IN THE MATTER OF THE DISCIPLINARY ACTION OF POLICE OFFICER THOMAS WHITE

This case can also be found at 199 N.J. 131, 970 A.2d 1048.
(NOTE: The status of this decision is published.)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0028-07T30028-07T3

IN THE MATTER OF THE DISCIPLINARY ACTION OF POLICE OFFICER THOMAS WHITE

_____________________________

 

Argued: August 20, 2008 - Decided:

Before Judges A.A. Rodr guez and C.L. Miniman.

On appeal from the Superior Court of New Jersey, Law Division, Civil Part, Essex County, Docket No. L-3177-05.

Jonathan L. Goldstein argued the cause for appellant (Hellring Lindeman Goldstein & Siegal, LLP, attorneys; Jonathan L. Goldstein, of counsel; Mr. Goldstein and Christy L. Saalfeld, on the brief).

Joseph C. Angelo argued the cause for respondent (Township of Montclair Law Department, attorneys; Mr. Angelo, on the brief).

PER CURIAM

Appellant Thomas White (White) seeks our review of a judgment uphold ing an administrative dismissal from his position as a police officer with respondent Township of Montclair (Montclair). We affirm.

I.

White, who resides in Montclair, had been an officer with the Montclair Police Department ("the Department" or "Montclair PD") for fifteen years before he was suspended without pay on April 14, 2004. At that time he was charged with ten violations of the Montclair Police Department's Rules and Regulations (Departmental Regulations). When the matter was decided by the Township Manager, acting as the Hearing Officer, on April 6, 2005, all ten charges were sustained and White's employment was terminated. On de novo review by the Law Division of the record before the Hearing Officer, the judge on March 2, 2007, found only one of the ten charges sustainable, but also concluded that termination of employment was appropriate and entered the judgment under review on July 20, 2007. Accordingly, our review of the facts is limited to the one sustained charge, which was a "[w]illful violation of agency rules or regulations or other statutes relative to the employment of public employees."

In January 2004, Montclair PD Police Chief David Harmon received information that White was engaged in activities suggesting that he was employed by the G-Spot Lounge (the Lounge), on Bloomfield Avenue, Montclair, and he communicated that information to the Department's Office of Professional Standards. That office began an internal investigation on January 13, 2004. The Department's Vice Control Unit, the State Department of Law and Public Safety, the Passaic County Prosecutor's Office, and the Division of Alcoholic Beverage Control (ABC) all participated in the investigation. One of the officers in the Vice Control Unit who was responsible for ABC enforcement, Officer Wilhelm Young, had seen a flyer for the Lounge that bore the names Jeff and Thomas and two telephone numbers, one of which belonged to White. As a result, the Vice Control Unit decided to conduct surveillance of the bar. The surveillance took place on six occasions over a three-month period January 24, February 28, March 6, March 11, March 18, and April 6, 2004.

On January 24, Young did not observe White at the Lounge, but he did see him leave the building at 300 Bloomfield Avenue on February 28. On March 11, Lieutenant Butler asked Young to participate in the investigation of the Lounge. As a result, Young went to the Lounge to see if he could have a conversation with White and Jeff Beckett. Beckett was behind the bar and Young conversed with him about booking a party. Beckett told Young that whenever he was ready he could speak with him or with Thomas. Beckett did not see White at the Lounge that day nor did he see him there on March 18 or April 6.

Young testified that the Lounge, which was located on the second floor of 300 Bloomfield Avenue above the first-floor bar, which was called the DLV Lounge (the DLV), was not operating "under the ABC guidelines" and that the owner of the DLV, George Maribel, was eventually cited for a liquor license violation in connection with permitting the operation of the Lounge.

Lieutenant Daniel Butler from the Prosecutor's Office assigned Detective Marilyn Vega to the investigation of White. Vega from the Prosecutor's Office participated in the undercover investigation. Vega, accompanied by Butler, first went to the Lounge on March 11. Vega and Butler remained there for a couple of hours, but Vega did not speak with White, although Beckett pointed him out. Butler saw White tape a poster to the wall of the Lounge. White was seated alone with his back against a wall observing the establishment for the entire time Vega and Butler were there. At one point, a confrontation occurred at the bar between and a male patron and a female patron and White spoke with them and had one of them leave the establishment.

