DIVISION OF STATE POLICE - v. IN THE MATTER OF DETECTIVE SERGEANT FIRST CLASS DANIEL FLAHERTY #4051

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0257-07T20257-07T2

DIVISION OF STATE POLICE,

Petitioner-Respondent,

v.

IN THE MATTER OF DETECTIVE

SERGEANT FIRST CLASS

DANIEL FLAHERTY #4051,

Respondent-Appellant.

 
 

Submitted November 18, 2008 - Decided

Before Judges Winkelstein, Gilroy and Chambers.

On appeal from a final decision of the Department of Law and Public Safety, Division of State Police, 2005-0450.

Michael J. Reimer, attorney for appellant.

Anne Milgram, Attorney General, attorney for respondent (Victor DiFrancesco, Jr., Deputy Attorney General, on the brief).

PER CURIAM

This appeal arises out of disciplinary action filed by the New Jersey Division of State Police (the Division) against appellant, Detective Sergeant First Class (DSFC) Daniel Flaherty, charging him with disseminating Division documents without proper authorization (charge one), behaving in an official capacity to the personal discredit of a member of the State Police or to the Division (charge two), and willfully disobeying a lawful verbal or written order (charge three). By summary decision, an Administrative Law Judge (ALJ) found Flaherty guilty of the first and third charges and recommended a five-day suspension; the Superintendent of the Division of State Police (the Superintendent) agreed with the guilty findings but imposed a ten-day suspension for Flaherty's actions.

On appeal, appellant asserts that (1) genuine issues of material fact precluded summary decision; (2) the ALJ failed to consider relevant evidence; (3) the ALJ applied the incorrect burden of proof; (4) the Superintendent erred by adopting the Department of Personnel's (DOP) finding that his discrimination claims were "unsubstantiated"; (5) the Superintendent erred in asserting that he has "absolute discretion" to promulgate rules and regulations; (6) he was unfairly charged with two violations based on the same facts; and (7) the ten-day suspension is disproportionately harsh. We reject appellant's arguments and affirm.

The underlying facts are not substantially in dispute. In 2001, Flaherty filed an age discrimination complaint with the New Jersey State Police Equal Employment Opportunity/Affirmative Action (EEO/AA) Intake Unit. He alleged that since 1995, the State Police had denied him numerous specialist positions because of his age. The EEO/AA assigned Lieutenant Patrick Reilly to investigate his claims. Because almost two years later his allegations had still not been resolved, the EEO/AA replaced Reilly with DSFC Kevin Rowe.

On May 5, 2003, Flaherty filed a New Jersey State Police Reportable Incident Form alleging "culpable inefficiency" against Reilly. Pursuant to a Division policy regarding non-disclosure of confidential internal investigations, the Office of Professional Standards (OPS) denied his request to access the file regarding his complaint against Reilly.

The following month, the State Police administratively closed Flaherty's complaint file against Reilly and transferred the matter to the Attorney General's EEO/AA section. A September 24, 2003 letter from a Senior Deputy Attorney General informed Flaherty that his claim against Reilly could not be substantiated.

On May 31, 2003, the Division assigned Flaherty to the OPS, which was then called the State Police Internal Affairs Investigation Bureau. Pursuant to Division of Internal Affairs policies and procedures, "[t]he nature and source of internal allegations, the progress of internal affairs investigations, and the resulting materials are confidential information. The contents of the internal investigation case files shall be retained in the internal affairs unit and clearly marked as confidential." Internal investigation files can be released only:

In the event that administrative charges have been brought against an officer, and a hearing will be held, a copy of those internal investigation reports to be used as evidence in the administrative hearing shall be provided to the officer.

In the event that the subject officer, agency or governing jurisdiction has been named as a defendant in a lawsuit arising out of a specific incident covered by an internal investigation . . . .

Upon the request or at the direction of the county prosecutor or Attorney General.

Upon a court order.

On July 23, 2004, Flaherty executed a confidentiality agreement that provides:

By nature of your assignment to the Office of Professional Standards, you will be exposed to sensitive and confidential information. Informal sharing and official dissemination of such information is strictly regulated by the statutory requirements of your individual assignments, Division Rules and Regulations, Stand[ard] Operating Procedures, Operations Instructions, Operations Orders, as well as policies and procedures that may be specific to your bureau/unit.

All members assigned to this Section are mandated to comply with any and all applicable restrictions or conditions.

