MICHAEL D. BOZARTH v. BOROUGH OF GLASSBORO

NOT FOR PUBLICATION WITHOUT THE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

MICHAEL D. BOZARTH,

Plaintiff-Respondent/

Cross-Appellant,

v.

BOROUGH OF GLASSBORO,

Defendant-Appellant/

Cross-Respondent.

______________________________

November 7, 2016

Argued September 14, 2016 Decided

Before Judges Alvarez, Accurso and Manahan.

On appeal from Superior Court of New Jersey, Law Division, Gloucester County, Docket No. L-995-12.

William F. Cook argued the cause for appellant/cross-respondent (Brown & Connery, LLP, attorneys; Mr. Cook, on the briefs).

David P. Hiester argued the cause for respondent/cross-appellant (The Cushane Law Firm, LLC, attorneys; Thomas A. Cushane and Mr. Hiester on the briefs).

PER CURIAM

In this police disciplinary matter, the Law Division vacated a seventy-five-day suspension for plaintiff Michael D. Bozarth on the basis that a letter of reprimand generated hours after Bozarth failed to secure a suspect allegedly armed with a knife, precluded further discipline on that charge by defendant Borough of Glassboro when the police department sought Bozarth's removal based on his unfitness for duty a week later. Because we cannot find under these circumstances that the department was attempting to punish plaintiff twice for the same offense, we reverse. We deem plaintiff's cross-appeal, in which he claims he should have been afforded a hearing prior to the imposition of the letter of reprimand for the incident on which his suspension was based, to be without merit.

In its August 6, 2010 preliminary notice of disciplinary action and notice of immediate suspension, the department relied on three incidents

[1] The inability to make acceptable progress towards improving your decision making ability and becoming more confident and assertive as documented in the Performance Improvement Plan (PIP) developed by [the sergeant overseeing your work], which began on January 28 and ended on July 1, 2010.

[2] The need for remedial Simunitions Training after receiving unsatisfactory grades in the areas of "proper communication" (towards a suspect) and "identifying the increase of a threat" during a tactical firearms scenario on April 16, 2010.

[3] The failure to detain a suspect during an aggravated assault (stabbing) investigation after the suspect had been identified to you by other responding officers and allowing that suspect to approach those same officers from behind as well as the alleged victim of the incident.

The facts underlying each of these incidents are essentially undisputed and can be briefly summarized.

After serving eight years as a patrolman receiving average reviews, the department in January 2010 put Bozarth on a six- month performance improvement plan. Bozarth was to make more motor vehicle stops, increase his number of field contacts, interviews and proactive patrols and improve his "ability to make more decisions independently."

Although Bozarth made progress in all areas over the course of the review period, the sergeant overseeing his work continued to express reservations about Bozarth's decision-making abilities and confidence level. Three months into the plan, Bozarth participated in the department's semiannual simulated weapons training, in which an outside company takes the handguns and rifles the officers use and modifies them to shoot paintball cartridges. The officers then participate in a variety of realistic scenarios in which they are called upon to either use deadly force or desist from doing so.

Bozarth did not perform well. When the instructors could not get acceptable or safe responses from him during the training, he was required to attend the next day's session for additional training. The department had never before had to require an officer to return the next day for additional training.

In the final two months of his improvement plan, Bozarth's supervisor faulted him on three occasions for continued issues with decision-making skills. In one of those incidents, Bozarth circumvented the chain of command on a minor issue. His supervisor wrote that in his opinion, Bozarth went around him to avoid making the sergeant aware of "his inability to make a very minor decision." On another occasion, Bozarth failed to immediately report he had backed his patrol car into another police car, first seeking out the advice of another officer before advising the corporal of the incident.

On the expiration of the improvement plan, Bozarth's supervisor continued to express concern about Bozarth's "lack of confidence in himself and the decisions that he routinely makes." As a result, Bozarth was to be put on another six-month improvement plan. On July 30, 2010, just weeks after the expiration of the first plan, Bozarth experienced the lapse of judgment that formed the basis of this action.

