IN THE MATTER OF ROLAN CARTER

NOT FOR PUBLICATION WITHOUT THE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 ROLAN

CARTER, CITY OF CAMDEN

POLICE DEPARTMENT.

___________________________________________________

January 28, 2015

Argued January 6, 2015 Decided

Before Judges Fisher, Nugent and Manahan.

On appeal from the Civil Service Commission, Docket No. 2010-137.

Sebastian B. Ionno argued the cause for appellant Rolan Carter (Ionno & Higbee, LLC and Van Syoc & Weintraub, LLC, attorneys; Clifford L. Van Syoc, D. Rebecca Higbee and Mr. Ionno, on the brief).

Daniel E. Rybeck argued the cause for respondent City of Camden Police Department (Weir & Partners, LLP, attorneys; John C. Eastlack, Jr., and Mr. Rybeck, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent Civil Service Commission (Todd A. Wigder, Deputy Attorney General, on the statement in lieu of brief).

PER CURIAM

Rolan Carter appeals from a final decision of the Civil Service Commission that upheld the termination of his position with the former City of Camden Police Department,1 arguing: (1) there was insufficient evidence to support the Commission's findings; (2) the Commission erred in denying his request to withdraw his administrative appeal in order to pursue his civil action2 in superior court; and (3) the Commission mistakenly failed to dismiss disciplinary charges that were brought more than forty-five days after the charged occurrences. We find no merit in these arguments and affirm.

The record reveals that, in March 2008, Carter was served with a preliminary notice of disciplinary action. Four additional notices were issued in August 2008. Departmental proceedings resulted in final notices sustaining all the charges, and Carter, who was hired in 1997, was discharged effective June 25, 2009.

Carter appealed, and the matter was transferred to the Office of Administrative Law (OAL) as a contested case. Administrative Law Judge Susan Scarola heard testimony over the course of twenty-one days between October 22, 2009, and March 17, 2011.

On March 28, 2011, Carter's civil action was stayed pending disposition of the OAL proceedings. In response, Carter moved to withdraw the OAL appeal. Judge Scarola denied the motion, Carter filed exceptions, and the Commission adopted Judge Scarola's ruling.

On February 13, 2012, after the OAL record was closed, Judge Scarola rendered a 103-page decision, which substantiated the charges and upheld Carter's termination. Exceptions were filed and, in a brief opinion, the Commission adopted Judge Scarola's findings and conclusions.

Carter appeals the final agency decision. We find no merit in the three arguments posed by Carter.

I

In her initial decision, Judge Scarola recommended affirmance of Carter's termination based on a number of charged infractions. There is substantial evidential to support all the judge's findings, which were adopted by the Commission.

A

In the main charge, Carter was alleged to have engaged in conduct unbecoming, insubordination, and failing to respond to radio calls from a superior officer, with respect to a May 13, 2008 motor vehicle stop.3

The record reflects that in May 2008, New Jersey State Police Officer Anthony Zoppina, New Jersey State Police Detective Erik Hoffman, and then-Sergeant Joseph Wysocki of the Camden Police Department, were working with the High Intensity Drug Trafficking Area (HIDTA) Task Force, which consisted of personnel from the FBI, DEA, Attorney General's Office, State Police, Camden County Prosecutor's Office, and the Camden Police Department. On May 13, 2008, Zoppina and Hoffman arranged and monitored the controlled purchase of drugs by one of their confidential informants at a house in Camden. After the purchase, the informant drove away, followed by the troopers, en route to a predetermined location.

Before the informant reached that location, Carter pulled him over for using a cell phone while driving. The area of the stop was a main street in a commercial district, a short distance from the Camden police station.

The informant advised Zoppina by telephone what occurred, and Zoppina responded he would be right there. When Zoppina and Hoffman arrived, they did not exit their vehicle to speak with Carter because they were dressed in plain clothes.