As a member of the Office of Professional Standards, you will be held to the highest standards and be expected to conduct yourself in an ethical and professional manner at all times. The unauthorized dissemination of confidential information or documents will not be tolerated and any violators will be subject to discipline.

By letter dated February 20, 2004, the Department of Law and Public Safety found that Flaherty's age discrimination claims could not be substantiated. In his appeal to the DOP, appellant questioned the manner in which the State Police and the Attorney General's office investigated his discrimination claims and his complaint against Reilly. He attached to his appeal several documents from OPS internal investigation files relating to Reilly and several documents from the internal investigation file regarding his culpable inefficiency claim against Reilly. He also claimed that two other State troopers had filed reportable incident forms against Reilly, specifically citing to one of the internal investigation files.

On February 8, 2005, the DOP acknowledged receipt of Flaherty's appeal. The DOP forwarded a copy of the appeal package to the Attorney General's office, where it was assigned to Deputy Attorney General Craig Sashihara. In preparing a response, Sashihara requested Rowe's assistance. Rowe raised concerns that Flaherty may have breached confidentiality by attaching Division documents from internal investigation files. Consequently, the Division initiated an internal affairs investigation into Flaherty's acquisition and dissemination of several of the documents attached to and referenced in his appeal package. The next month, in a tape recorded interview, when asked about the documents from Reilly's internal files, Flaherty replied that "[t]he documentation . . . would be considered . . . confidential file as basically all files within OPS."

On August 25, 2005, the Division filed the present disciplinary action against Flaherty and transferred the case to the Office of Administrative Law (OAL). The ALJ granted summary decision in favor of the State on charges one and three, dismissed charge two, and ordered Flaherty suspended from duty for five days without pay. After the State filed exceptions seeking to increase the penalty, and Flaherty challenged the grant of summary decision, as well as the penalty, the Superintendent issued a final decision on August 1, 2007, upholding the summary decision on charges one and three but increasing the suspension to ten days.

We first address appellant's contention that the ALJ erred by granting summary decision to the State regarding charges one and three.

Summary decision should be granted where

the pleadings, discovery materials and affidavits "show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to prevail as a matter of law." N.J.A.C. 1:1-12.5(b). Once the moving party presents sufficient evidence in support of the motion, the opposing party must proffer affidavits setting "forth specific facts showing that there is a genuine issue which can only be determined in an evidentiary proceeding." Ibid. This standard is substantially the same as that governing a motion under Rule 4:46-2 for summary judgment in civil litigation. Frank v. Ivy Club, 228 N.J. Super. 40, 62 (App. Div. 1988), rev'd on unrelated grounds, 120 N.J. 73 (1990), cert. denied, 498 U.S. 1073, 111 S. Ct. 799, 112 L. Ed. 2d 860 (1991).

[Contini v. Bd. of Educ., 286 N.J. Super. 106, 121-22 (App. Div. 1995), certif. denied, 145 N.J. 372 (1996).]

Motions for summary decision in agency actions must be analyzed "in accordance with the principles set forth by the Supreme Court in Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995)." Nat'l Transfer, Inc. v. N.J. Dep't of Envtl. Prot., 347 N.J. Super. 401, 408 (App. Div. 2002). In Brill, supra, the Court explained that

a determination whether there exists a "genuine issue" of material fact that precludes summary judgment requires the motion judge to consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party. . . . The import of our holding is that when the evidence is so one-sided that one party must prevail as a matter of law, the trial court should not hesitate to grant summary judgment.

[142 N.J. at 540 (internal quotation omitted).]

When reviewing a grant of summary decision, we use the same standards. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). Doing so, the record supports the ALJ's grant of summary decision on charges one and three, as adopted by the Superintendent in his final decision.

Charge one states that appellant violated Article XIII, Section 19.c of the Division's rules and regulations, which provides that "[a] member shall not disseminate, distribute or supply to any unauthorized member or any other person, an original, copy or abstract of any Division document, unless specifically authorized by competent Division authority." The ALJ found that appellant signed the confidentiality agreement prohibiting the unauthorized dissemination of OPS documents, that he acknowledged that OPS files were confidential, and that he nevertheless disseminated copies of OPS files to the DOP without authorization. The ALJ further stated that the regulations do not provide exceptions or exemptions "to allow an employee of the State Police to distribute documents without authorization even if those documents are necessary for an appeal or other claim of right."

