IN THE MATTER OF CHARLES KING

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4963-10T4

IN THE MATTER OF CHARLES KING.

_____________________________

November 1, 2013

Submitted April 9, 2013 Decided

Before Judges Ostrer and Mantineo.

On appeal from the Civil Service Commission, Docket No. 2009-3147.

Charles King, appellant pro se.

Apruzzese, McDermott, Mastro & Murphy, P.C., attorneys for respondent City of Long Branch (James L. Plosia, Jr., of counsel and on the brief).

Jeffrey S. Chiesa, Attorney General, attorney for respondent Civil Service Commission (Pamela N. Ullman, Deputy Attorney General, on the statement in lieu of brief).

The opinion of the court was delivered by

OSTRER, J.A.D.

Charles King appeals from the May 4, 2011, final administrative action of the Civil Service Commission (Commission) ordering King's removal from office as a police corporal in the Long Branch City Police Department (LBPD). The sanction followed the Commission's substantiation of various charges arising out of King's preparation of a false accident report that intentionally favored an acquaintance. Following our review of the arguments advanced on appeal, in light of the record and applicable law, we affirm.

I.

King appealed to the Commission from the decision of the City of Long Branch (City) terminating him from his position as a police officer. The Commission then referred the case to the Office of Administrative Law (OAL). An Administrative Law Judge (ALJ) conducted an eight-day hearing and rendered extensive findings of fact and conclusions of law. The ALJ found that the City had substantiated charges of conduct unbecoming a public employee, N.J.A.C. 4A:2-2.3(a)(6); and other sufficient cause, N.J.A.C. 4A:2-2.3(a)(11). The ALJ also found that King violated LBPD rules and regulations governing: duty and performance, section 3:1.34; leniency, section 3:1.62; and responsibility of police officers, section 3:1.84 (the Final Charges). The ALJ also dismissed as unsubstantiated various other charges against King (Dismissed Charges). The ALJ found that removal was warranted.

After King and the City filed exceptions and cross-exceptions, the Commission adopted the ALJ's findings of fact after a de novo review of the record. The Commission also imposed the sanction of removal from office.

The charges arose out of King's response and report of a motor vehicle accident that occurred around 9:00 a.m. on July 21, 2008, at the intersection of Marvin Drive and Cedar Avenue in the City. The collision involved two motorists, Robert Voorhees, twenty-nine years old, and Robert Yale, seventy-two years old. The accident was witnessed by another motorist, Barbara Stewart.

Marvin Drive is a north-south residential street that terminates at an upside-down "T" on the westbound side of Cedar Avenue, which is, in parts, a multi-lane east-west road. A stop sign controls entry of Marvin Drive traffic onto Cedar Avenue, which does not have a stop sign or traffic light at the Marvin Avenue corner. Pedestrian cross-walks traverse Cedar Avenue at the northeast and northwest corners with Marvin Drive.

Although westbound Cedar Avenue in the area generally consists of two marked lanes of traffic, the two lanes merge into one westbound lane seventeen feet wide, several houses before the Marvin Drive intersection. Cross-hatching and angled double-yellow lines channel the two lanes of traffic into the single lane. Thus, based on its apparent design, a Marvin Drive motorist seeking to turn left or east, would need pass in front of only one lane of westbound traffic. Likewise, a pedestrian seeking to cross Cedar Avenue would need to pass in front of only one lane of westbound traffic. However, motorists often ignore the channelization and form two westbound lanes. Immediately west of the Marvin Drive intersection, Cedar Avenue consists of two marked lanes of westbound traffic.

On the morning of July 21, 2008, Cedar Avenue traffic was congested and moving slowly both before and after Marvin Avenue. Yale approached the stop sign at Marvin and Cedar, seeking to turn left. The motorist to Yale's left, at the Cedar and Marvin corner, was stopped and, according to Yale, waved to him to proceed across Cedar Avenue's westbound lane. Barbara Stewart was in the second car from the intersection. Voorhees, travelling west on Cedar Avenue, passed to the left of Stewart and the other stopped cars, at a speed of between thirty and thirty-five m.p.h. According to King's report, the Cedar Avenue speed limit was thirty m.p.h. There was conflicting evidence whether Voorhees encroached at that point on the slanting double-yellow line. Voorhees intended to occupy the left of the two westbound lanes past Marvin Drive in order to make a left turn onto a side street.

