued to Zahl, 186 N.J. 341, 353-54 (2006) (quoting In re Polk License Revocation, 90 N.J. 550, 578 (1982)).]

We ask only whether the sanction was "so disproportionate to the offense, in the light of all the circumstances, as to be shocking to one's sense of fairness." Id. at 354 (internal quotation marks omitted).

In Carter, supra, 191 N.J. at 483, the New Jersey Supreme Court reversed the Appellate Division's decision that removal of a police officer for sleeping on duty was excessive. The Court held that the Appellate Division had erred in "rejecting the well-reasoned analysis of the Board, considering the principle of progressive discipline to be an absolute mandate of law[,] and regarding [the police officer's] prior disciplinary history as insufficient." Id. at 486. The Court recognized that the "proposed sanction [need not] be based on the severity of the current infraction alone," and that an employee's past record "'may be resorted to for guidance in determining the appropriate penalty for the current specific offense.'" Id. at 483-84 (quoting Town of W.N.Y. v. Bock, 38 N.J. 500, 522-23 (1962)). Thus, the Court concluded that the ALJ was not arbitrary or capricious in concluding that

dismissal was appropriate for a police officer who pulls his patrol car to the side of the road to sleep on three successive nights, for periods as long as two hours at a time, who fails as a result to attend to his police duties, and who fails to promptly respond to another officer's call for assistance.

[Id. at 486.]

Here, the ALJ assessed Jones' disciplinary history, found "one prior major disciplinary action for twelve days and a few minor matters," but also found that Jones had several noteworthy commendations. The judge considered the public trust, that truthfulness is vital to law enforcement, and concluded that the six-month suspension should be reduced because "(1) several of the charges are being dismissed, (2) Jones has a minor disciplinary history, and (3) there were no proofs that Jones padded his expenses or was paid more than he was entitled." This result is neither shocking to one's sense of fairness nor disproportionate to the findings.

Considering the record as a whole, we conclude there is sufficient credible evidence to support the Commissioner's decision, Harborage, supra, 300 N.J. Super. at 378 (quoting Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85, 92-93 (1973)), and affirm substantially for the reasons expressed by the ALJ as adopted by the Commission.

A

1 In relevant part, MPD's policy for reimbursement provides:

Claims for reimbursement of the expenses incurred in connection with a convention, seminar, training program or other overnight trip shall be made by voucher only with itemized receipts or invoices attached which specifically and clearly detailed the nature of each expense. Failure to provide the proof required to identify the nature of the expense shall disqualify that expense reimbursement.

2 In his decision, the ALJ noted that Sergeant Harvey is "a friend, colleague and periodic traveling partner of Officer Jones" and related to the police chief.

3 The Commission's decision and order also awarded back pay, benefits, and seniority to Jones for ninety days, the difference between the earlier six-month suspension and the adopted ninety-day suspension. This is an issue on appeal only to the extent that Millville seeks to reinstate the original six-month suspension.