Upon adopting these findings in his final decision, the Superintendent explained: "[Flaherty] was obliged by his position, by the Rules and Regulations, and by the Agreement he executed, to request and receive in advance, permission to divulge confidential documents. It is undisputed that he did not do so." Those findings are supported by the record.

Article XIII, Section 19.c of the Rules and Regulations prohibits the dissemination of Division documents to "any other person . . . unless specifically authorized." The DOP qualifies as "another person," and appellant had not been authorized to provide the OPS documents to the DOP. Thus, the motion record fully supports the finding that he did not have Division authorization to access and disseminate the documents from OPS files to the DOP. In fact, he essentially admitted that he was not authorized to access Reilly's internal investigation file.

Flaherty contends that he "did nothing more than follow the directions provided to him by the [DOP]." He asserts that the DOP sent "an official letter" requesting that he provide documents to support his appeal. This argument is without merit because the DOP sent the February 8, 2005 letter in acknowledgement of receipt of Flaherty's appeal after he had already submitted the challenged documents to the DOP. The DOP did not authorize or ask Flaherty to access internal investigation files and supply the DOP with confidential documents. Rather, the DOP simply acknowledged receipt of Flaherty's appeal package and stated that if it determined that an examination of the appointing authority's investigative materials was necessary, the DOP would "request that the appointing authority submit [those] materials."

Appellant asserts that he had a right to access OPS internal investigation files and disseminate the documents to the DOP without authorization because they are relevant to his underlying age discrimination complaint. As noted by the ALJ, however, "[n]o exceptions or exemptions are permitted to allow an employee of the State Police to distribute documents without authorization even if those documents are necessary for an appeal or other claim of right."

Next, appellant contends that the challenged documents "simply demonstrated" that his age discrimination claims have never been investigated, and are "not the sensitive information which the confidentiality regulations were intended to protect." We disagree. OPS files include internal investigations of alleged wrongdoing by members of the Division, and even potentially criminal or illegal acts. At the very least, the files involve investigations of alleged disciplinary infractions. As noted by the ALJ, "[n]o absolute unfettered right exists to personnel files of third parties."

Even if the challenged documents are relevant to Flaherty's age discrimination appeal, that does not excuse his disregard of Division regulations. Processes and procedures are in place that would provide him with an opportunity to obtain documents necessary to support his appeal while balancing the privacy rights of third parties and the Division's confidentiality concerns. For example, pursuant to the Division's internal affairs policy, internal investigation files may be released "upon request or at the direction of the . . . Attorney General" or upon court order. Additionally, the administrative code provides procedures for the procurement of documents. N.J.A.C. 1:1-1.1 (administrative procedure rules are applicable to cases before the OAL, agency head, or any other administrative agency); N.J.A.C. 1:1-11.1 (subpoena of witnesses and documents).

Appellant further asserts that he did not seek authorization because his efforts would have been futile where he raised concerns regarding members of the State Police and the Attorney General's office in his appeal. As previously noted, however, processes and procedures are in place, within the Division and in the Administrative Code, that would provide appellant with an opportunity to obtain documents necessary to support his appeal. N.J.A.C. 1:1-1.1; N.J.A.C. 1:1-11.1.

Thus, no genuine issues of material fact exist that would preclude summary decision as to charge one. Flaherty accessed confidential files and disseminated the documents without authorization in violation of Division regulations.

We turn next to the third charge, in which the Division alleges that appellant violated Article IV, Section 3.b of the Division regulations. That regulation provides that "[a] member shall not willfully disobey any lawful verbal or written order from any superior commissioned officer, superior non-commissioned officer or other member placed by competent authority in a position of supervision over such member." The Division asserted that Flaherty violated this provision by willfully disobeying the confidentiality agreement and internal affairs policies relating to confidential files and dissemination of Division documents. Finding that charge three had been sustained on the motion record, the ALJ stated that "[t]here is no dispute that respondent signed the agreement, and . . . disseminated confidential information" in violation of the regulation.

Appellant argues, however, that charge three cannot be sustained because his actions were not willful. He asserts that "having been told, in writing, by the [DOP] to provide relevant documents . . . it [cannot] be said, as a matter of law, that [Flaherty] 'wilfully' disobeyed any order." Yet, as we have previously noted, Flaherty did not receive the February 8, 2006, DOP letter acknowledging receipt of his appeal until after he accessed Reilly's internal investigation file and disseminated confidential documents from that file to the DOP. Thus, the record does not support his argument that the DOP directed him to provide confidential information or authorized him to access such information. He accessed files and voluntarily referenced and attached documents from them in and to his DOP appeal. His actions were willful.