As Yale's vehicle passed in front of the first stopped vehicle at the corner, Voorhees swerved to the left to avoid Yale, whose car struck Voorhees's vehicle on the passenger-side door. At that point, it was undisputed, Voorhees's car crossed the double-yellow line. Neither motorist sought medical attention at the scene (although Voorhees did go to the hospital later in the day). Both vehicles were operational. Voorhees's car showed a dent on the passenger door and Yale's car showed damage to the front bumper.

When King arrived, Yale's and Voorhees's vehicles had already been removed from the center of the intersection, but were available nearby for King's inspection. King recognized Yale, whom he had known for many years in the City. King visited Yale's poultry farm several times a year. Yale greeted King by his first name. King interviewed Yale and Stewart for about five minutes each, and spoke more briefly to Voorhees.

Yale testified that he told King that he ran into Voorhees, but that Voorhees had crossed the double-yellow line. Yale overheard King ask Voorhees for his credentials, and heard Voorhees complain of a headache, but overheard no other conversation between the two.

Stewart testified that she did not observe the driver in front of her indicate to Yale that it was safe to turn. She also did not believe Voorhees had crossed the double-yellow line as he passed, because there was sufficient room to her left. She saw Yale strike Voorhees's vehicle. She testified that she told King at the scene what she observed.

Voorhees testified that King asked him for his driving credentials, but he could not recall any other discussion of substance between the two of them. Voorhees asked King if he knew Yale. Voorhees did not recall giving King his telephone number, although it later appeared in the police report. King did not issue a summons to either driver.

After returning to the station, King prepared an accident report that erroneously reported the accident. The crash diagram portion depicted Voorhees's vehicle striking Yale's. It placed Stewart in the third car from the corner, instead of the second. In the descriptive portion of the report, King stated that Yale was motioned to enter the intersection by the first vehicle in line at the intersection; and that Voorhees passed several stopped vehicles in a single westbound lane.

In the "Apparent Contributing Circumstances" section of the form, King inserted the code for "None" for Yale, and the codes for "Driver Inattention" and "Failed to Obey Traffic Control Device" for Voorhees. In the "Traffic Controls" section, King inserted the code for "Lane Markings for Voorhees, and did not include the code for "Channelization Painted." For Yale, instead of the code for "Stop Sign," King inserted the code for "Lane Markings." According to the code inserted in the "Sequence of Events" section, both vehicles were "MV in Transport." According to the inserted codes, Yale's vehicle suffered initial impact and principal damage on the center, driver-side of the vehicle, and Voorhees made initial impact and principal damage on the front of his vehicle.

About a week after the accident, Voorhees obtained a copy of the accident report. Concerned that the report showed that his vehicle had struck Yale's vehicle, and also assigned all fault to him, Voorhees visited King at the police station and asked him to review photographs of the damage to his automobile, and to correct the report. King refused to view the photographs and refused to change the report. Voorhees then filed an internal affairs complaint against King on July 28, 2008. King was suspended without pay on January 8, 2009.

In the course of its internal investigation of King's performance, the LBPD obtained a report from Reginald Grant, an accident reconstruction agent from the Monmouth County Prosecutor's Office. Grant visited the scene of the accident during a weekday morning and observed two lanes of traffic at Cedar Avenue, approaching Marvin Drive. Grant opined that Yale should have received a summons for failure to yield. Even if Voorhees had committed a violation, by crossing the double-yellow lines, or passing the stopped vehicles, the stop sign was the overriding traffic control. Voorhees had the right of way. He concluded King intended to favor Yale based on King's failure to attribute any contributing circumstances to Yale; his report that Yale's traffic control device was lane markings instead of a stop sign; and his failure to inspect the vehicle and to interview Voorhees properly.

