IN THE MATTER OF LAWRENCE NORMAN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

IN THE MATTER OF LAWRENCE

NORMAN, CITY OF CAMDEN

______________________________________________

October 13, 2015

Before Judges Ostrer and Tassini.

On appeal from the New Jersey Civil Service Commission, Docket Nos. 2009-3858 and 2013-2466.

F. Michael Daily, Jr., attorney for appellant Lawrence Norman.

Caryl M. Amana, attorney for respondent City of Camden.

John J. Hoffman, Acting Attorney General, attorney for respondent New Jersey Civil Service Commission (Cameryn J. Hinton, Deputy Attorney General, on the statement in lieu of brief).

PER CURIAM

Lawrence Norman appeals from the Civil Service Commission's final administrative decision. The Commission found that, while employed as a detective in the City of Camden's police department, appellant engaged in egregious misconduct and the Commission concluded that he must be removed from employment. The City and Commission oppose the appeal.

The case relates to incidents that occurred when appellant and George Ingram, another City police officer, had custody of A.F., a juvenile who had sold controlled dangerous substances (CDS) to an undercover police officer. The City brought major disciplinary action and an administrative law judge (ALJ) heard testimony presented in the contested case. See N.J.S.A. 52:14B-2(b). The ALJ issued an initial decision with "findings of fact as to issues of credibility of lay witness testimony," recommending dismissal of the disciplinary action. N.J.S.A. 52:14B-10(c). The Commission made "new or modified findings" and concluded that appellant must be removed. Ibid. Appellant submits that the Commission unreasonably rejected the ALJ's findings and that the Commission's findings and conclusions are unsupported, so that the final decision should be reversed, the disciplinary action dismissed, and he should be reinstated. We affirm.

Procedural History

The City served appellant with a Preliminary Notice of Disciplinary Action (PNDA). N.J.S.A. 11A:2-14, N.J.A.C. 4A:2-2.5(a). The PNDA alleged that Ingram and appellant transported A.F. to a secluded location where they beat him in an effort to get him to disclose the location of drugs that he retained after his drug sale to the undercover officer, that Ingram used his handgun to assault A.F., and that appellant failed to take appropriate action relative to Ingram's misconduct. The PNDA alleged that appellant knowingly and willfully provided a false and untruthful report and that he failed to report the misconduct. The PNDA charged appellant with neglect of duty, disorderly or immoral conduct, misconduct subversive to the good order of the department, violation of department rules and regulations, and conduct unbecoming. The City asserted that appellant s misconduct was sufficient cause for removal.

Appellant requested a direct appeal and the City issued a final notice of disciplinary action and transmitted the matter to the Commission. The Commission transmitted the matter to the Office of Administrative Law (OAL) where it was filed as a contested case and assigned to an ALJ. N.J.S.A. 52:14B-10(c). The ALJ held a hearing and issued an initial decision. The Commission issued its final decision and appellant moved for reconsideration, which the Commission denied. This appeal followed.

Facts

In October 2005, the City police department's High Intensity Drug Trafficking Area (HIDTA) unit was engaged in a "Buy-and-Bust" campaign. In this campaign, after drug dealers sold CDS to undercover officers, the officers provided descriptions of the drug dealers and HIDTA officers moved in to arrest the dealers. Appellant and officers George Ingram and Odise Carr were assigned to the HIDTA unit.

On October 19, 2005, A.F., then a juvenile, sold CDS to HIDTA undercover police officer Prado who observed that A.F. retained "bundles" of drugs. A.F. received a call on his cell phone that police were in the area and he ran from the scene of the sale. Prado's description of A.F. and A.F.'s possession of drugs went out on police radio. HIDTA officers were ordered to move in and arrest A.F. Ingram, driving a police car, and appellant, his passenger, heard the radio report and drove to the relevant area. Ingram left the car to join the pursuit on foot and appellant drove the car to search for A.F.

A.F. ran to a house on Concord Avenue where S.C., an acquaintance, told him to go upstairs, where he went to hide in a closet. HIDTA officers, including Carr, arrived at the house and went upstairs. Appellant drove to the house, observed officers in front of the house, left the police car, and entered the house. Sergeant Frampton directed appellant to stay downstairs and prevent S.C. from leaving.

