IN THE MATTER OF LAWRENCE REYNOLDS

NOT FOR PUBLICATION WITHOUT THE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

LAWRENCE REYNOLDS,

TOWNSHIP OF IRVINGTON

______________________________

November 23, 2015

Submitted April 14, 2015 Decided

Before Judges Ostrer and Sumners.

On appeal from the Civil Service Commission Docket No. 2012-3260.

The Anthony Pope Law Firm, P.C., attorneys for appellant Lawrence Reynolds (Annette Verdesco, on the brief).

Roth D'Aquanni, LLC, attorneys for respondent Township of Irvington (Evans C. Anyanwu, of counsel and on the brief).

John J. Hoffman, Acting Attorney General, attorney for the respondent Civil Service Commission (Todd A Wigder, Deputy Attorney General, on the statement in lieu of brief).

The opinion of the court was delivered by

SUMNERS, JR., J.A.D.

Lawrence Reynolds appeals from the final agency decision of the Civil Service Commission (the Commission) upholding the termination of his employment as a police officer with the Township of Irvington Police Department (Irvington). We affirm.

We glean the following facts from the record. Reynolds began service as an Irvington Township police officer in August, 1994. On January 7, 2012, in conjunction with the Irvington Police Department's Job in Blue Program, Reynolds was working part-time on an extra-duty assignment to provide security at a local Burger King fast-food restaurant. During the assignment, he wore his full police uniform and carried his police-issued handgun.

At around 10:58 p.m., Irvington Police Sergeants Lester Wilson and Kim Williams went to the restaurant as the result of a report by an unidentified Burger King patron at approximately 10:24 p.m. that Reynolds was sleeping. The sergeants observed Reynolds sleeping for approximately five minutes before Wilson went up to Reynolds to speak to him, and when Reynolds did not wake-up, Wilson tapped him on the arm. Reynolds awoke, stood up, and went into the bathroom for several minutes. After determining that there was no medical emergency, Wilson sent Reynolds to police headquarters to submit an administrative report regarding the incident.

Wilson and Williams then spoke with the assistant manager on duty, who indicated that Reynolds was sitting there with his eyes closed when she began her shift at 10:15 p.m. She also indicated that there was video surveillance available, but that she did not have direct access to the system. The general manager would later provide Irvington with that video footage. Reynolds was also allegedly photographed/videotaped sleeping in his uniform at four different times between 9:04 p.m. and 10:38 p.m. by unidentified civilians.

On February 22, Irvington served Reynolds with a Preliminary Notice of Disciplinary Action, charging him with one count of Prohibited Activity on Duty (Sleeping), IPDM1 3.2.1(a) (charge one); four counts of Standards of Conduct, in violation of IPDM 3.1.1 (charges two, three, four and five); one count of General Responsibilities and Police Force Mission Statement, in violation of Standard Operating Procedure 1:08 II (9) (charge six); three counts of Truthfulness, in violation of IPDM 3.10.9 (charges seven, eight, and thirteen); one count of Failure to Perform Duties, N.J.A.C. 4A:2-2.3(a)(1) (charge nine); one count of Neglect of Duty, N.J.A.C. 4A:2-2.3(a)(7) (charge ten); one count of Conduct Unbecoming, N.J.A.C. 4A:2-2.3(a)(6) (charge eleven); and one count of Obedience to Laws and Regulations, in violation of IPDM 3.1.10 (charge twelve). As penalty, Irvington sought Reynolds' termination, effective May 8, 2012.

Following an April 23, 2012 disciplinary hearing, Reynolds was served a Final Notice of Disciplinary Action upholding the charges and his termination. On May 16, 2012, Reynolds appealed the disciplinary action with the Office of Administrative Law, pursuant to N.J.S.A. 40A:14-202(d).

The matter was heard before an Administrative Law Judge (ALJ) on September 24, December 17, and December 20, 2012. During the hearing, the surveillance video was barred from evidence due to a failure in the proper chain of custody between Burger King and Irvington. Irvington called as witnesses: the two sergeants who witnessed Reynolds sleeping; two Burger King assistant managers on duty that evening; the Burger King general manager who provided internal affairs with the surveillance tape; the Irvington internal affairs investigator who testified that Reynolds had lied about whether the sergeants had seen him sleeping; and the Irvington captain to whom Reynolds allegedly made false statements.