Appellant's assertion that the record fails to support a violation under charge three because the challenged documents are not "confidential" is also without merit. He contends that because the documents were not marked "confidential" as required by the Division's internal affairs policy, they cannot be considered as such. The internal affairs policy, however, specifically states that the materials in OPS internal investigation files "are confidential information."

Pursuant to the confidentiality agreement that appellant signed, "[t]he unauthorized dissemination of confidential information or documents will not be tolerated and any violators will be subject to discipline." The record, including Flaherty's own statements, supports the conclusion that he violated the subject regulation when he knowingly breached the confidentiality agreement and internal affairs policies by disseminating documents from Reilly's confidential internal investigation files without authorization.

Appellant next asserts that the ALJ erred by failing to view the motion record in the light most favorable to him as the non-moving party. He contends that the ALJ failed to consider arguments and evidence that he had supplied in his second affidavit offered in opposition to the State's motion for summary decision. As support, appellant points to the appendix attached to the September 5, 2006 initial decision, which does not list his exhibits. We are not convinced by these arguments.

In denying Flaherty's motion for reconsideration, the ALJ asserted that he reviewed and considered all submissions in contemplation of the cross-motions. His consideration of these documents is evident upon reading his September 5, 2006 initial decision, in which he specifically addresses appellant's defenses. The ALJ also referenced several of the exhibits in that opinion. For example, he referenced Flaherty's Exhibit B, his initial complaints of age discrimination, in the statement of facts; and his Exhibit C, his complaint against Reilly, throughout the opinion. Exhibit C was also referenced in appellant's DOP appeal package, which was included in the State's exhibits. Indeed, several of the exhibits, including Exhibits D through J attached to appellant's second affidavit, are also listed as State exhibits.

During oral argument on the motion, the ALJ addressed appellant's Exhibit A, the DOP letter acknowledging receipt of the appeal. Also during oral argument, his counsel raised the defenses noted in his second affidavit. Thus, the ALJ considered and addressed appellant's arguments and submissions.

Next, appellant contends that the ALJ failed to apply the appropriate standard of review in consideration of the summary decision motions. He asserts that the ALJ confused the burden of proof applicable to a motion for summary decision with the burden for a claim of retaliation. Not so.

The September 5, 2006 initial decision, as well as the final decision, specifically reference the Brill standard. Noting that "there are no genuine issues of material fact," the ALJ concluded that the "matter is ripe for Summary Decision." After determining that summary decision was appropriate and that the motion record supported the violations of charges one and three, the ALJ addressed appellant's retaliation defense. In his discussion, citing to Jamison v. Rockaway Township Board of Education, 242 N.J. Super. 436, 445 (App. Div. 1990), the ALJ noted the correct burden of proof necessary to establish a claim of retaliation.

Appellant's next argument is that the agency erred by accepting the conclusions of the Department of Law and Public Safety and the DOP that his underlying claim of age discrimination could not be substantiated. That argument is without merit.

In his initial decision of September 5, 2006, the ALJ noted that "[o]n February 20, 2004, the Department of Law and Public Safety found no acts of discrimination were substantiated." He later stated that "[o]n October 25, 2005, the [DOP] found there to be no basis to find a violation of the New Jersey State Policy Prohibiting Discrimination, Harassment, or Hostile Environment in the Workplace." Contrary to appellant's argument, the ALJ did not adopt these findings, but simply made these statements during his recitation of the facts. Neither reference played any role in the ALJ's decision; nor did the Superintendent rely on these references in his final decision.

Appellant next contends that the ALJ and the Superintendent erred by stating that the Superintendent has "absolute discretion." Specifically, in the September 5, 2006 initial decision, the ALJ stated that "the Superintendent of the State Police has absolute discretion, subject only to the Governor's approval, to promulgate rules and regulations for the violation of which a member of the Division may suffer dismissal, suspension . . . or other unspecified disciplinary action." The Superintendent also referenced this authority in his final decision.

The ALJ and the Superintendent correctly state the Superintendent's statutory authority to make rules and regulations. Pursuant to N.J.S.A. 53:1-10, "[t]he superintendent shall, with the approval of the governor, make all rules and regulations for the discipline and control of the state police, and provide the necessary preliminary and subsequent instruction to the troopers in their duties as police officers." Flaherty does not explain how the reference to the statute in either decision was error. He simply asserts that the Division discriminated against him on the basis of his age, an issue that is not before this court in the present appeal.