Vega returned to the Lounge on March 18 and waited for Beckett to arrive and then White arrived at 9:00 p.m. and struck up a conversation with her. She spoke with White about booking a party and asked how much it would cost to have the Lounge closed for a private party. He advised her that there would be no charge if she could sell forty tickets at $20 apiece. White told her "I work here" and said that he was an officer with the Montclair PD.

Vega had another conversation with White, this one over the telephone, about booking the party. Shortly after that conversation, White advised Vega on March 31 that they had a bachelor party the Wednesday before, a lot of things were broken at the bar, and they could not have anymore dancers or strippers there. Later that day, Vega left White a message in regard to lowering the price of the tickets because they would not have any dancers. When White returned her call, he told her that "we'll do it at the $300 for the open bar and $10 . . . per person" and he would give her the tickets to sell. Vega told White that she wanted the party on April 21 and White told her that date was open.

On April 6, Vega went to the Lounge to pay for the cost of the open bar. This was the third and last time during the investigation that Vega went to the Lounge. White was not at the Lounge and she had to call him to come and meet her. When White arrived he handed her forty tickets, Vega gave him $300 for the open bar and he gave her a receipt. The $400 balance was due on the date of the party.

Sergeant Todd Comforti of the Montclair PD was assigned to work with ABC State Investigator Don Simonetti in an investigation of the DLV and the Lounge. Comforti and Lieutenant Carlucci inspected both establishments and, while they were there, Maribel came to the DLV and agreed to go to Montclair PD headquarters and give a statement about his and White's involvement with the Lounge. Maribel gave this statement on April 14. Charges were filed against Maribel, which were still pending at the time of the hearing on the charges against White. Maribel was charged with failing to show on his license application that "White, a person disqualified from having an interest in a liquor license, by reason of his employment as a police officer, had an interest directly or indirectly in the license applied for and the business to be conducted under sub-license in violation of N.J.S.A. 33[:1]-26."

Beckett testified on White's behalf, explaining that they had been friends for over twenty years. They were at the DLV one evening and Beckett spoke to Maribel about renting the second floor over the DLV. He first rented the second floor from Maribel in November 2003 to entertain people and opened the second week of December. The rent was $150 per week but over time increased to $600. Beckett borrowed $3000 from White on November 30, 2003, to fund the purchase of the liquor and supplies that would be needed. The principal of the note was to be repaid at the rate of fifty percent of weekly profits until paid in full.

Beckett testified that he had no partners in the Lounge and White had no involvement with it. All White did was keep an eye on Beckett's employees when Beckett was not there because Beckett was concerned that his employees were stealing or giving away free drinks. He denied that White ever worked as a bouncer or bartender, nor did he take care of the employees or manage anything. When Beckett had to print tickets for a party, he would buy the paper and give it to White to print because he was better with a computer than Beckett. Beckett testified that White never received any money from him except in repayment of the $3000 loan.

Beckett admitted that he told Vega to return on another night and, if he was not there, she could speak with White about the party. He also claimed that he did not authorize White to quote a price to Vega and the price White quoted was too low to cover the liquor, but he honored it because White was his friend and had told him that he was trying to "hook up" with Vega. Beckett also claimed that he printed the flyer with White's name and phone number on it without consulting with White, who told Beckett that he would get White in trouble because he was "not supposed to be promoting any drug or alcohol establishments." Nonetheless, Beckett continued distributing the flyers until they were all gone but, when he printed more, he eliminated White's name and phone number.

Beckett admitted that he did not have his own liquor license and stated that the Lounge was open every day except when it was closed for parties. However, it only operated for four or five months before it was closed down. Beckett testified that the entire loan was repaid, roughly $1700 or $1800 from profits made at the Lounge and the balance from another business he owned. Beckett made all payments on the note in cash and he had no receipts for any of them. He also admitted that he paid all of his employees in cash but no longer had any records of those payments.

Beckett testified that, when White was at the Lounge, he would talk to people and have drinks. Beckett would buy most of White's drinks, but White would also pay for some. White did not help tend bar, but on one occasion he did ask some people to leave. Beckett might have sometimes introduced White to people as a police officer with the Montclair PD, but to Beckett's personal friends he would introduce White as "my . . . partner or my best friend." By partner, he meant "being around each other for a long time."

White also testified, corroborating much of the testimony given by Beckett. Additionally, he testified that he went to the Lounge about twice a week. On at least two occasions at two different bars he has asked people to leave the bar or settle down. If someone approached him about a party at the Lounge, he would get the information and give it to Beckett, but then testified that he only did this for his niece and Vega. White testified that he did not believe that loaning Beckett money was a violation of any Departmental Regulations, New Jersey statute, or ABC regulations, and that only working at an alcoholic establishment would be such a violation.