Camden police officers Victor Ortiz and Ramon Birriel heard Carter on the police radio, calling in the stop, and responded in order to serve as his back-up. Hoffman and Zoppina identified themselves to these officers, displaying their state police photo identifications and badges. They also informed the officers that the driver was an informant who had just conducted an operation with them, and there were drugs in his vehicle.

At the time, Carter was standing by the informant's car, speaking with him. The informant told Carter he "work[ed] for the [s]tate [p]olice" but could not produce a driver's license, registration, or proof of insurance. Carter then asked for the driver's name, birthday, and social security number, which he provided.

Thereafter, Birriel spoke with Carter and relayed the troopers' information. Carter claimed Birriel told him only that Zoppina and Hoffman were state police officers and "[t]hey say they know this guy." At that point, Carter looked in the troopers' direction and said either, as the troopers testified, they would "have to wait" or, as Carter testified, "I'll be with you in a minute."

Carter then returned to his vehicle and began working on his computer, obtaining information about the driver as the troopers pulled up to the next intersection and waited. Zoppina stated they wanted to get the informant out of the area as soon as possible so their identities as undercover officers and his identity as an informant would not be compromised. While waiting, Zoppina telephoned Wysocki, who was supervising the operation, and told him what had transpired. Wysocki told Zoppina he would call the officer involved he did not yet know was Carter and have the motor vehicle stop terminated.

Wysocki then called out on the radio on the primary police channel, asking the officer involved to respond on an "off channel" so they could have a conversation. Wysocki's plan was to tell the officer that the driver was working for the police and he should end his traffic stop. When Carter did not respond to Wysocki's calls, Birriel responded on his behalf, telling Wysocki that he was at the scene and the primary officer was on a different channel. Birriel also called out to Carter, informing him he was being called on the radio; Carter acknowledged that but indicated he was busy. Wysocki then attempted unsuccessfully to reach Carter on other channels, following which he drove to the scene.

Wysocki was not in uniform, but he was Carter's superior officer, and they knew each other prior to this event; Wysocki thought they had a good relationship. When Wysocki arrived, the troopers were parked in front of the informant's vehicle, officers Ortiz and Birriel were in a police van, and Carter was in the driver's seat of his police vehicle, working on the computer. Wysocki spoke to the troopers, and they advised what had happened to that point. Wysocki then told Carter "his assistance was no longer needed" and "his car stop was over."

Carter maintained Wysocki instructed him to "let him [the driver] go," to which he responded the driver had a suspended license and active warrants. According to Wysocki, he responded that the State Police were conducting an investigation and would take care of it. By that Wysocki meant the troopers would take custody of the informant and serve the warrants. The priority at that point was to finish the undercover operation, and Wysocki's concern was for everyone's safety, including the informant, who if labeled a "rat" would be at risk. He denied telling Carter to just let the informant go.

According to Wysocki, Carter did not respond to him and continued "fiddling with the mobile data terminal, looking away like he was still doing inquiries on the guy." Wysocki felt he "wasn't getting anywhere at that point," so he asked Carter to call his sergeant, at which point Carter rolled up his window, made a call on his cell phone, and continued with his investigation. Wysocki felt Carter was being disrespectful and rude based upon his facial expression and his having rolled up the window while Wysocki was talking to him.

Carter's version was different. He claimed that upon being told about the suspended license and warrants, Wysocki told him "I don't care. Let him go." Carter expressed discomfort with that order, which he perceived as unlawful, and therefore did not obey.4 However, when Wysocki told him to call his sergeant, he complied. He claimed he rolled up his window because he wanted to speak with his sergeant privately. Carter then called Sergeant Jeffrey Frett and advised of the situation. According to Carter, Frett told him he could not let the driver go.

