IN THE MATTER OF KENNETH RANKIN

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5566-04T5
 
5566-04T5
 

IN THE MATTER OF KENNETH RANKIN,

CITY OF NEWARK.

__________________________________

 

Argued March 12, 2007 - Decided April 23, 2007

Before Judges Lintner, Seltzer and King.

On appeal from a Final Administrative Action of the Merit System Board, DOP No. 2005-1722.

Steven F. Olivo argued the cause for appellant/cross-respondent, City of Newark (JoAnne Y. Watson, Corporation Counsel, attorney; Lori A. Brown, Assistant Corporation Counsel, on the brief).

Bette R. Grayson argued the cause for respondent/cross-appellant, Kenneth Rankin (Grayson and Associates, attorneys; Ms. Grayson, on the brief).

Stuart Rabner, Attorney General, attorney for respondent, Merit System Board (Todd A. Wigder, Deputy Attorney General, on the brief).

PER CURIAM

In this appeal, the City of Newark (Newark) challenges a decision of the Merit System Board (the Board) dismissing the charges Newark brought against Newark Police Officer Kenneth Rankin and reversing Rankin's removal from the Newark Police Department contingent upon him passing a psychological fitness-for-duty evaluation. Rankin cross-appeals from the Board's determination that he was on a medical leave of absence between April 23, 2001, and September 20, 2002, and thus, not entitled to back pay. We affirm.

On May 2, 2001, Rankin was served with an Amended Preliminary Notice of Disciplinary Action and charged with a violation of N.J.A.C. 4A:2-2.3(a)3, "Inability to perform duties." Specifically, Newark asserted that on October 16, 2000, Rankin "booked off duty" for stress and underwent a psychological evaluation at the Institute for Forensic Psychology with Dr. Amie Wolfe, who decided that Rankin was unfit for duty and recommended six months of psychiatric treatment. Newark sought Rankin's removal from employment effective April 23, 2001. Pursuant to Rankin's request, a hearing was held on July 2, 2001. On July 3, 2001, Rankin was served with a Final Notice of Disciplinary Action sustaining the charges and terminating his position with the Newark Police Department.

Rankin appealed to the Board, which transferred the matter to the Office of Administrative Law (OAL) for a hearing as a contested case. A de novo hearing was conducted on January 29 and 30, February 3, 4, 6, and 10, and May 14, 2004. On May 14, prior to the closing of the hearing, Newark attempted to introduce evidence that Rankin was arrested on September 3, 2003, in Bergen County. Rankin had been charged with receiving stolen property, N.J.S.A. 2C:20-7; forgery, N.J.S.A. 2C:21-1a(2); obtaining CDS by fraud, N.J.S.A. 2C:35-13; and conspiracy to obtain CDS by fraud, N.J.S.A. 2C:5-2. He was placed in a Pre-Trial Intervention (PTI) program for twelve months, commencing April 29, 2004, for conspiracy to obtain CDS by fraud. The Administrative Law Judge (ALJ) refused to admit this evidence at the hearing.

The case record was closed on May 17, 2004. On July 12, 2004, the ALJ concluded that Newark had not sufficiently supported its charges against Rankin, however, she imposed a six-month suspension from the termination date, subject to Rankin successfully completing a fitness-for-duty examination.

On appeal to the Board, the Board conducted a de novo review of the record and, on September 23, 2004, accepted and adopted the ALJ's findings and recommendation to dismiss the charges and reverse the removal contingent upon Rankin passing a psychological fitness-for-duty examination. However, the Board did not accept the ALJ's recommendation to impose a six-month suspension. Instead, it determined that a disciplinary suspension should not have been imposed because the charges were not sufficiently supported. The Board concluded that "since [Rankin] had been determined to be unfit for duty at the time of his removal, if [he] is ultimately reinstated, then the period of time from April 23, 2001 until September 20, 2002, the date [it was] determined that [Rankin] was fit for duty, shall be recorded as a medical leave of absence." The Board required Rankin to undergo a psychological examination by a psychiatrist or psychologist agreed upon by the parties. The Board further ordered that, should Rankin be reinstated, he would then be entitled to mitigated back pay, benefits, and seniority. However, because Rankin's arrest occurred on September 3, 2003, and he had entered PTI on April 29, 2004, the Board determined that he could have been indefinitely suspended without pay as of September 3, 2003. When the parties could not agree on who should conduct the evaluation, the Board intervened and ordered that Dr. Robert Kanen perform the evaluation.

