IN THE MATTER OF SFC SCOTT TURNER 4931

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

IN THE MATTER OF

SFC SCOTT TURNER

#4931

____________________________________

October 28, 2016

Argued July 19, 2016 Decided

Before Judges Messano and Suter.

On appeal from the Superintendent, New Jersey State Police, Agency Docket Nos. 2009-0219, 2010-0514.

Scott Turner, appellant, argued the cause pro se.

Christine K. Neeman, Deputy Attorney General, argued the cause for respondent New Jersey State Police (Christopher S. Porrino, Acting Attorney General, attorney; Christina M. Glogoff, Assistant Attorney General, of counsel; Ms. Neeman, of counsel and on the brief).

PER CURIAM

In his December 16, 2014 final agency decision, the Superintendent of the New Jersey Division of State Police (the Superintendent and NJSP) determined that Sergeant First Class Scott Turner violated departmental rules and regulations by: attending law school while on sick leave; willfully disobeying numerous orders to submit to internal affairs investigative interviews; behaving in a disrespectful manner toward the Superintendent and others; and insubordination. The Superintendent ordered Turner's removal from the NJSP, and this appeal ensued.

Before us, Turner argues that the Superintendent's decision was arbitrary, capricious and unreasonable, and contrary to N.J.S.A. 53:1-33 (the Statute) and the Court's holding in Roberts v. State, Division of State Police, 191 N.J. 516 (2007).1 He also contends that the decision violated his due process rights and equal protection under the law. Lastly, Turner asserts that the decision was unsupported by substantial credible evidence.

We have considered these arguments in light of the record and applicable legal standards. We reverse and remand the matter for further proceedings consistent with this opinion.

I.

With brief exception, between June 2008 and May 2009, Turner was on medical leave occasioned by a work-related injury. It is a violation of NJSP policy to be absent from one's home or "place of recovery" during daytime work hours without permission while on medical leave, and the NJSP conducts random monitoring of its personnel to assure compliance. On April 2, 2009, Turner was not home when a trooper assigned to the Compliance Unit visited. Defendant claimed to be walking the dog, but this conflicted with an earlier explanation given by a family member at the house. Later in April, NJSP personnel observed Turner in the area of New York Law School, where he admittedly was enrolled. NJSP alleged Turner had not received permission to leave his residence and opened an investigation.

Turner contends this action, and what followed, was in retaliation for his whistleblowing activities regarding the NJSP's alleged non-compliance with federal consent decrees. The record includes the title page of a complaint brought by Turner in federal district court against, among others, NJSP and the Superintendent.2

On six different occasions, from June 11, 2009 to April 23, 2010, NJSP scheduled compulsory internal affairs interviews with Turner regarding the above incidents, but Turner failed to appear. NJSP personnel hand-delivered the April 2010 notice, and Turner advised them he would not report for the interview. Nevertheless, and for reasons unexplained by the record, on May 13, 2010, Turner appeared for his mandatory interview.

He stated that he had notified either his supervisor, or Sergeant Raymond A. Couts of the Compliance Unit, regarding his intended use of vacation time. Turner acknowledged that he did not provide specific dates in advance for the use of vacation time, but he also claimed to have informed Couts that beginning in January through April 2009, he would routinely use three hours per day, two days per week, as vacation time. Couts, however, told the investigators that Turner never requested a regular weekly period of vacation time.

In November 2009, Turner submitted a certification to the Division of Pensions and Benefits with an anticipated retirement date of June 1, 2010. However, the Board deferred consideration of the request pending resolution of the ongoing internal affairs investigation.

In August 2010, NJSP initiated a second investigation. Earlier that year, Turner had requested approval for outside employment. NJSP required him to submit to a medical examination, but Turner refused. He advised the Compliance Unit that he considered himself "retired" and would no longer comply with NJSP rules and regulations. He also refused to report for another investigative interview.

NJSP lodged preliminary disciplinary charges against Turner on August 13, 2010, alleging violations of departmental rules and regulations, specifically: willfully disobeying orders to remain home unless granted permission to leave, and refusing to cooperate with the investigation; and insubordination, based upon the earlier investigation and Turner's refusals. He was suspended without pay. In January 2011, Turner responded, indicating he was pleading not guilty, and supplied his attorney's name and address.

What transpired thereafter presents a critical issue on appeal. It suffices to say that on July 6, 2011, an acting NJSP lieutenant verified under oath final disciplinary charges against Turner, who was served with the charges by certified and regular mail.3 The verified portion of the charge listed only three violations, and each one incorporated by reference attached specifications. Those specifications, and an additional alleged fourth violation, are contained on three pages bearing the Superintendent's stamped signature and dated April 6, 2011. A scheduled hearing date of August 5, 2011 was listed.

