DISCIPLINARY BOARD BOROUGH OF SEA BRIGHT POLICE DEPARTMENT v. OFFICER SCOTT KEENAN

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2904-04T12904-04T1

DISCIPLINARY BOARD OF THE

BOROUGH OF SEA BRIGHT POLICE

DEPARTMENT,

Plaintiff-Respondent,

v.

OFFICER SCOTT KEENAN,

Defendant-Appellant.

 

Submitted February 28, 2006 - Decided March 30, 2006

Before Judges Hoens and Seltzer.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-4210-03.

Anthony J. Pope, attorney for appellant (Annette Verdesco, on the brief).

Miller, Gaudio, Bowden & Arnette, attorneys for respondent (Scott C. Arnette, on the brief).

PER CURIAM

Appellant, Scott Keenan, a police officer with the Borough of Sea Bright, appeals from two orders of the Law Division. First, he challenges the October 8, 2004 order denying his application for a change of venue. Second, he appeals from the January 27, 2005 order, following a trial de novo, upholding certain disciplinary charges against him and affirming his dismissal from his position. We affirm.

At the time of the events that give rise to the appeal, Keenan was an eight-year veteran of the Sea Bright police department. In addition, he had three years of experience as a certified operator of the breathalyzer machine. On July 12, 2002, while he was on a routine patrol, Keenan stopped a vehicle operated by Alison Doyle for making an illegal u-turn. After he spoke with Doyle, Keenan asked her to perform field sobriety tests and concluded that she was intoxicated. Later that evening, he administered a breathalyzer test which twice resulted in a .15 reading. Doyle was charged with driving while intoxicated. N.J.S.A. 39:4-50. In accordance with department policy, Keenan prepared two reports, the Alcohol Influence Report and the Drinking Driving Report. The latter was saved in the police department's computer data base.

The charge against Doyle was scheduled to be tried in Sea Bright Municipal Court on September 30, 2002. In the middle of August, Doyle requested discovery. That request was processed by the police department clerk, Christie Roberts. In responding to that request, Roberts reviewed the file and found it to be complete. In particular, Roberts provided Doyle with a copy of the Alcohol Influence Report. On September 18, Doyle went to the police station. She gave Keenan a handwritten letter which, among other things, suggested that the two meet for coffee and she gave him her telephone number. Keenan showed the letter to the Chief of Police, but he also discussed the letter's invitation for coffee with another officer. In doing so, he suggested that he was considering meeting Doyle, but would wait until after the charge against her was resolved.

On September 30, 2002, Keenan took the Doyle file, and an unrelated file relating to a domestic violence incident, to Municipal Court. While there, he approached the municipal prosecutor and suggested that the charge against Doyle be downgraded to careless driving. He told the municipal prosecutor that Doyle's breathalyzer reading was only .08 and he showed him a report that included that result. Another officer who was nearby also saw the report with the .08 reading in the Doyle file.

The conversation between Keenan and the municipal prosecutor was overheard by Lt. Louis DiGirolamo, who was responsible for overseeing all of the paperwork relating to DWI offenses. He was puzzled because he could not recall any incident during the previous two years in which Keenan had arrested anyone with a .08 reading for DWI. DiGirolamo went back to the police station and, after reviewing the computer records, discovered that Doyle's readings were .15 rather than the .08 reading that Keenan had reported to the prosecutor.

DiGirolamo then returned to the Municipal Court and asked Keenan to give him the Doyle file. A struggle over the file ensued. Keenan left with it, refusing to give it to DiGirolamo and refusing to stop when asked to do so. Keenan later returned with the file and advised the municipal prosecutor that he had been mistaken about the reading and that Doyle actually had readings of .15 in place of the lower readings he had earlier showed him. When the prosecutor looked at the file, however, the Alcohol Influence Report, which had been in the file when Roberts had sent out the discovery and a version of which had been there earlier in the evening, was missing.

Based on these events, Keenan was charged with several disciplinary offenses, which we may summarize as refusal to obey an order and obstruction of the administration of the law. He was suspended without pay pending resolution of the charges. A disciplinary hearing was conducted over the course of two days and included testimony from numerous witnesses. During the hearing, Keenan also testified. Although he confirmed much of the testimony about the events, he denied that there had been a document in the Doyle file that included a .08 reading and he testified that he had been confused about the reading in her file. Following the hearing, the Administrative hearing officer issued an opinion finding that Keenan had committed each of the offenses, affirming his suspension and concluding that termination was warranted. On September 2, 2003, the governing body adopted a resolution accepting the hearing officer's findings and conclusions and terminating Keenan.