On May 13, 2005, Dr. Kanen recommended that Rankin be returned to the full duties of a police officer. On June 24, 2005, Newark filed its Notice of Appeal, following which Rankin filed his cross-appeal. Newark thereafter sought a stay from the Board, which was rejected. On October 11, 2005, Rankin filed an Order to Show Cause in the Law Division, seeking enforcement of the Board's order for reinstatement, back pay, counsel fees and costs. On November 11, 2005, a Law Division judge enforced the Board's order for back pay, legal fees and costs, and ordered Rankin reinstated. However, the judge also noted that that "such order of reinstatement shall not [a]ffect any subsequent disciplinary action taken by the City of Newark."

Because Newark challenges only the ALJ's refusal to hear evidence concerning Rankin's Bergen County arrest, we need not repeat in detail all the evidence presented to the ALJ. However, to place the matter in context, we provide the following summary of the evidence bearing upon the decision to reinstate Rankin. Rankin's father was a former Deputy Chief of Police and did not get along with the new Police Director. After Rankin's father retired, the Police Director sought revenge against Rankin's father by harassing Rankin. The harassment and disparate treatment took the form of changing Rankin's shift without the required notice, assigning Rankin unsafe patrol vehicles that were not properly maintained, allowing write-ups based upon unsupported claims, disregarding Rankin's seniority, and refusing Rankin's request for time off to take his daughter for treatment at Children's Specialized Hospital.

On May 16, 2000, Rankin was charged with insubordination for refusing to do a night report, despite the fact that he had a broken hand and received no training in the preparation of such reports. A trial board hearing was held and Rankin was suspended for ten days. The evidence established that the suspension was ordered by the Director because of his dislike for Rankin's father, rather than the purported independent decision of the three-member trial board. On October 16, 2000, the last day of his suspension, Rankin booked off due to stress.

On November 14, 2000, Rankin underwent a psychological evaluation by Dr. Wolfe at the Institute for Forensic Psychology. She found that Rankin was not suffering from serious psychopathology and was not considered to be disabled based upon his psychological problems. She did find, however, that he was not fit for duty because he had fear about being a police officer and some difficulties with following authority. Wolfe recommended that Rankin complete therapy for a period of six months.

Rankin denied telling Wolfe that he had a fear of being a police officer, rather, he had a fear of his supervisors. He sought treatment from Richard Pound, a family therapist, and Dr. Richard Brewster, a psychologist with whom he met for six sessions between February 15, 2001, and March 29, 2001. On February 20, Rankin was issued a notice of termination, putting him on a sixty-day medical leave. On May 2, 2001, Rankin was served with an Amended Preliminary Notice of Disciplinary Action, charging him with "Inability to perform duties," N.J.A.C. 4A:2-2.3(a)3. Following a Board hearing, a Final Notice of Disciplinary Action was issued on July 3, 2001, sustaining the charges and terminating Rankin from his position with the Newark Police Department, effective April 23, 2001.

In his September 20, 2002, report, Brewster concluded that Rankin did not have a problem with authority figures, and stated that with the counseling he gave Rankin in 2001, Rankin would have been able to return to work. According to Brewster, he did not believe Rankin was a threat to himself or others, he did not possess any psychopathic symptoms, and would not have problems with either being supervised or supervising others. Brewster concluded that Rankin "appear[ed] capable of successfully reassuming the responsibilities, pressures, and tasks of a police officer."

On May 1, 2003, Rankin met with Dr. Michael Laikin for a psychiatric evaluation. Laikin's practice is responsible for evaluating Newark City personnel, including police and firefighters. Laikin relied on Wolfe's report as a reference for his discussion with Rankin, despite the fact that it was no longer considered valid because it was more than eighteen months old. Laikin reported that a psychiatric diagnosis was unnecessary and, had Rankin successfully completed therapy, he would have recommended reinstatement. Since Rankin had stopped attending counseling sessions with Brewster after he was terminated, Laikin concluded that Rankin's past life and stress were a concern for being able to fulfill police job responsibilities. After his termination, Rankin obtained a security position with New East Hospitality in East Orange. On May 13, 2005, Rankin underwent his psychological evaluation with Dr. Robert Kanen. He returned to work on March 6, 2006.

On May 14, 2004, the last day of the hearing which included testimony from Rankin and summations of counsel, Newark sought to introduce evidence of Rankin's 2003 Bergen County arrest. Denying the proffer, the ALJ stated:

[P]rior to going on the record this morning there was a discussion between Counsel and then another discussion in Chamber[s] regarding additional information on [Rankin] in this case and the discussion was around an occurrence that happened after the date of the time period-time frame of the discussions in this matter and the testimony in this matter.