Simultaneously, Wysocki used the police radio to call Carter's sergeant. Frett answered Wysocki's radio call, and Wysocki asked him to respond to the scene. When Frett arrived, he first spoke to Carter. On direct examination, Frett testified that Carter advised him the motorist had a suspended license and warrants for his arrest, and Wysocki "was ordering him to stop . . . his detention and allow the individual to go due to the fact that he had just . . . made an undercover controlled purchase of drugs for the [s]tate [t]roopers that were on the scene." On cross-examination, however, Frett testified he was not sure who told him about the drug buy that he may have obtained that information from Wysocki or the troopers although he also mentioned hearing it from Birriel and Ortiz.

Carter denied knowing at the time that the driver was an informant. And while he admitted saying to Frett, "if they want to take him they can take him," which was picked up on the police recording of the various radio and phone calls, he denied knowing at the time that the other officers had any desire to take the motorist. In this regard, Frett also stated that when he arrived there was no agreement for Wysocki's team to take custody of the informant.

Frett next spoke to Wysocki, who explained: there was a controlled buy under way; the informant was driving to the predetermined location when Carter intervened; and Wysocki had attempted to end the stop but Carter was not cooperating. Carter overheard some of this conversation and claimed it was the first time he heard anything about the driver being an informant involved in a drug buy.

According to Frett, Wysocki was also upset he had attempted to raise Carter on the radio but obtained no response. Frett stated that Wysocki was acting professionally, but he was "highly agitated" and made it clear he intended to pursue insubordination charges against Carter. During Frett's conversation with Wysocki, Carter got out of his vehicle, walked up to the informant's car, and started writing information down. Carter maintained he was just documenting the motor vehicle stop, as he was required. Wysocki's impression, however, was that Carter was continuing with the motor vehicle stop in violation of his order, so he spoke in a loud voice, informing Carter that his stop was over. Carter responded he was just doing his job.

After speaking with Wysocki, Frett instructed Carter to turn the driver over to Wysocki, who would ensure the warrants were served. Frett then returned to Wysocki and told him to "just take it over."

Wysocki next spoke with Zoppina and Hoffman. He told them to finish their investigation and then process the informant's warrants. At that point, the troopers left with the informant. Carter claimed the informant was allowed to drive, notwithstanding his suspended license, with a trooper as his passenger. The troopers maintained, however, that Zoppina drove the informant's vehicle, with the informant in the passenger seat. The troopers further testified that later that evening they transported the informant to the Camden City Police Administration Building, where they addressed his outstanding warrants by obtaining new court dates.

Carter denied the warrants were served. He stated that after the stop he proceeded to the police administration building because he was concerned the informant had been allowed to drive and because he wanted to make sure the warrants were served. He claimed to having "a gut feeling that something wasn't right . . . with this motor vehicle stop." He waited for fifteen or twenty minutes and never saw the informant brought in for processing. The officer working in central booking also testified the confidential informant was not processed that night; however, that officer also had no idea whether the person should have been so processed and admitted that HIDTA members sometimes handled their own arrestees.

On May 14, 2008, Wysocki prepared a report in connection with the incident and requested the matter be investigated by internal affairs and Carter be charged with insubordination. Carter also prepared a report regarding the incident, dated May 14, 2008, as requested by Frett. Carter denied any wrongdoing, claimed Wysocki had issued an unlawful order, and stated Wysocki was "totally unprofessional and disrespectful" to him.

Sergeant Mario Ortiz (hereafter "the investigator"), from internal affairs, investigated on behalf of the Department. After a thorough investigation, he concluded

Officer Carter had several opportunities to stop what he was doing, take a step back and take a look at the big picture of what was going on. There was an operation going on, very important, very dangerous operation. Undercover officers, informants that were out there. He could have stopped a number of places, stopped what he was doing and handled it differently, but Officer Carter chose not to.

Even after being ordered . . . twice or three times . . . to release and still he would not until his supervisor came on scene who was somewhere else conducting another stop which took more time having the undercover officers out there . . . and the informant . . . out in the open area.

