IN THE MATTER OF JUAN RODRIGUEZ

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

IN THE MATTER OF

JUAN RODRIGUEZ,

CITY OF CAMDEN

__________________________________

December 19, 2014

Submitted October 22, 2014 Decided

Before Judges Ashrafi and Kennedy.

On appeal from the Civil Service Commission, Docket No. 2013-539.

Alterman & Associates, L.L.C., attorneys for appellant Juan Rodriguez (Stuart J. Alterman, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent New Jersey Civil Service Commission (Pamela N. Ullman, Deputy Attorney General, on the brief).

Caryl M. Amana, attorney for respondent City of Camden.

PER CURIAM

Appellant Juan Rodriguez appeals from the final decision of the Civil Service Commission ("the Commission") upholding his removal as a City of Camden police officer. We affirm.

The Camden Police Department terminated appellant based upon three Preliminary Notices of Disciplinary Action issued to

him in January, February, and March 2009. The notices specified respectively that appellant had misused his sick leave, had failed to respond to a dispatch call and to record the dispatch in his police log book, and had failed to report his arrest for driving while intoxicated, the last notice adding charges of public intoxication, insubordination, and untruthfulness.

After lengthy hearings, an Administrative Law Judge ("ALJ") concluded that the charges of abusing sick leave and failing to respond to and log a dispatch were substantiated. The ALJ also concluded that some of the charges arising from the DWI arrest were substantiated but that others from that incident must be dismissed as untimely. Instead of removal, the ALJ recommended a six-month suspension for the substantiated charges.

The Commission issued a written decision on August 12, 2012, by which it adopted the ALJ's fact findings and agreed with the ALJ's rulings regarding the DWI-related charges, but the Commission rejected the ALJ's reduction of the penalty and upheld appellant's removal as a police officer.

Before us, appellant argues that the DWI-related charges were improperly considered, that the record is devoid of evidence that he abused his sick leave, and that he had a legitimate reason for failing to respond to the dispatch.

The evidence at the administrative hearing showed that the Internal Affairs Division of the Camden Police Department ("IA") commenced an investigation of appellant's sick leave in October 2008. Twice previously, appellant had been disciplined for misuse of sick leave. His attendance records for 2008 showed that he took ten out of seventeen available days of sick leave in conjunction with his regularly scheduled days off. Appellant's regular work schedule was four consecutive days on duty and three days off duty. On ten dates from January 7 to September 29, 2008, appellant took a single day of sick leave immediately preceding or following his three days off. This pattern suggested that he was using his allotted sick leave to extend his days off and to shorten his normal work week, which was a violation of the Police Department's leave policy and rules.

IA requested that appellant explain in writing his absences along with supporting medical documentation. Appellant provided a written report of his sick days, indicating that he had taken the time off to care for his child from a prior marriage and to drive his wife to medical appointments. But he provided no documentation to support the reasons he gave. IA then issued the first of the preliminary disciplinary notices on January 29, 2009.

With respect to the dispatch charge, on February 3, 2009, defendant and a police officer named Betancourt were dispatched separately to an address on Thurman Street in Camden to respond to a "priority one disturbance." Priority one calls require two responding police units because of the potential danger to officer safety posed by the reported incident. The dispatch was made at 7:40 p.m. Both officers answered "10-4" to the dispatcher's instructions, thus indicating they had received the message and would respond.

However, appellant never went to the location of the disturbance on Thurman Street, according to the testimony of a police sergeant who was monitoring the police response to the call. Betancourt responded and handled the matter alone.

According to appellant, he was on an authorized bathroom break at the union hall when he received the dispatch. After he got himself re-equipped, he called Betancourt on her private cell phone to ask whether she still needed back-up. Appellant and Betancourt both testified that she said he was no longer needed. Appellant did not go to the scene. He also did not record the dispatch in his officer's log, which he was required to do under Police Department rules even though he never responded to the scene.

In addition to the bathroom break as his reason for not responding, appellant contended that he never should have been dispatched to the scene of the disturbance. The IA investigation revealed that appellant had been authorized by headquarters to take a bathroom break at 7:23 p.m., but the records also indicated that he was back on duty at 7:24. The investigation did not reveal who changed appellant's break status, and a witness described it as "inexplicable and inadvertent." There was no explanation in the police records for what appellant was doing at 7:40 when he received the dispatch call, except that his own log indicated that at 7:40 he was conducting a self-assigned area patrol at a different location. There was also no explanation for why appellant acknowledged the dispatch and indicated he would respond if he was unable to go to the scene of the disturbance because he was on a bathroom break. The second disciplinary notice was issued to appellant on February 18, 2009.