White testified that he did not get approval from Beckett for the price he gave Vega and that Beckett was angry about it. However, he was trying to help Vega out. White testified that he was interested in Vega. With respect to the promissory note, he knew his money was at risk because, if the bar did not make any profits, he would not get paid back.

The Hearing Officer observed that many of the facts were undisputed and that White's defense was "essentially a presentation of explanations and excuses for the behavior [and] the case largely turns on whether said explanations and excuses are sufficient to overcome the charges." He concluded that they were not for a number of reasons. First, although White testified that he was upset by the flyer, he did not notify the Montclair PD at the time and discuss his claimed innocence with his superiors, which he was duty-bound to do. Second, although White testified that he was trying to help Vega because he was interested in her, that damaging testimony only demonstrated White's "lack of regard for both his duty as a Police Officer, and buttresse[d] the 'preponderance of the evidence' case against him [because] he was aware he was engaged in improper conduct but did it anyway, regardless of the 'excuse.'" Finally, the Hearing Officer found that White's "own words and demeanor in testifying support[ed] a finding that he had [a] knowing, impermissible interest in the licensed business." For example, White used the word "we" in discussing arrangements between Vega and the Lounge and even did so when he was testifying. The Hearing Officer concluded that White's connection to the business was highly self-incriminating, upheld the charges, and concluded that termination was an appropriate penalty.

II.

The Law Division judge correctly recognized that her review of the Hearing Officer's decision was de novo pursuant to N.J.S.A. 40A:14-150. The standard applicable to her de novo review of the proceedings before the Hearing Officer is well established:

Although a court conducting a de novo review must give due def erence to the conclusions drawn by the original tribunal regarding credibility, those initial find ings are not controlling. State v. Johnson, [] 42 N.J. [146,] 157 [(1964)]. On reviewing the record de novo, the court must only make reasonable conclusions based on a thorough review of the record. That process might include reject ing [or accepting] the findings of the original tribunal, which are necessarily based on an assessment of the demeanor and credibility of witnesses.

[In re Subryan, 187 N.J. 139, 145 (2006) (quoting In re Disciplinary Procedures of Phillips, 117 N.J. 567, 579-80 (1990)).]

In reviewing the record before the Hearing Office, the judge was required to determine whether the truth of the charges had been established by a preponderance of the evidence. Cf. Henry v. Rahway State Prison, 81 N.J. 571, 579 (1980) (rejecting an abuse-of-discretion scope of review by the Civil Service Commission respecting decisions of state or local appointing authorities in disciplinary proceedings against employees and concluding that de novo review was appropriate).

The judge found that White, in tape-recorded conversations with Vega, discussed with her how to go about making arrangements for a bachelorette party at the Lounge and in doing so used the term "we" in referring to what the Lounge could do and at what price, which he negotiated with Vega. She found that White met with Vega to accept the money for the party and concluded that his explanations for his motive in doing so were not credible.

Based on White's testimony respecting the flyers circulated by the owner of the Lounge, the judge found that White knew how serious it would be to be perceived as being employed by the Lounge and knew that it could threaten his career and livelihood. Yet, nonetheless, he engaged in the tape-recorded conversations with Vega and accepted money on behalf of the Lounge for the bachelorette party. The judge found that "the evidence can only lead to the conclusion that [White] was employed by or associated with the bar in an employment[-]like capacity."

The judge noted that the fact that White was not paid did not change her conclusions because N.J.S.A. 33:1-71 required "all officers shall use all due diligence to detect violations of this chapter and shall apprehend the offenders and make a proper complaint before a magistrate" and N.J.S.A. 33:1-26.1 prohibited full-time police officers from being employed by a business licensed to sell alcoholic beverages in the municipality in which they were employed as a police officer. Also, the judge found N.J.A.C. 13:2-23.31(b) provided that "[n]o licensee shall employ or have connected with him in any business capacity whatsoever any [regular police] officer" absent written approval by the Director of the ABC, but only with respect to officers employed in municipalities other than the ones in which the licensee was located. The judge concluded that the "willful violation of agency rules or regulations or statutes relative to the employment of public employees . . . was clearly established upon . . . de novo review of the record [and] that [White] was associated with the bar."