Appellant further claims that charges one and three are duplicative because they are supported by the same factual scenario, and that they should therefore be viewed as a singular charge. We disagree. Although violations of these charges may arise out of the same incident, they do not constitute the same offense. Charge one relates to the unauthorized dissemination of Division documents; charge three relates to the willful disobedience of a written or verbal command or order.

In sum, the ALJ found that "[d]espite the intentions and reasons set forth by [Flaherty]," the undisputed factual record justified the disciplinary action taken against him. Appellant admitted that he was not authorized to access and disseminate Reilly's internal investigation file. He admitted that OPS files are confidential materials. He signed a confidentiality agreement, which specifically prohibited the dissemination of confidential documents. The documents from Reilly's internal investigation files were referenced in and attached to appellant's DOP appeal. This evidence, when viewed in a light most favorable to appellant, supports the grant of summary decision on charges one and three.

Next, we address appellant's suspension. He contends that the ten-day suspension is disproportionately harsh considering that he previously had a clean disciplinary record. He asserts that, if we find a violation of the rules, we must consider it to be a "technical violation," which does not warrant his suspension. The State, however, asserts that the ten day suspension was a fair and reasonable sanction based on the factual record presented. We agree with the State.

Judicial review of agency decisions is limited in scope. In re Herrmann, 192 N.J. 19, 27 (2007). "An administrative agency's final quasi-judicial decision will be sustained unless there is a clear showing that it is arbitrary, capricious, or unreasonable, or that it lacks fair support in the record." Id. at 27-28. This standard also applies to the appellate court's review of disciplinary sanctions. Id. at 28; see also Div. of Alcohol and Beverage Control v. Maynard's, Inc., 192 N.J. 158, 183-84 (2007) (appellate review of an agency's choice of sanction is limited and such decisions will be afforded substantial deference). "In light of the deference owed to such determinations, when reviewing administrative sanctions, 'the test . . . 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 Herrmann, supra, 192 N.J. at 28-29 (quoting In re Polk, 90 N.J. 550, 578 (1982)).

The Division is a unique government agency due to its "quasi-military orientation" and characteristics. State v. State Troopers Fraternal Assoc., 134 N.J. 393, 415 (1993). Pursuant to N.J.S.A. 53:1-10, the Superintendent has "absolute discretion" to regulate the discipline of troopers. In re Bernaducci, 85 N.J. Super. 152, 155 (App. Div. 1964), certif. denied, 44 N.J. 402 (1965); see also In re Carberry, 114 N.J. 574, 578 (1989) (stating that "the superintendent has the ultimate responsibility for maintaining discipline among state police officers" as a means of promoting the public interest and safety). "[T]he responsibility for determining whether a trooper has committed a violation of the Rules and Regulations, and the discipline to be imposed therefor, are plainly matters of inherent managerial prerogative to be discharged by the Superintendent and his designated staff." State Troopers Fraternal Assoc., supra, 134 N.J. at 416.

Here, the record does not show that the ten-day suspension is so disproportionate to the violation charged that it shocks one's sense of fairness. Pursuant to the confidentiality agreement, OPS members are "held to the highest standards and [are] expected to conduct [themselves] in an ethical and professional manner at all times." The Superintendent explained that "[Flaherty's] breach of the Confidentiality Agreement and use of these records for his own benefit was ill-conceived, inconsistent with the higher standards expected of Troopers, and given his position of responsibility at OPS, ethically at odds with the trust reposed in him." In light of these considerations, the sanction was not arbitrary or capricious but is supported by the record.

Affirmed.

On October 20, 2005, the Merit System Board denied Flaherty's age discrimination claim. He appealed to this court, but later voluntarily dismissed his appeal.

Then, on May 19, 2006, Flaherty filed a complaint in the Law Division, alleging violations of the United States Constitution, the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, and the Conscientious Employee Protection Act, N.J.S.A. 34:19-1 to -8; he also claimed ethical violations, retaliation and conspiracy against members of the New Jersey State Police and the Office of the Attorney General arising out of his 2001 complaint for age discrimination and his 2003 complaint against Reilly. The issues raised in that proceeding are not subject to this appeal.

(continued)

(continued)

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A-0257-07T2

 

December 22, 2008