On July 16, Turner filed his response to the charge, again entering a not guilty plea and providing the name and address of his attorney. The matter was referred to the Office of Administrative Law (OAL) and filed as a contested matter on July 20, 2011.

Shortly thereafter, Turner filed a pro se motion to dismiss with the Administrative Law Judge (ALJ). Turner alleged the Superintendent and NJSP "strategically waited to file charges" in violation of the Statute's forty-five-day rule in order to prejudice Turner's federal lawsuit. He claimed the Superintendent had sufficient information to bring charges as early as May 2009 and no later than February 2010. Turner claimed the delay violated the Court's clear guidance in Roberts. See Roberts, supra, 191 N.J. at 524 (noting the Statute requires that disciplinary charges must be brought within forty-five days of the Superintendent's receipt of "sufficient information"). In his statement of facts, Turner asserted that the Superintendent "signed final charges" on April 6, 2011, "more than two years after initiating the investigation."4

In opposition, NJSP set forth the timeline for the investigations, supported in part by the certification of NJSP Captain Frank Crisologo, who had been assigned to the Office of Professional Standards (OPS) since 2003. In relevant part, Crisologo certified that the investigations were not completed until November 2010, after which they were reviewed by supervisors and NJSP legal advisors. After the OPS commanding officer approved the file, it was delivered to the Superintendent who signed and dated the charges on April 6, 2011.

In a letter dated August 30, 2012, the ALJ asked both parties to clarify and supply further briefing. She wrote

Based on the facts cited in the briefs, the Superintendent received the final investigatory report on or about April 4, 2011, and the charges were subsequently served . . . via certified mail on or about July 13, 2011. Please provide a written response to clarify whether the parties believe that dismissal would be warranted under the 45-day rule for the delay between April 4, 2011 (or April 6, 2011, which is the date the Superintendent authorized charges) and July 13, 2011.

NJSP responded by arguing that the forty-five-day rule only applied to the date of filing by the Superintendent, and there was "no applicable deadline related to . . . service." It contended that the investigation ended on April 4, 2011, when the file had been reviewed and forwarded to the Superintendent, and he signed the charges two days later.

Turner argued, for the first time, that the Superintendent never signed the charges on April 6, but rather only stamped them. He asserted that the "charges were not authorized by the Superintendent until July 6, 2011, when they were sworn and authorized for service." Thus, NJSP exceeded the forty-five-day rule.

In her February 6, 2013 written decision, the ALJ adopted the rationale Turner supplied in his reply and concluded "[b]ased on the undisputed material evidence" that the charges against Turner were not filed until July 6, 2011. She found that "the record is devoid of any evidence suggesting that between April 6, 2011, and July 6, 2011, th[e] narrative [signed by the Superintendent] was converted into charges that were sworn or served with a corresponding hearing date established." The ALJ also found that the August 5, 2011 hearing date led to the "logical inference that the July 6, 2011, date" was the filing date for the charges because the Statute required "a hearing be conducted within thirty days of the filing of the charges." Finally, although the Statute was "expressly silent" as to when charges must be served, the ALJ concluded it contained an "implied timeliness requirement." Therefore, even if the filing date was April 6, NJSP failed to serve the charges until July without any justification for the delay. She concluded dismissal was appropriate.

Both sides filed exceptions with the Superintendent, who determined that the charges were filed on April 6, 2011, when he signed and dated them. He rejected the ALJ's conclusion that the Statute contained an implied timeframe for service, and, in any event, Turner evaded proper service ultimately requiring service by mail in July. The Superintendent reversed the ALJ's initial decision and remanded the matter for a hearing.5

The case was docketed again and a hearing date set before the same ALJ. Turner failed to appear, resulting in the ALJ returning the case to the Superintendent. See N.J.A.C. 1:1-3.3(b). Turner supplied an "explanation" for his non-appearance a few days after the timeframe permitted by the regulation. See ibid. (permitting a written explanation for the failure to appear to be submitted within thirteen days). It suffices to say, and the Superintendent found, that Turner did not offer any explanation for his failure to appear at the hearing.

Critically, NJSP sought to return the matter to the ALJ and present its proofs pursuant to N.J.A.C. 1:1-14.4(d) (permitting the ALJ to enter a decision on the merits based upon ex parte proofs). The OAL responded, indicating that since the matter had been returned to the "transmitting authority," it lacked jurisdiction and could only act if the "agency head" directed the matter be "re-transmitted to the OAL." See N.J.A.C. 1:1-3.3(b) (permitting the agency head to re-submit the matter to the OAL). The Superintendent did not re-submit the matter, but rather, citing the OAL's denial of NJSP's request, he sought "proofs" in support of the charges and a written summation.