Officers, including Ingram and Carr, found A.F. hiding in the closet. Appellant testified that from downstairs he heard officers upstairs tell A.F. to show his hands and sounds of a scuffle. A.F. later admitted to resisting arrest and that Carr pulled him from the closet, struck him with something harder than a fist, and handcuffed him. By contrast, Carr testified that he observed Ingram use his handgun to strike A.F. There is no dispute that, during this incident, A.F.'s scalp was lacerated, and began to bleed.

Appellant, who suffers asthma, testified that he felt ill, went to the police car to get his inhaler, and sat in the police car for some minutes. Ingram placed the handcuffed A.F. in the police car in which appellant was sitting. Appellant observed dried blood on the side of A.F.'s face and recognized him from prior interaction. A.F. later told Internal Affairs (IA) officers that he observed appellant in the car, and that he knew appellant as "running man," because appellant had run down and caught drug dealers. A.F. did not know appellant's name. Appellant remained in the passenger seat and prepared arrest papers.

Frampton asked A.F. for the location of the drugs that A.F. had retained after his sale of drugs to Prado. A.F. did not respond and Frampton said to Ingram and appellant, "Get him out of here," but that they should "stay in the area" because the officers had to "2-5," i.e., meet and exchange evidence related to the undercover buy. Ingram then drove the car from the Concord Avenue house with appellant in the front passenger seat and A.F. in the back seat. In issue are incidents between the time Ingram drove the car from the Concord Avenue house and the time that Ingram and appellant delivered A.F. to a hospital, about an hour and a half later.

A.F. testified that after leaving the Concord Avenue house Ingram stopped the police car at an abandoned lot. In the disciplinary case against Carr, heard two weeks before appellant's case, A.F. testified that Carr was one of the officers in the police car and that, at the lot, the officers got out, picked up a two-by-four or stick or pole, and used the pole to beat him. In Carr s case, A.F. testified that that Carr beat him. In appellant's case, A.F. acknowledged confusing Carr and Ingram.

A.F. testified that, in order to stop the beating, he falsely told the officers that he would show them the location of the drugs, that Ingram put him back in the car, and that Ingram drove back to the Concord Avenue house. They walked to an area in back of the house where A.F. pretended to be looking for the drugs that he knew were not there. A.F. testified that the officers and he reentered the car, that there was a second trip to the lot, and that Ingram put a gun to his head to try get him to give the location of the drugs, but that did not work. A.F. testified that they then traveled to a police building where the officers dropped off something and they then drove to a hospital. At the hospital a physician stapled and closed A.F. s scalp laceration and he told the physician, "Them two police officers," referring to Ingram and appellant, had injured him.

Appellant provided a different version of the events. He testified that from the Concord Avenue house, Ingram drove to a park to await Frampton's order to meet and get the evidence from A.F.'s drug sale, which they were to deliver to a police administration building. As they drove, A.F. screamed that he was on probation and that he could not "go back to juvie." A.F. stated that he had given the drugs to a student who attended Veterans' School, so Ingram drove to the school. A.F. then stated that he had lied about giving the drugs to a student and that, while running from police, he had thrown the drugs into a backyard. Ingram drove back to the Concord Avenue house where A.F. led the officers to the yard, but they found no drugs. Thereafter, they met with Frampton, who gave Ingram evidence, including marked money and drugs; instructed Ingram to deliver the evidence to the police administration building; and to transport A.F., who was charged with distribution of CDS, to a hospital to "get him cleared for incarceration."

Appellant testified further that Ingram then drove to a lot - which is in the opposite direction of the hospital. A.F. attempted to move his handcuffed hands from behind himself to in front of himself. Ingram stopped at the lot and Ingram told him to look in the police car for plastic flex-cuffs to secure A.F. Ingram opened the rear driver's side door, A.F. attempted to kick Ingram, and Ingram pulled A.F. by the leg out of the car. Appellant was unable to locate flex-cuffs. He then observed Ingram sitting on top of A.F., who flailed on the ground. A.F. was not a threat, so there was no need to call for back-up. Ingram removed and repositioned the handcuffs on A.F. Sticks and boards were present on the lot; but he did not strike A.F. with anything and he did not see anyone strike A.F. He did not see Ingram put a handgun to A.F.'s head. A.F., once back in the car, slid from the back seat driver's side to the passenger side in an apparent attempt to escape and the officers seized him and buckled him in the rear seat. Blood from A.F. s head was all over the back seat.