After an investigation and hearing at which King did not testify, the City's business administrator, Howard Woolley, Jr., found King guilty of the Final Charges and the later Dismissed Charges. Woolley concluded that King intentionally filed a false and inaccurate report to favor his friend. Relying on a police witness and the Grant report, Woolley concluded that Yale was solely at fault for the accident, as he had a stop sign and Voorhees was following the common practice of forming two lanes, despite the absence of lane markings, at the corner of Marvin Drive and Cedar Avenue. However, Woolley found, "even if Mr. Vorhees [sic] were 'at fault' in the accident . . . that still would not change the fact that Officer King's police report is completely inaccurate Mr. Yale's car broadsided Mr. Vorhees' [sic] car, not vice versa." Woolley recommended removal based on King's "significant prior disciplinary history."

At the OAL hearing, the City presented testimony of William Richards, who supervised the LBPD's internal affairs unit. He testified that, according to its markings, Cedar Avenue was a one-lane road; however, motorists often ignored the merge into a single lane, and instead maintained two lanes of traffic. He opined that Yale should not have been exonerated, given that he was controlled by a stop sign. He believed King intentionally absolved Yale of liability, and found Voorhees at fault, when Yale was required to yield to oncoming traffic as he proceeded. He stated that if Voorhees's vehicle did cross the double-yellow line before trying to avoid Yale, then King should have charged Voorhees with reckless driving, but he did not.

King testified in his own behalf. He agreed that he recognized Yale and greeted him by his first name. He stated that he interviewed both drivers and did elicit Voorhees's version of the accident. King maintained that Yale asserted that Voorhees struck him and that Stewart did not say who hit whom. King testified that he did not inspect the vehicles, which were parked on Marvin Drive. He concluded that Voorhees was at fault, because he crossed the double-yellow lines, as Yale maintained. He exercised his discretion not to issue a summons.

King explained that he diagramed the accident back at the station house. Once he completed his report, he destroyed his notes of his on-scene interviews. He agreed that no witness had identified the precise point of impact depicted in his diagram. He asserted that the vehicle damage information on the form was based on his interviews; however, he admitted that the diagram and the narrative were wrong. King asserted that even if he had correctly depicted the collision, he still would have assigned fault to Voorhees. He recalled Voorhees's visit at the station, but did not recall Voorhees's attempt to show him photographs.

The ALJ credited Stewart, Yale and Voorhees all of whom testified that they told King that Yale's vehicle struck Voorhees's. The ALJ also questioned King's credibility. The ALJ noted that King first maintained that he saw Yale only on "sporadic occasions around town, yet on cross-examination appellant admitted to seeing Mr. Yale several times a year at Yale's family poultry farm." King initially claimed he had not signed the accident report, which he asserted undermined the basis for the disciplinary action; however a signed version was then produced.

The ALJ found that the motorist ahead of Stewart stopped and "waved Yale out onto Cedar Avenue" to enable him to make a left turn across the congested roadway. Meanwhile, Voorhees proceeded at thirty to thirty-five m.p.h., driving to the left of the stopped cars near the right side of the roadway, as was customary at the intersection, to position himself to make a left turn at the next corner. He swerved and only then crossed the double-yellow line to avoid Yale, who struck Voorhees on the passenger-side door.

The ALJ found that King did not ask Voorhees for his version of the accident. Indeed, if he had, his report would not have concluded that Voorhees struck Yale. The ALJ rejected King's claim that Yale and Voorhees gave contrary versions of who struck whom. The ALJ found that Stewart also advised King. King did not inspect the damage to the two vehicles.

The ALJ found that King's report contained numerous errors, including: the crash diagram's depiction of Voorhees's vehicle striking Yale's vehicle; the description of the accident; the coding for damage to the vehicles; the failure to attribute any contributing circumstances to Yale; the attribution of lane markings, as opposed to a stop sign, as the traffic control device governing Yale; and the attribution of lane markings, as opposed to channelization-painted, as the travel control device governing Voorhees. The ALJ also found that King did not assert that Voorhees crossed the double-yellow line in his report. Nor did King issue a summons to Voorhees, which King should have done if he truly believed Voorhees was at fault.