At approximately 2:45 a.m., Glassboro police were dispatched to a local restaurant to respond to the report of a man stabbed with a knife. When the first units arrived, they learned the man had been stabbed by a former girlfriend who was still on the scene. The officer interviewing the victim directed Bozarth to the suspect. Although Bozarth spoke to the woman, he did not detain her or frisk her for a weapon. As a consequence, the suspect was allowed to approach the other officer from behind, threatening the officer and the victim. Other officers on the scene restrained the suspect, and no one was hurt. Bozarth's fellow officers were, however, alarmed by Bozarth's conduct and reported it to their commanding officer, a corporal.

That corporal immediately interviewed the officers on the scene as well as Bozarth. Bozarth admitted failing to detain the suspect and allowing her to come within inches of the officer who was interviewing the victim. He had no explanation for his failure to adequately back up his fellow officer and admitted he had exercised poor judgment in the encounter. After consulting with the sergeant overseeing Bozarth's performance improvement plan, the corporal and sergeant spoke with Bozarth and informed him that they intended to recommend that he receive a performance notice reprimanding him for his failure to take appropriate action at the scene. Within hours, the corporal drafted a two-page report of the incident recommending Bozarth be reprimanded and forwarded it up the chain of command.

A week later, the department issued Bozarth the August 6, 2010 preliminary notice of disciplinary action seeking his removal and the notice of immediate suspension pending a fitness-for-duty examination described above. At the August 11, 2010 fitness-for-duty examination, Bozarth reported experiencing significant emotional and financial stressors following his separation from his wife in August 2009, when he discovered she was having an affair. Following the death of her boyfriend from a drug overdose, Bozarth's wife returned to the marital home where he was living with the couple's four young children. He described that period as the "hardest time" of his life.

Regarding the incident that precipitated his suspension, Bozarth reported having no explanation for his conduct, saying "I have no excuse maybe I was preoccupied or maybe I was tired." Following that interview, the psychologist conducting the evaluation for the Borough found him "presently unable to maintain sufficient emotional, behavioral, and cognitive control to safely and effectively perform the essential functions" of a police officer and pronounced him psychologically unfit for duty.

Bozarth contested his removal, and because Glassboro is a non-civil service jurisdiction, sought discovery and an administrative hearing under the framework established by N.J.S.A. 40A:14-147 to -151. The Borough promptly provided discovery but a hearing was not scheduled, apparently because Bozarth wanted to secure his own psychological expert. Bozarth was evaluated by a psychiatrist of his own choosing in April and May 2011, more than eight months after his suspension.

In the course of that evaluation, Bozarth again admitted the lapse in judgment which allowed a suspect to advance on another officer and the victim of a stabbing. The psychiatrist noted that Bozarth "acknowledged his mistake but was at a loss to explain his behavior." Bozarth advised the psychiatrist that he was performing under severe stress following his wife moving out of their home in 2009. Bozarth also reported that he learned after his suspension that his wife had been conducting an affair with a sergeant in the police department. In his report, the psychiatrist wrote that

[a]ccording to [Bozarth], [the sergeant] is married and he, [Bozarth], began to hear rumors about the relationship. Later it was confirmed when they were found by a Harrison Township Police Officer on a private road. The Sergeant was apparently on duty when this happened. [Bozarth's] wife acknowledged that the affair began in 2009 but [Bozarth] didn't learn about it for sure until 2010. His confirmation came a few months after his misdeed and suspension.

. . . .

[Bozarth] says that the entire Department was aware of his wife's affair and never told him. The circumstances came to a head with [Bozarth's] suspension when [the sergeant] was promoted to Lieutenant and another officer complained that he had been promoted in spite of having an affair with a subordinate's wife. [Bozarth] feels that there has been no attention paid to the Lieutenant's behavior.

Based on his evaluation, the psychiatrist opined "that while [Bozarth] had some problems in his past work as a Glassboro Police Officer he was counseled and participated actively in a remedial program with relatively good results." The psychiatrist noted a combination of stressors on Bozarth at the time of his performance problems including his wife's affairs with a drug addict and a sergeant in the department, his mother's long illness, credit card debt and "the early phases of diabetes" diagnosed many months after his suspension. The psychiatrist opined that "none of these issues make him unfit to be a police officer. They simply render him in need of assistance to reassert his fitness for duty and to make him stronger and more effective as a police officer." The doctor concluded that Bozarth "did make an error in judgment and [t]he Department must respond to that seriously and vigorously but the real answer is in the appropriate mental health treatment which will render him once again fit for duty and a good officer."