Following his termination, Keenan pursued his right to an appeal in the Law Division. Keenan first requested that the matter be reheard de novo, asserting that the cross-examination of the witnesses before the disciplinary hearing officer had been ineffective. When that motion was denied, Keenan moved for a change of venue. He argued that because the municipal prosecutor, who had been one of the witnesses, had been a law partner of the Assignment Judge for the vicinage fifteen years earlier, all of the other judges in the vicinage should be disqualified. That motion was also denied.

Thereafter, the matter proceeded as a trial de novo on the record created in the disciplinary proceeding. On January 10, 2005, Judge Robert Coogan delivered his findings of fact and conclusions of law in his oral opinion. For the reasons he expressed at length at that time, he reversed the hearing officer's conclusions on the charge relating to disobeying an order. He concluded, however, that Keenan had obstructed the administration of the law, in particular by creating the document representing that the breathalyzer result was .08 when the actual reading was much higher. Judge Coogan concluded that the charge which Keenan had committed was sufficiently egregious that termination was "the only" appropriate sanction.

On appeal, Keenan raises the following arguments for our consideration:

POINT I

THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN DENYING APPELLANT'S REQUEST FOR DE NOVO TRIAL, PURSUANT TO N.J.S.A. 40A:14-150.

POINT II

THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN DENYING APPELLANT'S APPLICATION FOR A CHANGE IN VENUE.

POINT III

THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN SUSTAINING THE TERMINATION OF APPELLANT'S EMPLOYMENT AS A POLICE OFFICER WITH RESPONDENT.

We have considered these arguments in light of the record and the applicable legal precedents and have concluded that they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(A) and (E). We therefore affirm for substantially the reasons expressed by Judge Coogan on the record on January 10, 2005. We add only the following brief observations.

Keenan's argument that he was entitled to a de novo proceeding in the nature of an entirely new trial is contrary to the plain wording of the governing statute. N.J.S.A. 40A:14-150 specifically directs that the "court shall hear the cause de novo on the record below." The Supreme Court has described the manner in which such a proceeding shall be conducted and has cautioned judges to make their own findings based on their de novo review of the record. In re Phillips, 117 N.J. 567, 578-79 (1990). Judge Coogan's careful performance of the function of sifting and weighing the evidence in that record is apparent from his opinion and, in particular, from his rejection of the findings of the hearing officer relating to the failure to obey charge. See King v. Ryan, 262 N.J. Super. 401, 411-12 (App. Div.), certif. denied, 134 N.J. 474 (1993).

The second argument on appeal, that the trial judge erred in denying the motion for a change of venue, is similarly without merit. The applicable rule requires the moving party to demonstrate that there is "a substantial doubt that a fair and impartial trial" can be had in the venue. R. 4:3-3(a)(2). We reject Keenan's argument that none of the judges in the vicinage could possibly have tried his matter fairly merely because one of the many witnesses who testified in the disciplinary hearing had, many years earlier, been a law partner of the Assignment Judge.

Finally, we reject the assertion on appeal that there was insufficient evidence to support Keenan's termination from his position as a police officer. To the extent that this argument is a challenge to the sufficiency of the evidence to support Judge Coogan's findings and conclusions, we note that our role on appeal is limited. We review whether the decision was based on substantial, credible evidence, considering the record as a whole. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980); Campbell v. Dept. of Civil Serv., 39 N.J. 556, 562 (1963). Our review of the record and of the findings and conclusions expressed by Judge Coogan compels us to conclude that there is no ground on which to interfere with his decision.

Moreover, to the extent that Keenan argues on appeal that termination was too harsh a punishment for this infraction, we disagree. As we have previously held, dismissal is an appropriate sanction for a police officer who engages in acts "unbecoming" that position. Cosme v. Borough of East Newark Twp. Committee, 304 N.J. Super. 191, 205-06 (App. Div. 1997), certif. denied, 156 N.J. 381 (1998); Township of Moorestown v. Armstrong, 89 N.J. Super. 560, 566-67 (App. Div. 1965), certif. denied, 47 N.J. 80 (1966). Termination is plainly warranted for a police officer who creates a false record. It is all the more appropriate here, where the officer did so in an effort to induce the municipal prosecutor to agree to a plea bargain to a reduced offense under the circumstances evident in this record.

 
Affirmed.

(continued)

(continued)

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A-2904-04T1

March 30, 2006