The third disciplinary notice was issued on March 11, 2009, although the underlying DWI incident had occurred thirteen months earlier on February 3, 2008. At 3:18 a.m. on the latter date, the police responded to a single-vehicle accident, and appellant was found nearby. According to police reports, he admitted he was the driver of the car involved in the accident. He failed road sobriety tests and was charged with DWI (.21% BAC, blood alcohol concentration).

Although no transcripts of the DWI trial are contained in our record, the disciplinary charges alleged that appellant testified at his municipal court trial on May 16, 2008, that he was not the driver of the car, that an unidentified woman was driving. The municipal court dismissed the DWI charge because of insufficient proof that appellant was in fact driving while intoxicated.

On February 16, 2009, nine months after appellant's acquittal in the municipal court, IA interviewed him about the incident. In response to questions about why he had not reported his municipal court acquittal, appellant stated he did not know he was required to do so and he believed the municipal court would provide a report to the Police Department about the outcome of the case. IA asked appellant to submit a written report within two days regarding the circumstances of the DWI arrest and his public intoxication. Appellant did not submit such a report.

The Police Department then issued the third disciplinary notice, charging: (1) public intoxication on February 3, 2008; (2) driving while intoxicated and being arrested on the same date; (3) failure to report the disposition of the charges to IA, presumably shortly after the May 16, 2008 disposition of the municipal court matter; (4) insubordination for failing to attend a meeting scheduled with IA on February 16, 2009; (5) insubordination for failing to provide a written report of the DWI matter as directed by IA on February 16, 2009; and (6)-(7) untruthfulness in that appellant told an officer at the scene of the February 3, 2008 accident and another police superior near the same time that he was the driver of the car but he testified at the May 16, 2008 municipal court trial that he was not the driver.

The three disciplinary notices were adjudicated at a departmental hearing in April 2009. On June 17, 2009, the Police Department issued a Final Notice of Disciplinary Action removing appellant from his position as an officer.

Appellant filed an administrative appeal to the Commission, and the matter was transmitted to the Office of Administrative Law for adjudication. Hearings before the ALJ were conducted on four disjointed dates from September 2009 through December 2011. The ALJ issued his decision as previously described on June 22, 2012. Both sides submitted exceptions from parts of the ALJ's decision. On August 12, 2012, the Commission issued its final decision upholding the Police Department's removal of appellant from his employment as a police officer. Appellant moved for reconsideration, but the Commission denied the motion on December 21, 2012.

On the appeal before us, we exercise a limited scope of review from the fact findings and final decision of the administrative agency. In re Herrmann, 192 N.J. 19, 27 (2007); In re Carter, 191 N.J. 474, 482 (2007). We must uphold an administrative agency's quasi-judicial decision "unless there is a clear showing that it is arbitrary, capricious, or unreasonable, or that it lacks fair support in the record." Herrmann, supra, 192 N.J. at 27-28 (citing Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963)); accord In re Taylor, 158 N.J. 644, 655-57 (1999); Close v. Kordulak Bros., 44 N.J. 589, 599 (1965). We do not owe any deference to an agency's plainly unreasonable interpretation of its own rules or regulations. See US Bank, N.A. v. Hough, 210 N.J. 187, 200 (2012). At the same time, however, a "strong presumption of reasonableness attaches to the actions of the administrative agencies." In re Carroll, 339 N.J. Super. 429, 437 (App. Div.), certif. denied, 170 N.J. 85 (2001); accord In re Vey, 272 N.J. Super. 199, 205 (App. Div. 1993), aff d, 135 N.J. 306 (1994).

Here, our review of the record and the parties' arguments leads to no ground to reverse the Commission's final decision. With one exception, we agree with the Commission's written decision of August 12, 2012.

We only disagree with the Commission's ruling that some of the alleged violations related to the DWI that occurred through the time of the municipal court trial could nevertheless be charged some nine months later. Under N.J.S.A. 40A:14-147

A complaint charging a violation of the internal rules and regulations established for the conduct of a law enforcement unit shall be filed no later than the 45th day after the date on which the person filing the complaint obtained sufficient information to file the matter upon which the complaint is based. The 45-day time limit shall not apply if an investigation of a law enforcement officer for a violation of the internal rules or regulations of the law enforcement unit is included directly or indirectly within a concurrent investigation of that officer for a violation of the criminal laws of this State. The 45-day limit shall begin on the day after the disposition of the criminal investigation.

. . . .