The investigator rejected Carter's contention that Wysocki's order was unlawful. To the investigator, it was clear from all the facts and circumstances that Wysocki was not ordering Carter to let the driver leave the scene free and clear. Rather, Wysocki's priority was to get the informant and the undercover officers off the street with the understanding the warrants would be handled later and, even if Carter believed Wysocki's order was improper, he still was obligated to obey it, after which he could proceed with an appeal. The investigator explained that the situation Carter found himself in was not unusual; with so many different agencies working in Camden, it happened often. The investigator's supervisor, Lieutenant John Sosinavage, agreed that Carter "knew what he was being told to do" to release the driver to the other officers "and he just chose not to do it."

After examining and considering this evidence, Judge Scarola found the witnesses against Carter were credible and "[t]he testimony of Carter that he was targeted or discriminated against was not convincing and seemed to be an excuse for not having to take orders he did not like or want to follow from superior officers." The judge found

[t]here was no doubt that Carter was a good officer on the street and performed his job efficiently and effectively, as almost every witness testified to. However, when it came to following the commands and orders of his superiors, he was more than non-compliant.

The judge found Carter's initial stop of the informant was proper, and it was "not unreasonable" for Carter to initially question Wysocki's order to release the informant and allow the troopers to handle it. But Carter's conduct toward Wysocki was "disrespectful," "insolent," and "less than professional." He "failed to keep open channels of communication or keep himself available by radio to a supervising officer by not responding to his calls or by not calling out when requested to do so." And, the judge found, that Carter "disregarded superior officers' orders to stop his inquiry of the [informant] and allow him to leave with the troopers." Moreover, although "Carter may not have intended it, his actions jeopardized the operation and safety of the persons involved."

For these reasons, Judge Scarola determined that the charges had been proven by a preponderance of the credible evidence.

B

There was also substantial evidence to support the other charges, which we only briefly discuss.

In considering the charges of chronic or excessive absenteeism, the judge found that, in 2007, Carter exceeded his sick time allocation by eighteen-and-one-half days, and he was "aware of his sick-time use and knowingly used sick time in excess of that provided to him in his work contract." Also, Carter failed to provide medical documentation when requested. Thus, the judge concluded these charges also had been proven by a preponderance of the credible evidence.5

In terms of the charges of failure to obey a lawful order regarding the wearing of body armor, the judge found Carter had been ordered to wear his body armor under his uniform, and he disobeyed that order, continuing to wear his body armor over his uniform without obtaining a medical exception. Moreover, when ordered to return to headquarters for counseling, he "failed to appear for three and [one-]half hours."

Finally, in terms of the charges of insubordination arising from parking in an unauthorized location, the judge found Carter was told where he could and could not park, and he admittedly parked in a prohibited spot with "no exigent circumstances to justify the failure to follow the order" and "with full knowledge of the consequences for this action."

C

Judge Scarola recognized the charge relating to the motor vehicle stop was the most serious, and the others were "not major infractions standing on their own." Nevertheless, "taken as a whole," the judge concluded that Carter's "actions were indicative of the attitude of . . . his disrespect for the department for which he worked. It [was] clear that [he] disregarded orders which affected the order of the police force." And the judge found Carter's "explanations for his behavior [were] simply not credible."

Accordingly, the judge determined that Carter

demonstrated repeated conduct of blatant disregard of his obligations as a law enforcement officer and the necessity for him to maintain a level of cooperation required for effective law enforcement. The rules and regulations did not apply to him. The wearing of the body armor outside the uniform after being ordered not to, the improper parking at the Virtua lot just days after being issued an order not to park there, the taking of numerous sick days without providing requested medical docu-mentation, and, most importantly, the attitude of insolence and insubordination exhibited to superior officers on not one, but two, occasions, is indicative of an attitude of disrespect for the discipline and integrity expected of law enforcement personnel.