The Superintendent's final decision recited much of the facts discussed above. He concluded that Turner "abused and misused [NJSP's] medical leave policy over the course of several years[,]" and Turner "willfully and blatantly disobeyed numerous written and verbal orders from commanding officers for a period spanning over a year." The Superintendent found the conduct was "egregious" and ordered Turner's removal.

II.

Turner's first point asserts a variety of reasons why the Superintendent's final decision was arbitrary, capricious or unreasonable. These initially focus on the Superintendent's interlocutory rejection of the ALJ's initial decision dismissing the charges based upon violations of the Statute's timeframes.

We generally have "a limited role" in reviewing the decisions of an administrative agency. In re Stallworth, 208 N.J. 182, 194 (2011) (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579 (1980)). "[I]f in reviewing an agency decision an appellate court finds sufficient credible evidence in the record to support the agency's conclusions, that court must uphold those findings even if the court believes that it would have reached a different result." In re Taylor, 158 N.J. 644, 657 (1999) (citations omitted). We "will reverse the decision of the administrative agency only if it is arbitrary, capricious or unreasonable or it is not supported by substantial credible evidence in the record as a whole" Ibid. (quoting Henry, supra, 81 N.J. at 581). "Reviewing courts should give considerable weight to an agency's interpretation of a statute the agency is charged with enforcing. Appellate courts, however, are not bound by an agency interpretation of a strictly legal issue when that interpretation is inaccurate or contrary to legislative objectives." G.S. v. Dep't of Human Servs., 157 N.J. 161, 170 (1999) (internal citation omitted). Legal issues are subject to our de novo review. Russo v. Bd. of Trs., Police & Firemen's Ret. Sys., 206 N.J. 14, 27 (2011).

A.

Clearly, the Statute is designed to meet "the need for a complete and thorough internal investigation, the need for deference to a related criminal investigation, and the interests of the particular trooper to be free of undue delay in being charged." Roberts, supra, 191 N.J. at 523. The Superintendent is the sole disciplinary authority who can bring charges against a NJSP member. Div. of State Police v. Maguire, 368 N.J. Super. 564, 570 (App. Div.), certif. denied, 181 N.J. 545 (2004). Accordingly, the forty-five-day time period begins to run when the Superintendent receives "sufficient information" of a disciplinary violation. Roberts, supra, 191 N.J. at 526 (citing N.J.S.A. 53:1-33). The Court has held receipt of an investigative report satisfies the statutory requirement of "sufficient information" on which to base a charge. Id. at 524; see also Maguire, supra, 368 N.J. Super. at 570 (finding the Superintendent's receipt of an investigative report satisfies the statutory requirement of "sufficient information"); DeBenedictis v. State, 381 N.J. Super. 233, 237-38 (App. Div. 2005) (similarly interpreting the statute). We reject, therefore, Turner's claim that the charges should have been dismissed because there was sufficient information to have brought the charges at a much earlier date.

Neither party has brought to our attention any case interpreting what the Legislature meant when it chose to start the forty-five-day clock upon the "filing [of] the complaint." N.J.S.A. 53:1-33. The troubling issue in this case is when was the complaint against Turner filed by the Superintendent.

Adopting an argument Turner raised for the first time in response to her written request for clarification, the ALJ determined that "the undisputed material evidence" showed the charges were filed on July 6. The NJSP relied solely upon the certification of Crisologo to explain how and when the charges were "filed." It never had the opportunity to respond to Turner's new argument. Nor did the ALJ have the benefit of testimony to help resolve what was a mixed question of fact and law.

The ALJ herself demonstrated that based upon the documents alone, the "material evidence" was far from "undisputed." She determined the charges were filed in July, rendering the Superintendent's April signature date meaningless. Later in her decision, however, she concluded that the Statute contained an "implied" service requirement, and, even if the charges were "filed" in April, they were not served within forty-five days and therefore must be dismissed.6 Nor did the ALJ's written request for clarification define the issue, which she ultimately resolved without any further evidence or an evidentiary hearing.

We conclude that such an evidentiary hearing was appropriate and necessary to explain through sworn testimony what happened between April, when the Superintendent signed the specifications, and July, when they were verified and served. Additionally, it would be useful for the NJSP to explain whether such a delay was routine or unusual, and Turner should have the opportunity to cross-examine these witnesses. Without any factual record, we cannot conclude whether the charges were "filed" in April, as NJSP contends, or in July, as Turner now contends. We are therefore constrained to remand the matter to the Superintendent who shall again transfer the case to the OAL as a contested case. McGuire, supra, 368 N.J. Super. at 576-77.