Appellant testified that Ingram drove the police car from the lot to the police administration building where he delivered the evidence to an officer. Ingram then drove to the hospital where A.F. was treated. From the hospital, police transported A.F. to detention.

The next day. A.F.'s mother alleged excessive force. In interviews with IA officers, A.F. stated that Ingram and appellant had driven him from the Concord Avenue house to another location that, in appellant's presence, Ingram placed his gun against his head to get him to give the location of his "stash." A.F. stated that the officers removed him from the police car, and beat him with a two-by-four and broomstick or pole and that "running man" used the pole. Police displayed photographs of officers and A.F. identified Ingram, Carr, and appellant as the relevant officers. The matter was referred to the Camden County Prosecutor's Office (CCPO) and a CCPO officer photographed A.F.'s injuries, which included bruises on his arms and trunk. Carr told a CCPO official that, during the arrest of A.F., he observed Ingram strike A.F. The officers were ordered to prepare reports.

In appellant's reports, he wrote that A.F. had resisted arrest. Appellant never included in his report Ingram s later admission to him that the blood on his gun resulted from his striking A.F. on the head and that he saw Ingram pull A.F. from the police vehicle and straddle him in the lot. Appellant explained that he did not include that information in his report because he believed that investigators were only interested in information that he had at the time of the reports and because of potential criminal charges. Criminal charges were filed against Ingram and appellant, but later dismissed. Appellant's counsel showed him Ingram's report wherein Ingram falsely stated that appellant was part of the arrest team, but appellant did not tell a superior officer that the statement was false.

Crime scene investigators went to the lot identified by A.F. where they observed tire impressions, boot impressions, and they found a broom stick or pole. Forensic analysis proved that the tire impressions were consistent with tires on the police car driven by Ingram. Forensic analysis also proved that the footwear impressions at the lot were consistent with Ingram s and appellant s footwear. Investigators also found a broom stick or pole, and forensic analysis proved that fibers consistent with those of A.F. s sweatshirt were on the pole. Appellant's fingerprints were not shown to be on the broom stick or pole. Forensic analysis proved that A.F. s DNA matched DNA from blood on the side of Ingram s gun. Appellant testified that, after the investigation began, Ingram told him that, while in the Concord Avenue house, he had struck A.F. with his gun, accounting for A.F.'s blood on the gun. Ingram testified that he probably struck A.F. with his gun in the Concord Avenue house. Ingram testified that he did not point his gun at A.F. and he did not place his gun against A.F.'s head.

The City brought disciplinary actions against Carr, Ingram, appellant, and Frampton. Ingram resigned from public employment and was not criminally prosecuted. The City prosecuted the disciplinary actions against Carr and appellant. ALJ John Schuster heard Carr's disciplinary case, noted that A.F. had given conflicting and uncertain statements to the police, and concluded that the City failed to prove misconduct against Carr. The Commission adopted Judge Schuster s initial decision and dismissed the charges against Carr.

The Initial Decision

A different ALJ heard appellant's case and issued a 78-page initial decision, detailing the record and making findings of fact. He found that A.F. was severely beaten. He noted that the case against appellant depended in substantial part upon A.F.'s credibility. In the Concord Avenue house, Carr and Ingram were involved in A.F.'s arrest, during which Ingram struck A.F. with his gun and A.F.'s head was lacerated, resulting in the blood on Ingram's gun, as DNA confirmed. Ingram denied that he pointed a gun at A.F. and Carr did not testify that Ingram did so. Appellant was not involved in and did not observe the gun incident in the house.

The judge noted that A.F. had confused Carr and Ingram. In Carr s disciplinary case, heard two weeks before appellant's case, A.F. testified that Carr had been in the police car used to transport him to the lot where the officers beat him and A.F. did not testify that Ingram had pointed a firearm at him. The judge rejected as incredible A.F.'s allegation that an officer pointed a firearm at him.