In terms of the appropriate penalty, Judge Scarola found that, while the absenteeism, body armor, and parking violations "would not in and of themselves appear to warrant major discipline, nevertheless, when taken as a whole, they [were] indicators of an officer who refuses to submit to the authority of his superiors." And "[w]hen the more serious charges of insubordination are included, it becomes quite clear that the good order and discipline of the department are affected by appellant's conduct." The judge explained

[t]he department could not function effect-ively as a law enforcement agency if it could not be certain that members would follow its rules and regulations. A patrol officer cannot pick and choose the rules and regulations that apply to everyone else, but not to him. He or she cannot ignore the lawful orders given by superior officers. If he or she did, the department would become chaotic, and the public interest would be substantially impaired.

Consequently, Judge Scarola determined that the appropriate penalty was removal. The Commission adopted the judge's determinations.

In applying the limited standard of appellate review of final agency decisions "[a]n administrative agency's final quasi-judicial decision will be sustained unless there is a clear showing that it is arbitrary, capricious, or unreasonable, or that it lacks fair support in the record," In re Herrmann, 192 N.J. 19, 27-28 (2007) we conclude that Point I lacks merit. Judge Scarola's extensive factual findings, which were adopted by the Commission, are fully supported by the factual record and the credibility findings and, therefore, those findings command our deference.

II

In 2006, three years before the OAL proceedings were instituted, plaintiff filed a civil action against the City of Camden and others.6 Apparently in response to the Law Division judge's determination that the civil action should be held in abeyance pending disposition of the OAL matter, Carter moved to withdraw his OAL appeal. Judge Scarola heard argument, during which Carter's attorney confirmed he had not previously sought a dismissal because he was using his client's OAL appeal as a means for obtaining discovery, as the following colloquy between his attorney and Judge Scarola reveals

THE COURT: Why didn't you withdraw his [appeal] sooner?

MR. VAN SYOC: Because I had no obligation to and this was the only way I was getting discovery . . . .

THE COURT: I mean, it's as if I sat as a master to oversee[] discovery . . . .

Judge Scarola denied the motion to withdraw, noting the expenditure of "[s]ubstantial time and significant effort," which included twenty-one hearing days7; the judge concluded

[t]he substantial costs and the use of resources by the City and the State cannot be denied or overlooked. It would be a tremendous drain on scarce State and judicial resources to permit the withdrawal of the OAL complaint as it nears conclusion, only to have essentially the same matter proceed to trial in Superior Court.

Carter filed exceptions to this ruling, and the Commission agreed with Judge Scarola by also relying on, among other things, the fact that the appeal has "span[ned] over two years and [twenty-one] days of hearing."

In appealing the disposition of his motion to withdraw, Carter argues that N.J.A.C. 1:1-19.2 grants a party the unfettered right to withdraw "a request for a hearing" and mandates that upon such a request "the judge shall discontinue all proceedings and return the case file to the Clerk." N.J.A.C. 1:1-19.2(a). This rule, however, concerns an attempt to withdraw "a request for a hearing"; here, the requested hearing was permitted, scheduled, and in a state of near completion when withdrawal was sought. Moreover, like any other adjudicatory body, the OAL possesses the inherent authority to avoid the abuse of its processes. See, e.g., Ertag v. Haines, 30 N.J. Super. 225, 229 (Law Div. 1954). And, at such a late stage, fundamental fairness requires consideration of the adverse party's interest in obtaining a final resolution of the issues presented.

The judge possessed the discretion to deny the application, and we find no abuse of that discretion. A conclusion that Carter, or others similarly situated, possess the unilateral right to simply pull the plug on a proceeding so far advanced would be inimical to the interests of justice. We, thus, reject the argument that the motion to withdraw was erroneously denied substantially for the reasons set forth in the written decisions of Judge Scarola and the Commission.

