IN THE MATTER OF TAMARA ELLIS, CITY OF NEWARK POLICE DEPARTMENT

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2657-05T52657-05T5

IN THE MATTER OF TAMARA

ELLIS, CITY OF NEWARK

POLICE DEPARTMENT.

 
_______________________________________

Submitted May 2, 2007 - Decided May 15, 2007

Before Judges C. S. Fisher and Yannotti.

On appeal from a Final Decision of the Merit System Board, DOP Docket No. 2003-1284.

Fusco & Macaluso, attorneys for appellant Tamara Ellis (Paulette L. Pitt, on the brief).

Aney K. Chandy, Corporation Counsel, attorney for respondent City of Newark (Steven F. Olivo, Assistant Corporation Counsel, on the brief).

Stuart Rabner, Attorney General, attorney for respondent Merit System Board (Pamela N. Ullman, Deputy Attorney General, on the statement in lieu of brief).

PER CURIAM

Appellant Tamara Ellis (Ellis) appeals from a final determination of the Merit System Board (Board) which upheld her removal from employment as a police officer for the City of Newark (City). We affirm.

The relevant facts are essentially undisputed. Ellis was hired by the Newark Police Department (NPD) as a police recruit on August 1, 2001, and she was initially assigned patrol in the City's West District. After two or three months, Ellis was transferred to the South District, where she grew up. On August 13, 2002, Ellis was working the midnight tour, which began at 9:00 p.m. on August 12, 2002, and ended the following morning at 7:30 a.m. On that tour of duty, Ellis was assigned to work with Officer Antoine Baskerville (Baskerville). At the roll call prior to the midnight tour, the officers were informed that gang members had targeted female police officers to be killed.

During her tour of duty, at about 10:00 p.m. on August 12, 2002, Ellis sought out an individual, who had been referred to as "John Smith" (Smith). Ellis had known Smith since 1985 or 1986. Smith verified that a female police officer in the West District had been targeted to be killed by a gang but Ellis and two other female officers had not been targeted. After receiving this information, Ellis continued on patrol with Baskerville.

On August 15, 2002, Baskerville was riding home with Officer Che Gary (Gary), who had been Baskerville's initial training officer. Baskerville told Gary about Ellis's encounter with Smith. Gary directed Baskerville to report the matter at once to their supervisor, Sergeant Tommaso Popolizio. Ellis did not report the information she had received from Smith until she was ordered by Captain John Scott-Bey to submit a report called an "Administrative Submission."

In that report, Ellis recounted her conversation with Smith and stated that she had written all of the information down, with the intention of submitting it the following day, but went to the dentist and did not get a chance to submit the report. Ellis also gave a video-taped statement on August 16, 2002, in which she stated that she believed Smith was a gang member and believed what Smith told her about the targeting of a female police officer. Ellis additionally stated that she thought Smith knew the name of the targeted officer. Members of the NPD located Smith, interviewed him, and arrested him on certain outstanding warrants.

The City issued a preliminary notice of disciplinary action dated August 26, 2002, in which it charged Ellis with failure to report a crime, neglect of duty, and a "deliberate withholding of cooperation which impairs the achievement of department objectives, or an evasion of responsibility, or a delay in taking necessary action." The City later issued a final notice of disciplinary action dated September 24, 2002, which found Ellis guilty of the charges and ordered her immediate removal from employment.

Ellis filed an appeal to the Board, which referred the matter to the Office of Administrative Law for a hearing. The administrative law judge (ALJ) conducted a hearing and issued an initial decision dated November 4, 2005, in which she found that the City had proven the charges by a preponderance of the evidence. The ALJ stated:

Simply put, [Ellis's] actions in this case fall woefully short of that which the public has the right to expect of a police officer. Plainly, [Ellis's] discussion with John Smith involved a serious matter of public safety. Unquestionably, [Ellis] should have immediately reported the information to the [NPD]. If [Ellis] was uncertain what to do with the information, she should have contacted a supervisor or the Department's Gang Enforcement/Intelligence Unit for guidance. Given the gravity of the subject matter discussed, it was not for [Ellis] to interpret whether or not she believed new information was disclosed which should be reported.

The ALJ further found that the penalty of removal was appropriate. The ALJ stated that, although Ellis had not been disciplined in the nine months she had been working as an officer of the NPD, the nature of the charges were a "critical consideration." The ALJ found that, in light of the totality of the circumstances, Ellis's removal from the City's police force was warranted.

Ellis filed exceptions to the ALJ's decision with the Board. The Board issued its final determination on December 13, 2005, accepting and adopting the ALJ's findings of fact and conclusions as stated in the ALJ's initial decision.

Ellis appeals and argues that the Board's decision is arbitrary, capricious and unreasonable. Ellis contends that the charges were not proven because she had not been properly trained as to what to do with the information that she received from Smith. Ellis asserts that the information she obtained from Smith was common knowledge and had been disclosed at roll call. She further maintains that no police officer was harmed as a result of her failure to report the information. Ellis also argues that the Board's decision to terminate her employment was inconsistent with her lack of a prior disciplinary record and the concept of progressive discipline.

The scope of our review of an appeal from a final decision of the Board is strictly limited. Public Serv. Elec. & Gas Co. v. N.J. Dept. of Envtl. Prot., 101 N.J. 95, 103 (1985) (citing Gloucester Cty. Welfare Bd. v. N.J. Civil Serv. Comm'n, 93 N.J. 384, 390 (1983)). We will not reverse a decision of the Board unless it is shown to be arbitrary, capricious or unreasonable, or lacks fair support in the evidence. Karins v. City of Atlantic City, 152 N.J. 532, 540 (1998). The scope of our review is limited to considering whether: 1) the agency's decision offends the State or Federal Constitution; 2) the agency's action violates express or implied legislative policies; 3) the record contains substantial evidence to support the findings on which the agency's action is based; and 4) the agency clearly erred in reaching a conclusion that could not reasonably have been reached on the relevant factors. Ibid. (citing George Harms Constr. Co. v. N.J. Tpk. Auth., 137 N.J. 8, 27 (1994)).

We have carefully considered the record in light of the arguments advanced on appeal by Ellis. We are satisfied that the record amply supports the findings of fact and the conclusions reached by the ALJ, which were adopted by the Board in its final decision. We are also convinced that, given the seriousness of the charges, the Board did not act arbitrarily, capriciously or unreasonably in upholding the City's decision to remove Ellis from the police force.

Affirmed.

 

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A-2657-05T5

May 15, 2007