After receiving that report, counsel for the parties agreed to postpone the administrative hearing to allow Bozarth to be re-evaluated by the Borough's psychologist. In August 2011, the Borough's psychologist re-examined Bozarth and issued an updated opinion in which she declared him now fit for duty.

The psychologist noted that following the psychiatric evaluation the preceding spring, Bozarth had engaged in counseling. Bozarth reported that counseling had helped him enormously in dealing with the problems he faced with the end of his marriage, his impending bankruptcy and the loss of his home. He had moved in with his father and his ex-wife and children were living nearby with his mother-in-law, with whom he reported having an excellent relationship. As a result, he saw his children nearly every day and his living situation was much less stressful. The psychologist concluded that Bozarth

experienced a large number of interpersonal stressors over the past several years which culminated in impaired functioning in more than one major life area. He was diagnosed with an adjustment disorder and has recently entered into an ongoing treatment relationship. He also has received treatment for several medical conditions which were previously untreated or undertreated. For the most part, his interpersonal stressors have been addressed and while the adjustment disorder diagnosis remains, there does not appear to be current evidence of impairment in functioning which would preclude safe and effective performance at [Bozarth's] place of employment.

Notwithstanding the conclusion of the Borough's own psychologist that Bozarth was now fit for duty, the Borough determined to proceed to seek Bozarth's removal on the basis that he was unfit and that in failing to secure the aggravated assault suspect on July 30, 2010 had violated the department's rules and regulations, specifically 2.26 (neglect of duty), 3.1.1a (protect life and property), 3.1.1b (preserve the peace), 3.1.1c (prevent crime), 3.1.1h (take appropriate action in aiding fellow officers as needed), 3.1.5 (coordinate efforts with other employees of the department to achieve department objectives) and 4.1.1 (performance of duty).

A disciplinary hearing before a neutral hearing officer was conducted on October 17, 2011. Bozarth did not testify nor offer any witnesses on his behalf. The chief of police, the sergeant who supervised Bozarth's improvement plan, the officer on whom the suspect advanced in the July 30, 2010 incident, the corporal who counseled Bozarth following that incident and wrote a report the same day recommending that Bozarth be reprimanded and the lieutenant to whom the corporal provided his report, who conferred with the chief about sending Bozarth for a fitness-for-duty exam, all testified on behalf of the Borough.

Critically, none of those witnesses testified that they ever issued Bozarth the notice of reprimand subsequently discovered in his personnel file. In fact, there was no testimony regarding a notice of reprimand at all. The corporal who authored the two-page report recommending that Bozarth receive a reprimand, which was attached to the notice bearing his name found in the file, testified that he forwarded the report to the lieutenant and did nothing further. The lieutenant testified that after receiving the report, he met with the chief and another lieutenant and the three determined to send Bozarth for a fitness-for-duty exam. The chief testified that meeting occurred "at least two days after the event." The chief also confirmed that the three concluded at that meeting to immediately suspend Bozarth pending a fitness-for-duty exam and to seek his removal from the force.

The notice of reprimand included in the appendix is not complete. It includes the names of the corporal and Bozarth and references the occurrence date of July 30, 2010, but the spaces provided for the signature of the issuer and the date of issue are both blank. The notice does, however, bear the initials and badge number of the chief of police in the lower left corner and has the corporal's two-page report attached. In his reply brief on his cross-appeal, Bozarth claims he was unaware of the existence of the written reprimand "until he filed his de novo appeal in the Law Division, and he only highlighted it in that forum to show that he had already been disciplined for his conduct on July 30, 2010."

The hearing officer in an initial decision of January 5, 2012, determined that the department's Employee Assistance Program was "ideally suited for this situation," and that he would defer his final decision in the matter to allow Bozarth to take advantage of the program. Bozarth did so and returned to the psychiatrist who had previously evaluated him and received a report that he was fit for duty. The hearing officer subsequently issued a final decision five months later on June 7, 2012. Finding on the basis of the evidence presented and Bozarth's nine-year employment record that termination was not justified, the hearing officer imposed a seventy-five-day suspension without pay.