I have listened to both Assistant Corporation Counsel and to the Counsel for [Rankin] and made a decision after review of several cases and also consultation with several other colleagues on this matter that, at this time, I feel that I'm not going to accept additional information.

The information was going to be used to deal with [the] issue of credibility, however, it would be extremely difficult for me to be able to test the issue of credibility, not knowing what the case is all about and understanding that the case has not come to trial or a hearing.

And what I'm talking about, a case, a trial or a hearing, I'm talking about the case regarding another incident that may involve [Rankin] in this matter that occurred after the date in question on this matter.

In deciding to affirm Rankin's reinstatement, the Board agreed with the ALJ's decision not to consider Rankin's 2003 arrest.

On appeal, Newark asserts that the Board's decision was arbitrary, capricious, and contrary to law because it did not consider Rankin's Bergen County arrest in assessing whether he was fit for duty. Essentially, Newark challenges the ALJ's decision denying the introduction of Rankin's arrest, claiming that it was relevant evidence.

N.J.A.C. 1:1-15.1 governs the evidentiary decisions of administrative agencies. It states, in pertinent part:

(a) Only evidence which is admitted by the judge and included in the record shall be considered.

(b) Evidence rulings shall be made to promote fundamental principles of fairness and justice and to aid in the ascertainment of truth.

(c) Parties in contested cases shall not be bound by statutory or common law rules of evidence or any formally adopted in the New Jersey Rules of Evidence except as specifically provided in these rules. All relevant evidence is admissible except as otherwise provided herein. A judge may, in his or her discretion, exclude any evidence if its probative value is substantially outweighed by the risk that its admission will either:

1. Necessitate undue consumption of time; or

2. Create substantial danger of undue prejudice or confusion.

The scope of judicial review of administrative agencies is a limited one. Karins v. City of Atl. City, 152 N.J. 532, 540 (1998). This court should not disturb a Merit System Board's decision unless that decision was "arbitrary, capricious or unreasonable." Ibid. Under that standard, the court is limited to four inquiries:

"(1) whether the agency's decision offends the State or Federal Constitution; (2) whether the agency's action violates express or implied legislative policies; (3) whether the record contains substantial evidence to support the findings on which the agency based its action; and (4) whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors."

[Ibid. (quoting George Harms Constr. Co. v. N.J. Tpk. Auth., 137 N.J. 8, 27 (1994)).]

Upon reviewing the decision of an administrative agency, the Appellate Division must give "'due regard to the opportunity of the one who heard the witnesses to judge of their credibility . . . and . . . with due regard also to the agency's expertise where such expertise is a pertinent factor.'" Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85, 93 (1973) (quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)) (alteration in original). Nevertheless, the appellate panel is "in no way bound by the agency's interpretation of a statute or its determination of a strictly legal issue." Ibid.

The Board correctly pointed out that Rankin's 2003 arrest was "unrelated" to the administrative charges brought by the city. Those charges alleged that Rankin's stress-related illness rendered him psychologically unfit for duty as a police officer. Rankin was terminated as a police officer for an alleged violation of N.J.A.C. 4A:2-2.3(a)3, "Inability to perform duties." The trial board relied solely on Rankin's stress-related illness in deciding that he was unfit for duty, not his subsequent arrest. Indeed, Deputy Chief Taylor testified that the psychological report was the "supporting document on which the investigator relied to find unfitness."

"An employee must be served with a Preliminary Notice of Disciplinary Action setting forth the charges and statement of facts supporting the charges (specifications)." N.J.A.C. 4A:2-2.5(a). N.J.A.C. 4A:2-2.5(b) provides that "[w]here suspension is immediate . . . and is without pay, the employee must first be apprised either orally or in writing, of why an immediate suspension is sought, the charges and general evidence in support of the charges and provided with sufficient opportunity to review the charges and the evidence in order to respond to the charges before a representative of the appointing authority." N.J.A.C. 4A:2-2.7(a) requires the appointing authority to serve a Preliminary Notice of Disciplinary Action when it suspends an employee based upon a pending criminal matter.

Newark did not serve Rankin with a Preliminary Notice of Disciplinary Action based upon his arrest until July 29, 2005. Obviously, the charges under consideration did not encompass an arrest that occurred two years and four months after the Amended Preliminary Notice of Disciplinary Action was filed. On the very last day of the proceeding, Newark attempted to use the arrest as evidence of unfitness without filing a Preliminary Notice of Disciplinary Action.