The ALJ held that his decision did not turn on his determination of who was actually at fault. The ALJ did accept the City's position that Yale, and not Voorhees, was at fault, because Yale was subject to what the ALJ deemed "the overriding control[]" of a stop sign, which could only be superseded if Voorhees were traveling at excessive speed, which Voorhees was not. However, the ALJ held:

As the function of this tribunal is not to act in the capacity of a municipal court, I hesitate to make such a finding of culpability. The issue is not culpability for the accident. The issue is whether the errors in appellant's Report were created intentionally to provide a more favorable result to an acquaintance.

The ALJ also found that Voorhees presented King with photographs, and attempted to persuade him to correct his report. King did not view the photographs and refused to change the report.

The ALJ's decision included the following conclusions: (1) "[T]he report was drafted with the intention of apportioning responsibility for the accident to Mr. Voorhees, rather to [King's] friend, Mr. Yale. (2) "[King] failed to perform his duties with impartiality and without bias with regard to his investigation of this accident." (3) "The Report was not written containing simple mistakes or errors, but rather, with the intention of moving the liability for the accident away from Mr. Yale, and onto Mr. Voorhees."

The ALJ found that the City proved the Final Charges by a preponderance of the evidence. Reviewing the penalty de novo, the ALJ agreed that removal was appropriate in view of the seriousness of the Final Charges. The ALJ reviewed King's disciplinary history, which dated back to June 1980, and included: six prior suspensions between August 1984 and October 1991; an incident of unbecoming conduct in June 2000 that resulted in a thirty-three day suspension; and a December 2003 reprimand. The ALJ held that even if he disregarded the charges from 1991 and before because of their remoteness, King continued to commit disciplinary infractions. King's dishonesty, and intentional misrepresentation constituted egregious conduct and a severe breach of public trust. The ALJ found he lacked authority to address the appropriateness of King's suspension without pay on January 8, 2009.

The Commission accepted the ALJ's fact findings and conclusions regarding the substantiated charges, and concurred in the sanction. The Commission held that King's suspension was authorized. Regarding the removal sanction, the Commission considered the seriousness of the offense and the concept of progressive discipline. Like the ALJ, the Commission did not deem it necessary to consider King's disciplinary actions that were more than seven years old given the recent disciplinary action in 2000. The Commission found King's conduct "to be extremely troubling and egregious." The Commission noted that even absent a prior disciplinary record, removal may be warranted where an officer, "clearly undermines the public's trust," as did King.

On appeal, King argues that the decision to terminate his employment was arbitrary and capricious, arguing that he correctly attributed fault to Voorhees; the sanction was excessive; and the City violated his procedural rights.

II.

The scope of our review in an appeal from a final decision of an administrative agency is limited. Circus Liquors, Inc. v. Governing Body of Middletown Twp., 199 N.J.1, 9-10 (2009). In the absence of "a clear showing that it is arbitrary, capricious, or unreasonable, or that it lacks fair support in the record," the decision will be sustained. In re Herrmann, 192 N.J.19, 27-28 (2007); see also Brady v. Bd. of Review, 152 N.J.197, 210 (1997); Henry v. Rahway State Prison, 81 N.J.571, 579-80 (1980). In determining whether an agency action is arbitrary, or capricious, we consider whether the agency's decision conforms with relevant law and is supported by substantial credible evidence in the record; and whether the agency clearly erred in reaching its conclusion. In re Stallworth, 208 N.J.182, 194 (2011). This deferential standard "is not limited to whether a violation warranting discipline has been proven; . . . [it] 'applies to the review of disciplinary sanctions as well.'" Id.at 195 (quoting Herrmann, supra, 192 N.J.at 28). We do not substitute our judgment for the agency's even though we may have reached a different conclusion. Id.at 194.