In his written decision, the hearing officer criticized the Borough's reliance on Bozarth's performance improvement plan, which formed the basis, "in significant part, for the [c]hief's decision to terminate," stating that "[the chief] and I must have read different reports." Specifically, the hearing officer concluded that the criticisms of Bozarth's decision-making abilities in the plan were vague, with the exception of two or three incidents, which "are not sufficient to warrant dismissal." The hearing officer acknowledged the seriousness of Bozarth's failure to back up a fellow officer in the stabbing investigation, but considered the stress Bozarth was suffering at the time, particularly the "open secret" of the affair his wife was having with a senior officer.

The hearing officer acknowledged that Bozarth had asked his superiors not to investigate these allegations, but found that the alleged affair, which "was with Bozarth's immediate

superior . . . , who, while on duty was found in Harrison Township by a Harrison Township police officer in a Glassboro patrol car having relations with Mrs. Bozarth," should have been investigated and was, instead, "terribly mishandled." The hearing officer wrote

Why is this important? Because the affair was an open secret in the Glassboro Police Department. Clearly Bozarth had to be embarrassed. But, apparently his feelings were not important, given the manner that those in authority dealt with the allegations and the "rumor." The indifference demonstrated by those in authority is absolutely unacceptable and a perfect example of poor decision making.

The Borough adopted the hearing officer's decision and issued Bozarth a final notice of disciplinary action imposing a seventy-five-day suspension without pay. Bozarth sought de novo review in the Law Division pursuant to N.J.S.A. 40A:14-150.

Conducting a de novo review of the record, the Law Division judge, in a written decision, found that following the July 30, 2010 stabbing investigation, the corporal

issued a letter of reprimand, which contained a detailed two page narrative of the underlying incident. The narrative indicated that [the corporal] and [the sergeant supervising Bozarth's improvement plan] met with Officer Bozarth and advised him that it was their intention to recommend to [the lieutenant] that an official letter of reprimand be issued and placed in his file. The letter of reprimand, initialed by [the chief], was issued that day and placed in Bozarth's professional file where it remains to this day.

The judge also found, among other things, that "Bozarth's wife of five years was having repeated, clandestine, on duty sexual liaisons with one of Bozarth's immediate supervisors."

The Law Division judge concluded that after Bozarth's immediate supervisor and the corporal in charge of the shift on July 30, 2010 decided to recommend Bozarth be disciplined, "Bozarth was then served with the letter of reprimand, which was endorsed via the initials of the chief of police." The judge concluded "that the act of issuing the letter of reprimand for the July 30, 2010 incident precludes the Borough's ability to issue subsequent, more severe punishment through the 75 day suspension without pay (or for that matter removal from the force) for the very same offense."

The judge rejected Bozarth's claim that the letter of reprimand should be removed from his file because it was issued without notice and an opportunity to be heard. Although agreeing with Bozarth that the letter of reprimand constituted minor discipline under the department's rules and regulations, and affects an eligible candidate's promotional score,1 the judge noted that the controlling statute, N.J.S.A. 40A:14-147, requires notice and a hearing only for charges carrying penalties of removal, suspension, fines or reductions in rank. The judge also rejected Bozarth's argument that the preliminary notice of discipline did not adequately advise him that the Borough sought his removal for his conduct on July 30, 2010, as opposed to his unfitness for duty, of which the July 30 incident was but one example, and that the hearing officer exceeded the permissible scope of discipline by imposing a suspension without pay instead of removal.

The judge ultimately determined that although the hearing officer did not exceed his authority in recommending a seventy-five-day suspension without pay, because Bozarth "had already received a written letter of reprimand regarding that same incident, the subsequent [preliminary notice of disciplinary action] and resulting 75 day suspension without pay was an inappropriate form of double punishment, the results of which must be set aside." In a subsequent decision, the judge ordered the restoration of all of Bozarth's accumulated leave time from the date of his suspension on August 6, 2010 and awarded him counsel fees of $17,625.