Generally, in disciplinary matters, "[t]he review is restricted to the formal charges initially preferred against the police officer. There is no authority for amending the charges at the trial de novo so as to include new charges." Borough of Ho-Ho-Kus v. Menduno, 91 N.J. Super. 482, 487-88 (App. Div. 1966); see also Hammond v. Monmouth County Sheriff's Dep't, 317 N.J. Super. 199, 206 (App. Div. 1999) ("To hold that the appointing authority, on appeal, is entitled to broaden the charges as determined on the local level, would be to surcharge the right to appeal with a cost which violates any decent sense of due process or fair play."); In re Hotel & Rest. Employees & Bartenders Int'l Union Local 54, 203 N.J. Super. 297, 343 (App. Div.) (holding that evidence relating to events which occurred after the date of a Casino Control Commission hearing was not relevant on appeal of the original disqualification decision), certif. denied, 102 N.J. 352 (1985), cert. denied sub nom., Gerace v. N.J. Casino Control Comm'n, 475 U.S. 1085, 106 S. Ct. 1467, 89 L. Ed. 2d 723 (1986).

Under these circumstances, the ALJ properly refused to admit, and the Board declined to consider, evidence of Rankin's subsequent arrest on issues concerning the validity of his termination. The arrest was not relevant to the charges under consideration. Moreover, even if the arrest could be considered to have some relevancy, it was nevertheless excludable because its probative value was substantially outweighed by the risk that its admission necessitated an undue consumption of time. See N.J.A.C. 1:1-15.1(c)1. We are satisfied that both the ALJ and the Board properly refused to consider Rankin's 2003 arrest in determining that he should be reinstated as fit for duty.

We next address Rankin's cross-appeal contention that he is entitled to back pay for the period of April 23, 2001, (his effective removal date), until September 20, 2003, (the date Dr. Brewster issued his report stating that Rankin was fit for duty). Rankin argues that since Dr. Wolfe suggested six months of treatment, which Newark did not provide before terminating him, he was never truly found unfit for duty and is therefore entitled to the back pay.

The Board first noted that Rankin was initially determined to be unfit for duty by Dr. Wolfe and was still unfit at the time of his removal, effective April 23, 2001. Dr. Brewster's report that Rankin was, in fact, fit for duty was rendered on September 20, 2002. The Board, therefore, concluded that the period between April 23, 2001, and September 20, 2002, "shall be recorded as a medical leave of absence."

"Unless otherwise ordered, an award of back pay, benefits and seniority shall be calculated from the effective date of the appointing authority's improper action to the date of the employee's actual reinstatement to the payroll." N.J.A.C. 4A:2-2.10(e). Additionally,

[t]he governing body of any municipality, by ordinance, may provide for granting leaves of absence with pay not exceeding one year, to members and officers of its police department and force who shall be injured, ill or disabled from any cause, provided that the examining physician appointed by said governing body, shall certify to such injury, illness or disability.

[N.J.S.A. 40A:14-137 (emphasis added).]

Newark's improper action took place on July 3, 2001, when it issued a Final Notice of Disciplinary Action dismissing Rankin effective April 23, 2001. Nonetheless, back pay would not have been justified from July 3, 2001, until September 20, 2002, because Rankin would have remained on medical leave until he was considered medically fit for duty regardless of Newark's improper termination. Rankin was not necessarily entitled to a paid medical leave of absence because N.J.S.A. 40A:14-137 leaves it up to the governing body to decide whether to provide a leave of absence with pay. Rankin asserts no authority in support of his contention that he was entitled to back pay during the period he would have been on medical leave. The Board's decision was not arbitrary, capricious, or unreasonable and is affirmed in all respects.

Affirmed.

 

On April 5, 2005, Rankin completed his PTI and the Honorable Lois Lipton, P.J.S.C., dismissed the conspiracy charge against him.

On July 29, 2005, Newark issued a Preliminary Notice of Disciplinary Action suspending Rankin without pay effective September 3, 2005, based upon the Bergen County arrest. According to counsel at oral argument on appeal, the matter is presently pending in the OAL.

The record remained open after completion of testimony on May 14, 2004, for the purpose of locating, identifying, and testing the police hearing tapes, which had been played in court near the commencement of the hearing.

(continued)

(continued)

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A-5566-04T5
 

April 23, 2007