The judge then addressed the discipline to be imposed and concluded that termination was appropriate. She reviewed White's prior disciplinary record, including a thirty-day suspension in February 2004 for refusing to stand his post and "disciplinary action for having left a high school with an underage girl and engaging in sexual activity with her" in June 1993. As to the latter charge, the judge commented that "it astounded me [that it] did not result in the termination of his employment earlier." She also noted that lesser disciplines had been imposed on other occasions. The judge stated that suspensions greater than six months cause great disruption in police departments and thus concluded that termination was the appropriate discipline, whether her review of the discipline was for an abuse of discretion or de novo.

III.

White contends on appeal that the evidence in the record was insufficient to support a finding of a willful violation Departmental Regulations or the applicable statute, N.J.S.A. 33:1-26.1. He also asserts that excessive delays in the proceedings require dismissal of all charges and his reinstatement. Finally, he asserts that the judge's decision was tainted by her incorrect perception of his disciplinary record and the discipline was too harsh.

Our review of the judgment before us is limited. "Findings by the trial judge are considered binding on appeal when supported by adequate, substantial and credible evidence." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974) (citations omitted). "[T]he findings on which [the judgment] is based should not be disturbed unless 'they are so wholly insupportable as to result in a denial of justice.'" Id. at 483-84 (citation omitted); see also Sager v. O.A. Peterson Const. Co., 182 N.J. 156, 163-64 (2004); Pasquince v. Brighton Arms Apartments, 378 N.J. Super. 588, 593 (App. Div. 2005). It is the de novo court's findings that are entitled to review under the substantial-evidence rule. See State v. Oliveri, 336 N.J. Super. 244, 252 (App. Div. 2001) (on de novo review, "[w]e do not re-weigh the evidence, but rather, determine whether the findings made could reasonably have been reached on sufficient credible evidence present in the record").

However, "[w]hile we will defer to the trial court's factual findings so long as they are supported by sufficient, credible evidence in the record, our review of the trial court's legal conclusions is de novo." 30 River Court E. Urban Renewal Co. v. Capograsso, 383 N.J. Super. 470, 476 (App. Div. 2006) (citing Rova Farms, supra, 65 N.J. at 483-84; Manalapan Realty L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).

IV.

In urging that the evidence is insufficient to support the judge's conclusion that White violated regulatory and statutory prohibitions, he makes three main arguments: (1) Departmental Regulations did not apply to his conduct because he was not employed by and did he work at the Lounge nor was any such violation willful; (2) he did not willfully violate N.J.S.A. 33:1-26.1; and (3) N.J.A.C. 13:2-23.31(b) does not apply to him because it regulates only the conduct of holders of liquor licenses.

The specific Departmental Regulations found to have been violated apply to secondary employment and are located in Article XIX, "Personnel Regulations," which provide:

1. Secondary Employment. Employees may only engage in secondary employment with the written approval of the Chief of Police. Application to the Chief must include the name of the prospective employer, company name, location, nature of business, tele phone number, work schedule and number of hours to be worked weekly.

2. No sworn member of the department shall be permitted to work in any estab lishment that possesses a plenary/retail consumption license.

White argues that the term "employment" is not defined in the Departmental Regulations and, thus, it must be given its "ordinary and well-understood meaning." Serv. Armament Co. v. Hyland, 70 N.J. 550, 556 (1976). He contends that such meaning requires payment for services rendered and that there was no proof of such. We need not delve into the ordinary and well understood meaning of "employment" because that term is not used in 2 above. There, the verb "work" means, among other things, "to use or manage . . .[;] to bring about . . . by work or effort; effect, accomplish, cause, or do . . .[;] to expend work on . . .[;] to put into effective operation . . .[;] to carry on operations . . .[;] [and] to achieve or win by work or effort . . . ." Webster's Encyclopedic Unabridged Dictionary of the English Language 1644 (new rev. ed. 1996). So defined, White was clearly working at the Lounge.

White's name and telephone number appeared on a flyer for the Lounge as a contact person. Although he claims to have chastised Beckett in connection with the flyer, Beckett continued to distribute copies of it and White never informed his superiors of what occurred. Beckett referred Vega to White to discuss the arrangements for the party. White acted on behalf of the Lounge in making arrangements with Vega for a party and Beckett did not repudiate the price White negotiated. White was recorded using the pronoun "we" repeatedly when he referred to the Lounge. White accepted money from Vega on behalf of the bar. White printed the tickets for parties on his own computer. White kept an eye on Beckett's employees when he was not there in order to make sure that they were not stealing or giving away liquor. Beckett supplied White with most of the alcohol he drank and White would sit in the Lounge with his back to the wall to keep his eye on events in the Lounge. This evidence is more than sufficient to support a conclusion that White worked at the Lounge, whether he received any compensation beyond free alcohol or not. In any case, such compensation would be almost impossible to prove in a business where everyone is paid cash, even White, in repayment of the alleged loan.