In appellant's case, A.F. testified that appellant beat him with a pole. The judge reasoned that the match between fibers from A.F. s sweatshirt and on the pole did not necessarily establish that appellant had used the pole to beat A.F. Appellant s fingerprints were not shown to be on the pole. The judge noted A.F.'s "significant knowledge of the justice system," A.F. understood that his allegations against the arresting officers would give him an "edge" in the matter, and the judge found A.F. incredible in pertinent part.

The judge found "troubling" that Ingram and appellant had been ordered to take A.F. to a hospital, yet Ingram drove in the opposite direction of the hospital to a lot where appellant alleged that Ingram re-secured handcuffs on A.F. The judge noted that appellant offered no adequate explanation as to how or why, after the stop at the lot (since A.F. s blood was dried when he first entered the police car), blood got all over the car s back seat. The judge also found "hard to believe" appellant's statement that he believed that IA wanted to hear only about events as of the date of the incident and not about later relevant events, so he did not report Ingram's admission to him that he struck A.F. with his gun. Nonetheless, weighing all of the evidence and recognizing appellant's status as a police officer, the judge concluded that the City did not sufficiently prove its case against appellant. The judge recommended dismissal of the charges against appellant and appellant reinstated.

The Final Decision

The Commission's final decision specifically acknowledged that under N.J.S.A. 52:14B-10(c) it

may not reject or modify any findings of fact as to issues of credibility of lay witness testimony unless it is first determined from a review of the record that the findings are arbitrary capricious or unreasonable or are not supported by sufficient, competent, and credible evidence in the record.

The Commission cited established principles applicable to review of the findings of fact of the judge who observed the witnesses.

The Commission conducted a review of the record. The Commission found that only someone who was present, i.e., A.F., could have given the testimony describing the incidents and location of the lot. The Commission accepted the forensic evidence, including the tire impressions, boot impressions, and pole with fibers matching fibers from A.F.'s sweatshirt, as corroborating A.F.'s testimony. A fact finder is not to give greater or lesser weight to the testimony of a police officer merely because of his or her status as a police officer and the Commission was critical of the ALJ's attributing credibility to appellant based, in part, on his status as a police officer.

The Commission found that Ingram and appellant stopped at the lot where they beat A.F. in an effort to get him to give the location of the CDS. The Commission found that appellant witnessed Ingram putting his gun against A.F.'s head, and that appellant, as charged, wrongfully failed to report these incidents. Relative to the penalty, the Commission cited established standards and concluded that appellant must be removed from public employment.

Conclusions

Where a civil service employee is charged with misconduct related to his or her official duties in a major discipline case, subject to due process, the Commission may impose penalties. N.J.A.C. 4A:2-2.2, -2.3(a). In such cases, the appointing authority bears the burden of proof by sufficient competent and credible evidence, of facts essential to the charge. N.J.A.C. 4A:2-1.4. In administrative cases, facts essential to the claim for relief generally must be proven by the preponderance of the competent and credible evidence. Atkinson v. Parsekian, 37 N.J. 143, 149 (1962).

Where the appointing authority meets its burden of proof in a major discipline case, penalties may include suspension or fine for more than five working days at any time, disciplinary demotion or removal from public employment. N.J.A.C. 4A:2-2.2(a). Factors determining the degree of discipline include the employee's prior disciplinary record and the gravity of the instant misconduct. West New York v. Bock, 38 N.J. 500, 522-24 (1962). Regardless of the employee's disciplinary history, where misconduct is sufficiently egregious, removal may be appropriate. Henry v. Rahway State Prison, 81 N.J. 571 (1980). That is, notwithstanding an unblemished record, egregious misconduct may result in removal from public employment. Carter v. Bordentown, 191 N.J. 474 (2007). Appellant does not challenge the appropriateness of the sanction; rather, he challenges the Commission's findings upon which the sanction was based.

We review the Commission's fact-findings to determine whether they are supported by sufficient credible evidence. In re Taylor, 158 N.J. 644, 657 (1999). Our role is to assess whether the agency's decision was arbitrary, capricious or unreasonable. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). When the agency head reaches findings at odds with those of the ALJ, our review is heightened. In re Lalama, 343 N.J. Super. 560, 565 (App. Div. 2001). That is because, generally, the ALJ, who has the opportunity to assess the witnesses' demeanor, is in a better position than the agency head to make credibility findings. Clowes v. Terminix Int'l, Inc., 109 N.J.575, 587 (1988). Consequently, we are not required to defer to the agency head's credibility findings, if at odds with the ALJ's. Id.at 587-88.