The Borough appeals, contending the Law Division erred in concluding the seventy-five-day suspension constituted double punishment for the same offense, and that the award of counsel fees and reinstatement of accumulated leave time during the period of Bozarth's suspension should be reversed. Bozarth cross-appeals contending he was entitled to notice and a hearing prior to the imposition of the letter of reprimand, and that the Law Division erred in limiting his fee award on the basis that the costs of his defense were paid by the FOP [Fraternal Order of Police] national legal defense plan.

We begin our discussion with a review of the framework governing police disciplinary proceedings in non-civil service jurisdictions such as Glassboro. Pursuant to N.J.S.A. 40A:14-147, a police officer cannot be removed "for political reasons or for any cause other than incapacity, misconduct, or disobedience of rules and regulations" and may not "be suspended, removed, fined or reduced in rank" without "just cause." Ruroede v. Borough of Hasbrouck Heights, 214 N.J. 338, 354 (2013). An officer must be apprised of any such charges against him by way of written complaint and is entitled to a hearing. Ibid. The appointing authority bears the burden of proving the charges by a preponderance of the evidence. In re Phillips, 117 N.J. 567, 575 (1990).

If the hearing officer upholds the charges, the officer has the right to have the decision reviewed in the Superior Court, which considers the matter de novo on the record. N.J.S.A. 40A:14-150. Although the Law Division may allow supplementation of the record by either party, its powers are statutorily limited in that it may only reverse, affirm or modify a conviction; it may not remand to the hearing officer for a new disciplinary hearing. Ruroede, supra, 214 N.J. at 360.

Our role in reviewing the de novo proceeding is "limited." Phillips, supra, 117 N.J. at 579. Unlike the Law Division, we do not ordinarily make new factual findings, but merely "decide whether there was adequate evidence before the . . . [c]ourt to justify its finding[s]." Ibid.; see also State v. Johnson, 42 N.J. 146, 161 (1964). The law is well settled that unless the decision is "'arbitrary, capricious or unreasonable' or '[un]supported by substantial credible evidence in the record as a whole,' the de novo findings should not be disturbed." Phillips, supra, 117 N.J. at 579. Our review of the Law Division's legal conclusions, of course, is plenary. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995) ("A trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference.").

Keeping those principles in view, we find several aspects of this record troubling. First, the proceedings were unusually protracted. As our Supreme Court has noted, "the statutory scheme envision[s] that disciplinary proceedings be brought to a prompt conclusion, for the sake of the public, the employer, and the charged individual." Ruroede, supra, 214 N.J. at 360. Although the department promptly initiated disciplinary proceedings, serving Bozarth with a preliminary notice of disciplinary action and suspending him within a week of the July 30, 2010 incident, the disciplinary hearing, which took only one day to complete, did not take place until fourteen months later.

That delay shifted the focus from Bozarth's conduct and fitness for duty at the time of his suspension to the Borough's psychological re-evaluation of Bozarth a year later, or even almost two years later when the hearing officer finally issued his ultimate decision after allowing Bozarth to avail himself of the Borough's Employee Assistance Plan. A disciplinary hearing is a statutory proceeding under N.J.S.A. 40A:14-147, which is to occur within thirty days of service of the charges. While failing to hold a hearing within thirty days is not always fatal,2 see In re Frey, 160 N.J. Super. 140, 143 (App. Div. 1978), there is, nevertheless, no justification for disciplinary proceedings to drag on as these did.

Second, we are aware of no authority that would allow a hearing officer to defer a decision for the purpose of referring the officer to counseling, as if the hearing officer were the officer's employer, instead of a neutral arbiter. While a hearing officer is empowered to hear the evidence, make his own findings and generally substitute his judgment for that of the appointing authority as to both discipline and penalty, cf.
Henry v. Rahway State Prison, 81 N.J. 571, 577-78 (1980), he does not assume the role of the appointing authority vis-a-vis the officer.