Additionally, the evidence is sufficient to support a conclusion that White willfully violated the Departmental Regulations. White admitted that he knew at all times that he was not permitted to work for the Lounge because he protested Beckett's use of his name and telephone number on the flyer that was distributed. Nevertheless, he continued to act on behalf of the Lounge and to serve as the contact person advertised in the flyer. As a result, we are satisfied that there was sufficient evidence in the record to support the judge's conclusion that the charge of willfully violating Departmental Regulations had been sustained.

V.

White next contends that the discipline of termination must be reversed because the judge's decision was tainted by her "own moral judgment" about prior discipline imposed in 1993. White supports his claim of taint with the judge's "candid astonishment" that he was not terminated in connection with the 1993 incident, which, he asserts, was further inflamed by a letter memorandum from Montclair's counsel in which she stated, "It is only due to a miracle that White was not arrested and convicted for the 1993 offense." In fact, White points out that the judge characterized this 1993 charge as White "having left a high school with an underage girl and engaging in sexual activity with her." He also finds further support for his claim of taint in a question from the judge to Montclair's counsel in which the judge asked, "How do you lose eight vacation days for having a sexual relationship with a 16 year old, but you get fired for having an interest in a bar?" White contends that having a sexual relationship with a sixteen-year-old girl was not a crime in 1993, citing N.J.S.A. 2C:14-2. He argues that the discipline imposed in 1993 demonstrates that the offense was not serious and urges that the judge's personal feelings improperly influenced her decision to impose the discipline of termination. White also argues that the judge misapplied the law because she imposed a more severe discipline than the Hearing Officer, who based termination on his finding that all six charges in the first count had been proven by a preponderance of the evidence.

Montclair acknowledges that the judge's "comments may appear unorthodox," but urges there is no evidence to confirm that she "allowed personal beliefs to influence her decision." We are not persuaded that there is no such evidence. Her comments about the nature of the 1993 offense were made in her discussion of the discipline to be imposed and in doing so erroneously characterized the teenager as "underage," reflecting Montclair's counsel's suggestion that the offense was a crime. No more is needed to compel a conclusion that the judge's morally negative evaluations of White's 1993 behavior impermissibly tainted her de novo imposition of discipline based on the charge sustained and the disciplinary record.

Having reached this conclusion, we have two choices we may exercise our original jurisdiction or we may remand to the Law Division. Karins v. Atl. City, 152 N.J. 532, 540-41 (1998). Because a remand will necessarily require assignment to another judge, R. 1:12-1, we will exercise our original jurisdiction to determine the discipline to be imposed in order to achieve a "complete determination of [the] matter on review." R. 2:10-5. "In the exercise of our original jurisdiction on the penalty issue our power as a court is no less than the broad discretionary power [of the trial court]." Feldman v. Town of Irvington Fire Dept., 162 N.J. Super. 177, 185 (App. Div. 1978).

N.J.S.A. 40A:14-150, which governs the judge's de novo review of the discipline imposed, provides in relevant part that, "[i]f the applicant shall have been removed from his office, employment[,] or position[,] the court may direct that he be restored to such office, employment[,] or position and to all his rights pertaining thereto, and may make such other order or judgment as said court shall deem proper." We have recognized that "[t]he N.J.S.A. 40A:14-150 trial court's power to modify the sanction has consistently been regarded as self-evident, with only one limitation thus far declared: that the penalty imposed on the municipal level may not be increased or enhanced on judicial review." Cosme v. Borough of E. Newark Twp. Comm., 304 N.J. Super. 191, 201 (App. Div. 1997) (citations omitted) (footnote omitted), certif. denied, 156 N.J. 381 (1998). The exercise of that power is committed to the sound discretion of the court, which "must be exercised in conformity with applicable rules of law grounded either on clear statutory declarations or upon the types of policy considerations that inform case law standards which are not based on explicit statutory criteria." Id. at 202-03.