B.

In his second Point, Turner contends that his due process and equal protection rights were violated by the delay in bringing the charges, by NJSP's failure to accord him an administrative hearing prior to his suspension, by the negligent or intentional spoliation of evidence and by the likelihood of actual bias on the Superintendent's part so as to taint his responsibility as the ultimate decision maker. See, e.g., In re Carberry, 114 N.J. 574, 586 (1989) (recognizing that "actual bias" by the Superintendent would be grounds for disqualification). Since he failed to attend the hearing before the ALJ, we might conclude that Turner has no ability to raise these issues for the first time on appeal. See, e.g., Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) (recognizing appellate court's reluctance to consider issues not properly presented to the trial court "unless the questions so raised . . . go to the jurisdiction of the trial court or concern matters of great public interest") (quoting Reynolds Offset Co., Inc. v. Summer, 58 N.J. Super. 542, 548 (App. Div. 1959), certif. den. 31 N.J. 554 (1960)). We believe an exception to the general rule applies here.

As noted, Turner filed suit in the federal district court in 2009, naming NJSP and the Superintendent as defendants. In Carberry, supra, 114 N.J. at 584-85, the Court rejected the general proposition that the Superintendent was disqualified from deciding a disciplinary action brought against a trooper based on enforcement of NJSP rules and regulations that the superintendent had promulgated. The Court made clear that if the agency head "is tainted by actual bias, then he or she should not hear the matter." Id. at 585. The Court further stated "[t]he probability of actual bias is grounds for disqualification when the decisionmaker has a pecuniary interest in the outcome of the matter or has been the target of personal criticism from one seeking relief." Id. at 586 (citations omitted) (emphasis added).

The Court cited with approval to a federal district court decision, Rosko v. Pagano, 466 F. Supp. 1364 (D.N.J. 1979). Ibid. In Rosko, the court found it was "constitutionally impermissible for either [the superintendent] or his designee to conduct" the disciplinary hearing, based upon the trooper's dissemination of a report critical of the superintendent. Rosko, supra, 466 F. Supp. at 1369-70. The court ordered the matter referred to the ALJ, and the judge's initial decision and recommendation to be reviewed and the final agency decision to be made by the Attorney General. Id. at 1370.

As noted, Turner has criticized NJSP and the Superintendent's compliance, or alleged lack thereof, with a federal monitor. He has filed a lawsuit which, we were advised at oral argument, is still pending.

We note that contrary to both NJSP's and the Superintendent's assertions, the OAL did not deny NJSP's attempt to have the ALJ render a decision on the merits of the charges. Rather, in conformance with the applicable regulations, the OAL required that the matter be re-submitted by the transmitting agency because the OAL lacked jurisdiction. This was not done.

Despite Turner's refusal to attend the hearing, under these circumstances, we are constrained to reverse the Superintendent's final decision. We remand the matter to the OAL as a contested case so that an ALJ may conduct an evidentiary hearing to determine when the disciplinary charges in this case were "filed," and whether NJSP complied with the Statute. If it did, the ALJ shall consider the charges on the merits. Maguire, supra, 368 N.J. Super. at 577. If the ALJ's initial decision sustains any of the charges, authority to render the final agency decision shall be referred to the Office of the Attorney General. Turner's remaining arguments are moot. Ibid.

Reversed and remanded. We do not retain jurisdiction.

1 N.J.S.A. 53:1-33 provides

A complaint charging a violation of the internal rules and regulations established for the conduct of the State Police 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 applicable time limit shall not apply if an investigation of an officer or trooper 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 person for a violation of the criminal laws of this State. The applicable time limit shall begin on the day after the disposition of the criminal investigation . . . .

A failure to comply with the provisions of this section concerning the service of the complaint and the time within which a complaint is to be filed shall require a dismissal of the complaint.

2 Turner v. New Jersey State Police, et al., No. 2:08CV5163 (D.N.J. Oct. 20, 2008).

3 In its brief and in other documents in the appendices, NJSP avers that Turner was actually served on July 13, 2011.

4 Turner also filed a motion for sanction based upon NJSP's alleged intentional and negligent spoliation of evidence. NJSP filed opposition. The motion was not heard by the ALJ prior to her decision dismissing the charges.

5 We denied Turner's motion for leave to appeal.

6 We agree with NJSP that the Statute contains no such limitations period for service of the disciplinary charge. Therefore, the ALJ's alternative reason for dismissal was erroneous. However, we hasten to add that we can certainly envision a scenario where the failure to serve a trooper for an extended period of time without good cause would violate the Statute's purpose and possibly his or her due process rights.