Third, although we have no quarrel with the hearing officer considering Bozarth's psychological state in considering both the discipline and the penalty, we question whether certain of the hearing officer's findings have adequate support in the record. Specifically, the hearing officer obviously concluded that the department "terribly mishandled" the "open secret" of the affair Bozarth's wife was allegedly having with a senior officer.

We note, however, that of the officers who testified, only the chief admitted having any knowledge of the rumors at the time they were evaluating Bozarth's work performance. The sergeant who supervised Bozarth's performance improvement plan testified his only knowledge of the alleged affair came from Bozarth. He reported the matter to the head of internal affairs, who reported it to the chief. Further, there is absolutely no competent evidence in the record to support the hearing officer's finding that the sergeant "while on duty was found in Harrison Township by a Harrison Township police officer in a Glassboro patrol car having relations with Mrs. Bozarth." Each of the officers asked about it at the hearing denied knowledge of any report of the incident. The only references to the incident in the record are in Bozarth's expert's report relating Bozarth's statements to the psychiatrist and Bozarth's counsel's questions about it to the witnesses on cross-examination.

Our review, of course, is of the Law Division's fact-finding, not the hearing officer's. See Johnson, supra, 42 N.J. at 162. But the Law Division judge made the same error, finding that "Bozarth's wife of five years was having repeated, clandestine, on duty sexual liaisons with one of Bozarth's immediate supervisors." There is simply no competent evidence in the record to support such a finding.

More significantly, there appears no factual support in the record for the Law Division's central finding, that Bozarth had already been punished for the July 30, 2010 incident when he was served with the preliminary notice of disciplinary action and immediate suspension notice on August 6, 2010, because he had already been "served with a letter of reprimand initialed by [the chief]" on July 30, 2010.

That letter of reprimand, which is included in the appendix, was not included in the record before the hearing officer, and no witness testified that Bozarth was ever issued a reprimand. The corporal who recommended that Bozarth be reprimanded, and whose name is on the reprimand supposedly issued to Bozarth, testified he forwarded the report up the chain to the lieutenant for approval and did nothing further. Critically, Bozarth himself claims he was never served with the reprimand and only became aware of it when it was produced as part of his personnel file in the course of his de novo appeal to the Law Division.

Although the reprimand bears the initials and badge number of the chief of police in the lower left corner, the spaces provided for the signature of the issuer and the date of issue are both blank. Comparing the letter of reprimand to three other commendations issued to Bozarth on the same form in the appendix, only one is initialed by the chief, but all three commendations bear the signature as well as the name of the issuer and the date of issue. Only the reprimand is not complete.

It is, of course, reasonable to surmise from the incomplete form of reprimand, the testimony of the corporal who supposedly issued it on July 30, 2010 and the representation by Bozarth that he never received it, that the corporal's recommendation for a reprimand was overruled in favor of the charges that were served on Bozarth on August 6, 2010. We cannot conclude that was the case on this record, however. We simply find that there is not adequate evidence in the record to support the Law Division's finding that the corporal issued Bozarth a letter of reprimand initialed by the chief of police on July 30, 2010. See Phillips,supra, 117 N.J. at 579.

We acknowledge that the parties stipulated to the introduction of the letter of reprimand, which was apparently not discovered to be in Bozarth's personnel file until the Law Division action, and that counsel for each side made representations as to how it may have gotten there. But statements by counsel are not evidence. Either party was free to seek to supplement the record in the Law Division once Bozarth raised the specter of double punishment. Neither did so.

As the Supreme Court has noted, "[t]he record that was established is one with which [the plaintiff] and reviewing courts must work." Ruroede, supra, 214 N.J. at 360. The Law Division was not free to fill in the gaps. Because there is insufficient evidence in the record to have allowed the Law Division to conclude that Bozarth was issued a letter of reprimand for his conduct on July 30, 2010, we find no support for the conclusion that the seventy-five-day suspension represented double punishment for the same offense.

Moreover, even were we to assume arguendo that Bozarth was issued a notice of reprimand for the same conduct for which the department sought his removal a week later, we would be hard pressed to conclude the reprimand precluded the subsequent charges under such circumstances - even leaving aside the thorny question of whether an oral or written reprimand can properly be considered minor discipline in a non-civil service jurisdiction.

