IN THE MATTER OF GEORGE MOORE, POLICE DEPARTMENT, CITY OF JERSEY CITY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5224-03T55224-03T5

IN THE MATTER OF GEORGE MOORE,

POLICE DEPARTMENT, CITY OF

JERSEY CITY.

______________________________________________________

 

Submitted December 6, 2005 - Decided January 26, 2006

Before Judges Hoens and R. B. Coleman.

On appeal from a Final Administrative Decision of the Merit System Board, DOP Docket No. 2003-1117.

Fusco & Macaluso, attorneys for appellant George Moore (Ciro A. Spina, III, on the brief).

Peter C. Harvey, Attorney General, attorney for respondent Merit System Board (Pamela N. Ullman, Deputy Attorney General, on the brief).

City of Jersey City Law Department, attorneys for respondent City of Jersey City (Anthony DeSalvo, Assistant Corporation Counsel, on the brief).

PER CURIAM

Appellant, George Moore, a detective in the police department of Jersey City, appeals from the final determination by the Merit System Board, which accepted and adopted the findings of fact, conclusions of law and recommendation of penalty (thirty-day suspension) set forth in the initial decision of the Administrative Law Judge (ALJ). Based upon credibility assessments, the ALJ concluded that Moore was insubordinate in his dealings with his superiors and that his conduct was unbecoming an officer. We affirm.

Appellant is a twenty-four year veteran of the Jersey City police force, assigned to the juvenile bureau. He had been disciplined previously in 2000, when he was found guilty of insubordination and forfeited fourteen compensatory or vacation days.

In 2002, appellant was involved in the creation of a computer data base. The Commander of the Bureau, Lieutenant Michael Whalen, asked appellant's superior, Lieutenant Joseph Connors (a Sergeant at that time), why appellant was creating such. On or about June 4, 2002, Connors asked appellant to submit a detailed report with regard to the creation of the computer data base. Connors instructed appellant to address the following questions: (1) who gave authorization to set up the data base; (2) what was involved in setting up the data base; and (3) the reasons for his circumventing the chain of command. A short while later, appellant presented to Connors a two-sentence report regarding the data base. The report stated:

Everyone in this office was aware that I was working on a data base for this office, since the end of 2001 for a new file system. The present staff was also aware, meaning Lt. Whalen, Sgt. Coyle & Sgt. Connors.

Connors instructed appellant to submit a more detailed report. Appellant responded "you want another report from me, put it in writing." Connors replied, "I do not have to put it in writing. I am a direct supervisor and giving you a direct order to leave a report." Appellant stated, "this is f---ing bull----" and exited Connors' office.

At about the same time, police personnel visiting from Clifton were given a tour of the office. All of the personnel in the office except appellant stood and shook hands with the visitors. Appellant ignored them as they stood by his desk. Connors then ordered appellant to come to his office. He told appellant that he should treat others, including visitors, with respect. Appellant replied that greeting people was not part of his job duties. Connors again told appellant the initial report on the data base was unacceptable and that appellant needed to prepare another report. Appellant reiterated, "this is f---ing bull----. I'm going to the union," and then he "stormed out" of the office.

Subsequently, a union representative called and Connors explained the situation from his perspective. Afterwards, appellant returned to Connors' office with a tape recorder, which he pushed into Connors' face. The recorder hit Connors' chin and lips. While pressing forward with the tape recorder, appellant demanded of Connors, "Would you repeat those questions for me, please." Connors told him to take the recorder out of his face. Later that day, appellant submitted a second report regarding the computer data base.

The following day, appellant had a discussion with Sergeant Joseph Coyle, another officer in the Bureau, about the events of the prior day. Appellant stated that he had a problem with Connors and that it would "end today." Coyle described appellant's statements as being done "in a threatening manner in a . . . loud, boisterous voice."

On or about July 16, 2002, appellant was served with Preliminary Notices of Disciplinary Action, containing twelve charges, with specifications of alleged misconduct. On or about August 12, 2002, a departmental hearing was held before three hearing officers. As a result of the hearing, a Final Notice of Disciplinary Action was issued on September 10, 2002, sustaining six counts of insubordination for which appellant was suspended for thirty days. Appellant promptly appealed the suspension, which had been upheld by the ALJ to whom the contested matter was referred.

The ALJ was "persuaded that respondent [the Police Bureau] met its burden of proof regarding all charges, except those pertinent to the visit in question by [police] personnel and establishment of a data base." Further, the ALJ concluded the thirty-day suspension was reasonable since appellant had been previously disciplined for insubordination.

Succinctly, the ALJ found that Connors gave appellant an order to prepare a report and that appellant's failure to comply with Connors' directives constituted insubordination. The ALJ also determined that appellant's use of profanity in his responses in both of his meetings with Connors constituted conduct unbecoming. The ALJ reasoned that:

such conduct can arguably undermine the authority of a superior officer, especially in light of the fact that appellant's responses could have been overheard by other officers . . . .

The ALJ also found that appellant's responses to Connors' directive that he behave respectfully toward visitors was conduct unbecoming, even if appellant's refusal to greet the visitors was not insubordination. Lastly, the ALJ held that - regardless of any department policy regarding usage of tape recorders - appellant's actions regarding the tape recorder "clearly constituted insubordination and conduct unbecoming."

The ALJ's decision included credibility assessments of the witnesses. The ALJ found Lieutenant Connors and Sergeant Coyle very credible and commented that there was "no apparent reason in the record why they would lie regarding the incidents in question." The Merit System Board accepted and adopted the findings of fact and conclusions of law contained in the ALJ's initial decision and affirmed the suspension of appellant by the appointing authority.

Our review of an administrative agency's final action is governed by "the substantial evidence rule." Hammond v. Monmouth County Sheriff's Department, 317 N.J. Super. 199, 203 (App. Div. 1999). "Accordingly, if 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) (citing Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 588 (1988)); Goodman v. London Metals Exch., Inc., 86 N.J. 19, 28-29 (1981). "[A]n appellate court 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." Taylor, supra, 158 N.J. at 657 (quoting Henry v. Rahway State Prison, 81 N.J. 571, 581 (1980)) (alterations in original). If a finding is made that the decision of the agency is arbitrary, capricious and unreasonable, "then, and only then, [the appellate court] should appraise the record as if it were deciding the matter at inception and make its own findings and conclusions." Taylor, supra, 158 N.J. at 657 (quoting State v. Johnson, 42 N.J. 146, 162 (1964)) (alterations in original).

We are satisfied, giving deference to the ALJ's assessment of the credibility of the witnesses, that the record amply supports the findings that appellant was insubordinate and that his responses to his supervisor's directives constituted conduct unbecoming, for which suspension was justified. We cannot and do not conclude on the record as a whole that the final action of the agency was arbitrary, capricious or unreasonable.

 
Affirmed.

The ALJ recognized that Memorandum No. 27-95, issued by the Department's Chief of Police on September 5, 1995, provided that effective immediately, all personnel were permitted, at their discretion and at their personal expense, to obtain and utilize a personal tape recorder of the size and type referenced as a micro cassette recorder to create decisive and unequivocal records of contacts between the police and the public. The memorandum added "This memorandum is not intended to encourage, authorize, provide advice concerning, or in any manner applying to tape recordings of co-workers or supervisors."

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A-5224-03T5

January 26, 2006