We also defer to findings of fact that are based on credibility determinations and a feel for the case. SeeState v. Nu ez-Vald z, 200 N.J.129, 141 (2009) ("A reviewing court is required to affirm the findings of the trial court if they could reasonably have been reached on sufficient credible evidence in the record."); see alsoClowes v. Terminix Int'l, Inc., 109 N.J.575, 587 (1988) (addressing ALJ's ability to make credibility findings); State v. Johnson, 42 N.J.146, 161 (1964) (stating that reviewing court must defer to a fact-finder's findings "which are substantially influenced by his opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy."). On the other hand, we owe no deference to the agency's determinations of law. ManalapanRealty, L.P. v. Twp. Comm. of Manalapan, 140 N.J.366, 378 (1995).

On appeal, the burden is on the appellant to demonstrate grounds for reversal. McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 563 (App. Div. 2002); see also Bowden v. Bayside State Prison, 268 N.J. Super. 301, 304 (App. Div. 1993) (holding that "[t]he burden of showing the agency's action was arbitrary, unreasonable, or capricious rests upon the appellant"), certif. denied, 135 N.J. 469 (1994).

Applying these standards, and based on our review of the record, we are satisfied that the Commission's findings of fact, which incorporated the ALJ's findings, are supported by substantial credible evidence, which we have reviewed in detail. We defer to the ALJ's determination that Stewart, Yale and Voorhees were all more credible than King. The ALJ and the Commission relied on sufficient circumstantial evidence to conclude that King acted intentionally to favor Yale in his preparation of the report.

We do part company with the determination that Yale, who had a stop sign, was governed by an overriding traffic control device, which rendered him solely at fault in the accident. King challenges that determination.

In our view, there was probable cause to charge both motorists with violations under the motor vehicle laws. Voorhees failed to abide by the channeled lane, and traveled at a high speed relative to the stopped vehicles. Based on King's report of the 30 m.p.h. Cedar Avenue speed limit, Voorhees may have even exceeded the limit. He created a significant risk to a motorist turning from Marvin Drive, as well as to a pedestrian who might have attempted to cross in the crosswalk, in reliance on a stopped vehicle on Cedar Avenue. The fact that motorists often violated the lane markings on Cedar Avenue did not excuse Voorhees's actions. Thus, there was probable cause to charge Voorhees with careless driving, N.J.S.A. 39:4-97; unsafe driving, N.J.S.A. 39:4-97.2a; failure to obey an official traffic control device, consisting of the markings designed to channel traffic into a single lane, N.J.S.A. 39:4-81a; failure to maintain a lane, if he crossed the double-yellow line before the collision, N.J.S.A. 39:4-88b; and perhaps, speeding, N.J.S.A. 39:4-99.

On the other hand, we do not view Yale as free from responsibility under the law, although we reject the notion that his traffic control device was "overriding." Yale was obliged to stop, which apparently he did, and then to "proceed only after yielding the right of way to all traffic on the intersecting street which is so close as to constitute an immediate hazard." N.J.S.A.39:4-144 (2008).1 It is not a defense that the motorist on the intersecting street may have been speeding, if the stopping motorist, with circumspection, could have seen the oncoming vehicle. Cresse v. Parsekian, 81 N.J. Super. 536, 546 (App. Div. 1963), aff d, 43 N.J.326 (1964). Yale had an obligation to continuously look out for oncoming traffic as he proceeded after the stop. Id.at 545. Moreover, inasmuch as Yale testified he was aware that motorists often formed two lanes on Cedar Avenue, at the Marvin Avenue corner, there was probable cause to charge him as well with careless and unsafe driving.2

However, we reject King's argument that the allocation of responsibility to Yale and Voorhees under the motor vehicle code undermines the ALJ's findings, or vindicates his actions. Although we agree there was probable cause to charge Voorhees, as King maintained, there was also probable cause to charge Yale, which King denied. Notwithstanding that the ALJ agreed with the City's witnesses that Yale was solely culpable, the ALJ expressly held that the finding was irrelevant to his conclusion that King intentionally sought to favor Yale. Regardless of the attribution of fault under Title 39, King's behavior toward Voorhees, his manner of investigation, and the report itself, all reflected his intention to favor Yale and convey a false picture of what happened.