It is, of course, axiomatic that Bozarth should not be punished twice for the same offense. See Twp. of Moorestown v. Armstrong, 89 N.J. Super. 560, 567 (App. Div. 1965), certif. denied, 47 N.J. 80 (1966). But the point in the public employment context is generally made with regards to progressive discipline, i.e., the appropriateness of using past instances of misconduct, including those for which minor discipline had already been imposed, to prove habitual misconduct. See W. N.Y. v. Bock, 38 N.J. 500, 522-23 (1962).

Here, the department was not trying to prove habitual misconduct, but rather incompetency. It acted quickly to address what all admit was a very serious error in judgment on Bozarth's part, which could have resulted in grave harm to a fellow officer and a stabbing victim. The hearing officer did not agree with the chief's assessment that a sanction short of removal, such as a suspension, would not make Bozarth a competent officer, see Klusaritz v. Cape May Cnty., 387 N.J. Super. 305, 317 (App. Div. 2006), certif. denied, 191 N.J. 318 (2007), and instead sent him for counseling. The hearing officer did, however, recognize the seriousness of Bozarth's admitted lapse of judgment and imposed the lengthy suspension subsequently adopted by the Borough.

Under these circumstances, we cannot find that a written reprimand, even were one actually issued to Bozarth, precluded the department from seeking Bozarth's removal or the hearing officer from imposing a seventy-five-day suspension. To make such a finding, we would have to conclude that the written reprimand issued in the hours after the event fully resolved the incident, as in the civil service cases on which the Law Division relied. In the case most fully explaining the rationale the Law Division applied (which we do not cite in light of the prohibition against the citation of unpublished opinions, Rule 1:36-3), the administrative law judge declared it improper for the school district to "resurrect [a] stale charge" for the purpose of imposing a greater penalty eighteen months after the incident had been "fully resolved" by a written warning.3

This was no stale charge. The record demonstrates that Bozarth was counselled within hours of the event and was advised by his immediate supervisors that they would be recommending discipline in the form of a written reprimand. Within a week, Bozarth was immediately suspended. He was at the same time advised that the department was seeking his removal for a series of incidents over a period of several months, culminating in the events of July 30, 2010, that demonstrated to them he could not competently perform the public safety functions of a police officer. Bozarth could have been under no illusion that the written reprimand finally resolved the matter. If he believed that, he should have raised it to the hearing officer. That he claims not to have done so because he was not aware of the reprimand, reveals the fatal weakness in the entire argument.

As the Law Division expressed no reservation regarding the seventy-five-day suspension other than it being barred by the prohibition against double punishment, which we have rejected, and because the penalty is notarbitrary, capricious or unreasonable and is supported by substantial credible evidence in the record as a whole, cf. Henry, supra, 81 N.J. at 580, we order it reinstated. We accordingly reverse the Law Division's order of April 22, 2013 vacating the suspension. Because the penalty is to be reinstated, Bozarth is not entitled to fees and accumulated leave pursuant to N.J.S.A. 40A:14-155. Accordingly, we reverse the orders of the Law Division of July 1 and 2, 2015 ordering the restoration of accumulated leave and counsel fees.

Bozarth's argument on his cross-appeal that he was entitled to notice and a hearing before issuance of a written reprimand is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). N.J.S.A. 40A:14-147 plainly does not include written reprimands among the sanctions for which notice and a hearing is required.

Affirmed in part, reversed in part, and remanded for dispositional orders consistent with this opinion. We do not retain jurisdiction.

1 The Borough states in its brief on appeal that the Borough's promotions policy provides that one quarter of a point is deducted for minor infractions, including written reprimands. By its terms, a written reprimand remains in an officer's file for only one year, in the absence of other infractions, after which it is removed and no longer of any effect.

2 The record reflects that a great deal of the delay here was attributable to Bozarth's desire to obtain his own psychological evaluation and that expert's unavailability to testify at a subsequently scheduled hearing.

3 The parties have not brought to our attention any published authority addressing a factual scenario similar to the one before the court. We thus do not fault the trial judge for considering the unpublished civil service cases the parties drew to his attention. Citation of such cases, however, is governed by Rule 1:36-3.