In considering the discipline to be imposed in a position not covered by the Civil Service Act, N.J.S.A. 11A:1-1 to 12-8, we have been mindful of the Supreme Court's concern about long periods of suspension:

[I]f an employee's offense, coupled with his admissible past record, is serious enough to dictate a suspension from duty for more than 6 months, it merits dismissal instead. Long periods of suspension require other regular or temporary employees to perform the duties of the suspended man while his position must be kept open for his return. Such a situation is obviously not in the public interest.

[Cosme, supra, 304 N.J. Super. at 205 (quoting Town of W. New York v. Bock, 38 N.J. 500, 526 (1962)).]

Our Supreme Court has recently considered the discipline of police officers and reviewed the development of the law governing same. See generally In re Carter, 191 N.J. 474 (2007). The Court observed that it "ha[s] not regarded the theory of progressive discipline as a fixed and immutable rule to be followed without question." Id. at 484. Rather, it "recognized that some disciplinary infractions are so serious that removal is appropriate notwithstanding a largely unblemished prior record." Ibid.

The Court cited a number of our decisions sustaining removal because the infractions were serious or involved public safety concerns. Id. at 485. Those decisions included Klusaritz v. Cape May County, 387 N.J. Super. 305, 317 (App. Div. 2006) (affirming dismissal of incompetent CPA despite no disciplinary record), certif. denied, 191 N.J. 318 (2007); In re Hall, 335 N.J. Super. 45, 51 (App. Div. 2000) (sustaining dismissal for attempted theft), certif. denied, 167 N.J. 629 (2001); Cosme, supra, 304 N.J. Super. at 205-06 (affirming dismissal of police officer who took unauthorized paid vacation); Bowden v. Bayside State Prison, 268 N.J. Super. 301, 305-06 (App. Div. 1993) (sustaining removal of prison guard who gambled with inmates for cigarettes), certif. denied, 135 N.J. 469 (1994); and City of Newark v. Massey, 93 N.J. Super. 317, 322-25 (App. Div. 1967) (affirming dismissal of police officer based on his multiple instances of insubordination and careless handling of weapon). These decisions grow out of our recognition that "a police officer is a special kind of public employee. His primary duty is to enforce and uphold the law . . . . He represents law and order to the citizenry and must present an image of personal integrity and dependability in order to have the respect of the public." In re Carter, supra, 191 N.J. at 486 (quoting Twp. of Moorestown v. Armstrong, 89 N.J. Super. 560, 566 (App. Div. 1965), certif. denied, 47 N.J. 80 (1966)).

Thus, the "question for the court is whether such punishment is so disproportionate to the offense, in light of all the circumstances, as to be shocking to one's sense of fairness." In re Carter, supra, 191 N.J. at 484 (internal quotations omitted).

In deciding the question before us and in exercising our original jurisdiction, we are governed by the standard that is applicable to civil-service employees and must decide whether the offense and the past record is serious enough to require a suspension in excess of six months, in which case termination of employment is required. Cosme, supra, 304 N.J. Super. at 205-06 (observing that "disrespect for superiors, disregard of established performance standards, and perverse use of regular procedures subverts the good order and discipline that is essential to a properly run police department. Such acts constitute conduct so unbecoming a police officer as to warrant dismissal").

Here, White worked for the Lounge, an unlicensed liquor establishment the existence of which by all rights he should have reported to his superiors, for at least four months from December 2003 through March 2004. He did so knowingly, as his objection to the initial flyer demonstrates, and thus his conduct thereafter was clearly willful and in utter disregard of known restrictions on his activities. This is serious conduct unbecoming of a police officer. Additionally, White's disciplinary record was as follows:

June 1993 - An internal affairs investigation found that Officer White had engaged in a consensual sexual relationship with a 16-year-old female. Penalty: Loss of 8 vacation days and 5 days pay.

June 1995 - A civilian complaint was filed relating to [White's] demeanor with a citizen. The complaint was sustained and Officer White was counseled.

September 1995 - Officer White failed to appear for scheduled agency training. Penalty: Loss of 8 hours time owed.

December 2000 - Officer White's immediate supervisor noticed an apparent pattern in his use of sick time - counseled.

January 2001 - Officer White was observed by supervisors to have spent an inordinate amount of time on South Park Street in or around a business, which he owned, and operated - counseled.

June 2002 - Internal affairs investigation found Officer White failed to perform a complete investigation of an auto accident occurring in October 2000. The officer was reprimanded for his failure to document pertinent information.