Turning to the sanction of removal, King has failed to establish that the Commission acted arbitrarily, capriciously, or unreasonably. Although progressive discipline has been an accepted principle that promotes uniformity and proportionality, Town of W. New York v. Bock, 38 N.J. 500, 522 (1962), we have recognized that "some disciplinary infractions are so serious that removal is appropriate" even if the employee has a "largely unblemished prior record." In re Carter, 191 N.J. 474, 484 (2007) (citation omitted).

The Commission appropriately considered that this was not King's first offense, nor an anomalous deviation. King had been previously sanctioned with reprimands and suspension, warranting consideration of a progressively sterner sanction. More importantly, King's actions struck at the heart of the public trust placed in a sworn police officer to act honestly, and to execute the laws fairly, impartially, and without favoritism. King's demonstrated favoritism in his investigation of the accident; his purposefully false statements in the accident report; and his refusal to correct patent errors constitute an egregious deviation from the standards of service, and undermine reliance on his credibility in the future. See Henry, supra, 81 N.J. at 580 (reversing Commission decision reducing removal penalty where corrections officer falsified a report, noting that "falsification of a report can disrupt and destroy order and discipline"); Cosme v. Borough of E. Newark Twp. Comm., 304 N.J. Super. 191, 205-06 (App. Div. 1997) (affirming dismissal of officer for conduct unbecoming where "disregard of established performance standards . . . subverts the good order and discipline that is essential to a properly run police department"), certif. denied, 156 N.J. 381 (1998); Twp. of Moorestown v. Armstrong, 89 N.J. Super. 560, 566 (App. Div. 1965) (stating "a police officer is a special kind of public employee" whose "primary duty is to enforce and uphold the law" and "must present an image of personal integrity and dependability in order to have the respect of the public"), certif. denied, 47 N.J. 80 (1966).

King also asserts various procedural errors that do not warrant extended discussion. He argued reinstatement is required because LBPD failed to adopt the guidelines consistent with the Attorney General's internal affairs policies and procedures (AG Guidelines). See N.J.S.A. 40A:14-181. We disagree. Although LBPD did not adopt the AG Guidelines, it conducted a thorough investigation and afforded King a fair hearing; consequently, no relief is warranted. See O'Rourke v. City of Lambertville, 405 N.J. Super. 8, 22 (App. Div.) (stating reinstatement was appropriate when the agency's deviation from the AG Guidelines "undermined the fairness of the process at its inception and tainted the entire proceeding"), certif. denied, 198 N.J. 311 (2009); McElwee v. Borough of Fieldsboro, 400 N.J. Super. 388, 395-97 (App. Div. 2008) (stating that absence of AG Guidelines does not prevent police department from removing an officer based on misconduct, and finding that the standard to be applied was whether the accused was deprived of a fair investigation and a fair hearing); cf. Ensslin v. Twp. of N. Bergen, 275 N.J. Super. 352, 361 (App. Div. 1994) (stating that "procedural irregularities at the departmental level are considered 'cured' by a subsequent plenary hearing at the agency level"), certif. denied, 142 N.J. 446 (1995).

King also alleges that the City failed to comply with N.J.S.A. 40A:14-147, requiring the filing of a complaint charging a violation of internal rules and regulations within forty-five days of receipt of "sufficient information to file the matter upon which the complaint is based." The statute requires dismissal of an untimely complaint. Ibid. However, King did not present the point in his exceptions before the Commission. We therefore shall not reach it. See Neider v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).

King's remaining arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

A

1 After the accident, the law was amended to incorporate technical changes to its wording. L. 2009, c. 319, 4.

2 We note that the anonymous motorist who waved to Yale, indicating it was safe to turn left, may bear some responsibility in negligence, if that motorist acted without reasonable care. See Thorne v. Miller, 317 N.J. Super. 554, 559 (Law Div. 1998) (holding that a defendant who "waved" on another driver to make a left turn owed a duty of care).