III

The Commission found no violation of the forty-five day rule, N.J.S.A. 40A:14-147, with regard to the charges, including those arising out of the traffic stop, since the Department required sufficient time to investigate the incident and the statute does not preclude that opportunity. We find no merit to Carter's complaint about the timeliness of the charges and the application of N.J.S.A. 40A:14-147, which provides, in pertinent part

[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 informa-tion to file the matter upon which the complaint is based. . . . [and]

[a] failure to comply with said provisions as to the service of the complaint and the time within which a complaint is to be filed shall require a dismissal of the complaint.

[Emphasis added.]

In considering Carter's invocation of this statute, we observe that the forty-five day rule applies only to violations of internal rules and regulations of a department. It does not apply to discipline based upon incapacity or misconduct. McElwee v. Borough of Fieldsboro, 400 N.J. Super. 388, 394 (App. Div. 2008). The Commission correctly argues, therefore, that the forty-five day rule does not apply to the charges of insubordination and conduct unbecoming "pursuant to civil service regulations." See N.J.A.C. 4A:2-2.3(a)(2) and (6); see also Fraternal Order of Police Lodge # 1 Camden v. City of Camden Police Dep't, 368 N.J. Super. 56, 61 (Law Div. 2003). But we need not rest our disposition on this aspect alone because we find no error in the Commission's conclusion that the charges were timely regardless of the limitation of the statute to the violation of internal rules and regulations.

"The statute contemplates that an investigation may be necessary before a decision can be made as to whether a basis exists to initiate disciplinary charges." Aristizibal v. City of Atl. City, 380 N.J. Super. 405, 427 (Law Div. 2005). For example, with respect to the absenteeism charges, the Department became aware of Carter's having exceeded his sick time allowance on July 16, 2007. Although the charge relating to the 2007 absenteeism was not filed until March 17, 2008, the Department was obligated to first investigate Carter's use of time and to consider Carter's assertion that his use of sick time was justified due to stress he was experiencing as a result of alleged discrimination as well as attending his brother's funeral. Consequently, Carter's claim of incapacity due to stress entailed conducting a fitness-for-duty examination, which was not completed until February 2008. Thus, the charges were timely filed in March 2008.

The charge relating to the May 13, 2008 motor vehicle stop was filed on August 4, 2008. In the interim, the Department investigated the incident and obtained reports from all the individuals involved. The report from Frett was not obtained until July 12, 2008. Therefore, the charge was timely filed on August 4, 2008.

IV

We find insufficient merit warranting further discussion in a written opinion in any other argument that we have not specifically addressed. R. 2:11-3(e)(1)(D), (E).

Affirmed.

1In 2013, the police department was replaced by the Camden County Police Department.

2The civil action, commenced in 2006, alleged, among other things, violations of the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -14, and the Law Against Discrimination, N.J.S.A. 10:5-1 to -49.

3The Department's rules and regulations require officers to be civil and respectful to superior officers, to obey lawful orders, and to not be insubordinate. Insubordination is defined as "[f]ailure or deliberate refusal of any member or employee to obey all lawful orders given by a superior officer." The rules and regulations also require on-duty and on-call officers to be available by approved communication. The rules further provide that removal is an appropriate sanction for insubordination, and that anything from a reprimand to dismissal is appropriate for "[r]epeated violations of Departmental Rules & Regulations, or any other course of conduct indicating that a member has little or no regard for his responsibility as a member of the Police Department."

4The Department's rules and regulations define a "[l]awful order" as "[a]ny written or oral directive issued by a superior officer to any subordinate or group of subordinates in the course of police duty which is not in violation of any law, ordinance or any department rule or regulation."

5The judge found a charge of misuse of sick time was not proven.

6We have held that a civil service employee is not precluded from proceeding with a CEPA claim while appealing disciplinary action, Scouler v. City of Camden, 332 N.J. Super. 69, 76 (App. Div. 2000), nor are we now required to determine the preclusive effect of one claim on the other.

7The written decisions of both Judge Scarola and the Commission refer to the hearing as having then lasted twenty-three days. The record on appeal suggests that the hearing lasted only twenty-one days. This discrepancy, however, has no impact on the issues or our disposition of this appeal.