February 2004 - Officer White entered into an agreement with the Township of Montclair to accept a 30-day suspension for violation of the following rules and regulations: 2:1.3(11) Conduct Unbecoming an Employee in the Public Service, 2:1.3(1) Neglect of Duty and 2:1.3(4) Insubordination. The charges stem from an incident that occurred in November 2003 in which the officer refused to stand his post as ordered. The suspension period was served from March 1 through and including March 30, 2004.

The facts that the last discipline was under investigation between November 2003 and February 2004 and that White agreed to a suspension in February 2004 are of great significance because they occurred contemporaneously with the conduct giving rise to these charges. Surely, a suspension of less than six months would not be adequate in light of the seriousness of the current charges and his extensive prior, and indeed overlapping, disciplinary record. Even progressive discipline would require more than a six-month suspension. As a consequence, we conclude that termination of White's employment by Montclair is an appropriate level of discipline in this case. In doing so, we also conclude that termination based on one of the charges does not constitute an increase in punishment simply because the Hearing Officer imposed termination on multiple charges. The issue is whether a suspension of less than six months is appropriate, Cosme, supra, 304 N.J. Super. at 205, and we conclude that it is not.

VI.

Last, White asserts that there were excessive delays in the prosecution of the disciplinary proceedings before the Hearing Officer, contrary to the requirements of N.J.S.A. 40A:14-149 and Departmental Regulations. The record before us establishes that a significant portion of the delay was attributable to White himself. We are satisfied that this issue does not require discussion in a written opinion, R. 2:11-3(e)(1)(E), and decline to dismiss the charges on this ground. However, White complains that the delay caused him to be on suspension without pay for nearly twelve months. In this respect, we have held:

[S]uspensions without pay [pursuant to N.J.S.A. 40A:14-149.1] are precluded for officers charged solely with violations of departmental rules or regulations, except where conduct equivalent to the most serious of crimes involving moral turpitude or dis honesty is supportably alleged. [Otherwise, an officer is] entitled to be paid during his suspension . . . .

[Herzog v. Twp. of Fairfield, 349 N.J. Super. 602, 608 (App. Div. 2002).]

This holding was violated in this case as White's conduct was not "equivalent to the most serious crimes involving moral turpitude or dishonesty." Ibid. As a consequence, we remand the matter to the Law Division, for assignment to another judge pursuant to Rule 1:12-1, so that it may determine whether this issue was raised below and, if so, for entry of a judgment for back pay from the date of suspension to the date of the Hearing Officer's determination, April 6, 2005.

Affirmed in part and remanded in part. We do not retain jurisdiction.

The contents of that statement, although they were read into the record, were inadmissible hearsay and are not included in this opinion.

Two rent receipts for $600 for the weeks of January 25, 2004, and February 15, 2004, were marked into evidence, both of which indicated that the rent had been "RECEIVED OF from Jeff B."

That statute provides in pertinent part:

Any member or officer of a police department or force in a municipality wherein Title 11 (Civil Service) of the Revised Statutes is not in operation, who has been tried and convicted upon any charge or charges, may obtain a review thereof by the Superior Court. . . . The court shall hear the cause de novo on the record below and may either affirm, reverse or modify such conviction.

We are not persuaded that N.J.S.A. 33:1-26.1 was violated because no employment relationship, as that term is commonly understood, was established. We do not find case law construing a liquor licensee's duty to control the conduct of persons "employed" on their premises applicable here as those cases have all concerned the conduct of licensees, which is highly regulated. See Kravis v. Hock, 137 N.J.L. 252, 255 (Sup. Ct. 1948); In re G. & J.K. Enter., Inc. v. Div. of Alcoholic Beverage Control, 205 N.J. Super. 77, 86 (App. Div. 1985), certif. denied, 102 N.J. 397 (1986); Freud v. Davis, 64 N.J. Super. 242, 248-49 (App. Div. 1960). We decline to adopt the broad definition of "employment" utilized in those cases in construing N.J.S.A. 33:1-26.1. Thus, we conclude that no statutory violation by White was sustained.

White also notes that he was made to wait over two years for the judge to decide his appeal, "despite numerous requests for a determination, and even though no further testimony was heard and no further evidence was considered." We find no excusable basis for these delays in the record and they are extraordinary. However, N.J.S.A. 40A:14-149.1 does not apply to the courts.

(continued)

(continued)

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A-0028-07T3

November 3, 2008