A failure to comply with said provisions as to the service of the complaint and the time within which a complaint is to be filed shall require a dismissal of the complaint.

[(emphasis added).]

Like its counterpart applicable to State Police disciplinary matters, N.J.S.A. 53:1-33, the quoted statute balances "three competing considerations. . . . the need for a complete and thorough internal investigation, the need for deference to a related criminal investigation, and the interests of the particular [officer] to be free of undue delay in being charged." Roberts v. State, Div. of State Police, 191 N.J. 516, 522 (2007) (construing the identical time limitations of N.J.S.A. 53:1-33).

The forty-five-day limitation period to file charges runs from the date when the employer receives sufficient information upon which to base a complaint, or, from the conclusion of a criminal investigation or the case that results from it. See Aristizibal v. City of Atlantic City, 380 N.J. Super. 405, 427-28 (Law Div. 2005). In Roberts, supra, 191 N.J. at 525-26, the Court held that the police agency could resume its internal investigation after the conclusion of the criminal matter and the forty-five-day limitation period would not run until "sufficient information" was available to the police authority in the form of an internal investigative report.

Here, the ALJ found, and the Commission agreed, that the Chief of Police of Camden was made aware of appellant s DWI arrest on the day that it occurred. The municipal court proceedings were concluded on May 16, 2008. IA took the position that appellant had a duty to inform it that he had been acquitted of the DWI charge and that the municipal court matter had been completed. Disagreeing with that position, the ALJ found that the Camden Police Department as a whole was aware of the result of the municipal court proceedings, especially because the DWI had occurred in Camden and some of the Department's own officers were involved as witnesses in the case.

IA did not pursue further investigation until February 2009. That delay was not adequately explained or reasonable. We conclude that the statutory limitation period precluded pursuit of the DWI-related charges dating back to February 3 and May 16, 2008, because more than forty-five days passed from the conclusion of the municipal court case and there was inadequate excuse for the nine-month delay.

The insubordination charges, however, were based on appellant's conduct on or about February 16, 2009. The March 11, 2009 disciplinary notice was not untimely as to those charges. In its written decision, the Commission did not address directly the timeliness of the February 2009 insubordination charges. Nor did it address the ALJ's findings with respect to the merits of those charges.

The ALJ found that appellant had in fact attended the February 16 meeting called by IA, in particular because a recording of that meeting was placed in evidence. He also found that appellant's failure to provide a report of the DWI incident to IA was not proven because the testimony of the witness who provided evidence of that violation at the hearings was stricken for his failure to comply with a subpoena.

The Commission treated the insubordination charges as if they stemmed from the February 2008 date of the DWI incident, but that factual misconception did not prejudice appellant because the Commission ruled that the insubordination charges had been properly dismissed as untimely. The Commission erred in substantiating charges of public intoxication and failing to report the arrest to superiors on February 3, 2008. Those charges should have been dismissed as untimely.

Nevertheless, the Commission determined that termination was an appropriate sanction for appellant's sick leave and dispatch violations even if the DWI-related charges had been dismissed in their entirety. We agree that the other two disciplinary notices were supported by substantial, credible evidence, and we conclude that the Commission's determination that removal was an appropriate penalty was not arbitrary, capricious, or unreasonable.

The Police Department's general order to officers prohibits "any pattern of sick leave usage such as repeatedly using sick leave in conjunction with regular scheduled days off or other benefit days off or the excessive use of sick leave in relationship to a specific period of time (e.g. eight days in six months) without medical certificate." The attendance policy further "requires an officer to provide a medical certificate when there is reason to believe that an employee is abusing sick leave." From January to September 2008, appellant used ten isolated sick days in conjunction with his three days off. IA requested that he provide medical evidence of the need for his use of sick leave on those days, but appellant did not provide medical or other documentary evidence.

His bathroom break excuse for failing to respond to the dispatch was not credible given the time of the dispatch, seventeen minutes after he was granted the break, and his failure to report back to the dispatcher that he was unavailable. Furthermore, appellant did not explain why he failed to record the dispatch in his daily log and instead recorded that he was on an area patrol elsewhere. His actions in neglecting to respond to a priority one call could have endangered another officer.

As to the appropriate sanction, appellant has not argued explicitly in this appeal that termination was too severe a penalty for the two notices that were timely issued and substantiated. Even if he had made that specific argument, we would reject it because our standard of review requires that we defer to the Commission's discretion in determining what disciplinary sanction could be imposed within the permitted range of penalties. We do not substitute our own independent assessment of the case for that of the employing authority as affirmed by the Commission. See Carter, supra, 191 N.J. at 483.

Affirmed.