As the Commission noted, the Administrative Procedure Act (APA) has expressly circumscribed the power of an agency head to reject the credibility-based fact-finding of an ALJ. See N.J.S.A. 52:14B-10(c). "When an ALJ ha[s] made factual findings by evaluating the credibility of lay witnesses, the [agency head] may no longer sift through the record anew to make its own decision, which will be affirmed if it is independently supported by credible evidence." Cavalieri v. Bd. of Trs. of the Pub. Emps. Ret. Sys., 368 N.J. Super. 527, 534 (App. Div. 2004). However, the agency head may reject the ALJ's credibility findings if "the findings are arbitrary, capricious or unreasonable or are not supported by sufficient, competent, and credible evidence in the record," so long as the agency head "state[s] with particularity the reasons for rejecting the findings" and make[s] new or modified findings supported by sufficient, competent, and credible evidence in the record." N.J.S.A. 52:14B-10(c); see also Cavalieri, supra, 368 N.J. Super. at 534 (stating "in order to reverse such a factual finding by an ALJ [regarding credibility], the agency head must explain why the ALJ's decision was not supported by sufficient credible evidence or was otherwise arbitrary").

Applying that standard, we are satisfied that the Commission stated with particularity its reasons for rejecting the ALJ's findings. Moreover, those reasons are adequately supported by the record and principles of law.

The Commission noted that the ALJ found appellant more credible than A.F. in part because appellant was a "decorated police veteran without a blemish on his record" and A.F. was a fifteen-year-old with numerous prior contacts with police and a motive to manufacture charges. The Commission appropriately found that these findings were an inappropriate basis for crediting appellant over A.F. A fact-finder may not find a police officer more credible than a non-police officer simply because of his position. See State v. Staples, 263 N.J. Super. 602, 606 (App. Div. 1993) ("Moreover it is 'obviously improper' to imply that police testimony should be accepted, 'not because of its believability but because the witnesses were policemen.'") (quoting State v. Jones, 104 N.J. Super. 57, 65 (App. Div. 1968), certif. denied, 53 N.J. 534 (1969). Appellant's unblemished record was also an inappropriate basis for finding him credible. See N.J.R.E. 608.

It was also inappropriate to discredit A.F. because of his contacts with the criminal justice system. Arrests are inadmissible and unreliable evidence of credibility. See State v. Jenkins, 299 N.J. Super. 61, 73 (App. Div. 1997); N.J.R.E. 609. Adjudications of delinquency are likewise inadmissible. Jenkins, supra, 299 N.J. Super. at 73; N.J.R.E. 609. Moreover, while the ALJ attributed a motive on the part of A.F. to fabricate in order to get police officers in trouble, the ALJ gave no apparent weight to appellant's obvious motive to protect his position. Indeed, the ALJ rejected appellant's explanation regarding the omissions in his report to IA, and his explanation for taking A.F. to the vacant lot.

The Commission also reviewed forensic evidence, including the foot print, tire print, fiber, and blood evidence. The Commission found it more persuasive than did the ALJ in demonstrating that A.F. was beaten at the vacant lot, and a pole was used. The Commission was free to do so.

The Commission also reviewed, in detail, how the record evidence supported A.F.'s version of events more persuasively than did appellant's. A.F.'s allegations were corroborated by physical evidence, and other witnesses. Ingram admitted to appellant he had used his gun to strike the juvenile, accounting for the blood on the gun. At the lot, appellant saw Ingram pull the juvenile from the police car and straddle him. Thereafter, blood was all over the car s back seat. Appellant failed to report these egregious incidents.

In sum, the Commission, with due regard for the ALJ's opportunity to observe witnesses, "determined from a review of the record" that it must reject his "findings of fact as to issues of credibility of lay witness testimony" and found credible the juvenile's testimony that the appellant beat him. N.J.S.A. 52:14B-10(c). We shall not disturb the Commission's decision.