Reynolds testified on his own behalf. Reynolds also called as expert witness an ophthalmologist, who testified that Reynolds had keratoconjunctivitis sicca, commonly known as dry eye syndrome. The ophthalmologist explained that this condition caused burning and redness in the eye, and that the symptoms are relieved by closing one's eyes briefly to moisturize them, and/or using prescription lubricating eye drops. However, she opined that neither the condition nor the treatment cause drowsiness.

On September 19, 2013, the ALJ issued his Initial Decision upholding Reynold's termination. The ALJ found that, based upon the testimonial and documentary evidence presented, Reynolds was asleep while working his assignment at Burger King. Further, the ALJ determined that even accepting that Reynolds was suffering with an eye condition, neither the condition nor the medication used to treat the condition caused drowsiness.

The ALJ found that Reynolds engaged in conduct unbecoming a public employee when he slept while working the extra-duty assignment in his police uniform armed with his handgun. Because Reynolds fell asleep in a public place with a potentially exposed weapon, the ALJ held that Reynolds presented a danger to himself and to the public. The ALJ also found that Reynolds was negligent in his duties by not performing the security functions of his assignment.

Citing In re Herrmann, 192 N.J. 19, 33-34 (2007), the ALJ held that "[p]rogressive discipline may be 'bypassed when an employee engages in severe misconduct,' especially where the offense involves 'public safety' and risks 'harm to persons or property.'" Nevertheless, the ALJ considered Reynolds prior disciplinary history. He noted that during Reynolds' seventeen-year career, he has "been the subject of fifty-one separate Internal Affairs investigations, with thirty-three sustained cases," resulting in five suspensions, seven reprimands, one performance notice, and seventeen incidents of counselling. At least three disciplinary incidents reported by Internal Affairs involved Reynolds sleeping on duty, though one of those charges was dismissed. Accordingly, the ALJ upheld Irvington's removal of Reynolds on the grounds of charges one, six, nine, ten, eleven, and twelve, but did not find that Irvington met its burden of proof on charges two, three, four, five, seven, and thirteen, with charge eight having merged into charge seven.

Reynolds filed exceptions to the ALJ's decision with the Commission, arguing that the ALJ did not give proper weight to alleged flaws in the investigation, and that the penalty of termination was inappropriate. On October 16, 2013, the Commission accepted and adopted the ALJ's findings of fact and conclusions, and the recommendation to uphold Reynolds' termination. Based upon its independent evaluation of the record, the Commission found that the credible testimony and evidence supported the finding that Reynolds was sleeping while on his off-duty assignment at Burger King. Therefore, the charges of sleeping on duty, failure to perform duties, neglect of duty, and conduct unbecoming a public employee were proven.

The Commission also reviewed de novo whether the penalty was proper. The Commission found that, although Reynolds' infractions "in and of themselves may not be sufficient to impose removal, [Reynolds'] disciplinary history supports the penalty of removal in this matter." Moreover, the Commission found that Reynolds "sleeping while on duty in a highly visible, public place, with a potentially exposed weapon, presents a danger to both the police officer and to the public." Based on the totality of the record, including the seriousness of the offense and Reynolds' disciplinary record, the Commission concluded that removal was an appropriate penalty. This appeal followed.

On appeal, Reynolds raised the following argument

POINT I

THE CIVIL SERVICE COMMISSION'S DECISION DISMISSING [REYNOLDS'] APPEAL AND AFFIRMING THE RULING OF THE OFFICE OF ADMINISTRATIVE LAW, WAS ARBITRARY, CAPRICIOUS, OR UNREASONABLE AND IS CONTRARY TO LAW.

We are guided by well-established principles in our review of the Commission's decision. The scope of appellate review of an administrative agency's final determination is limited. In re Stallworth, 208 N.J. 182, 194 (2011). In determining whether an agency action is arbitrary, capricious, or unreasonable, we must make three inquires

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

[Herrmann, supra, 192 N.J. at 27-28 (internal citations omitted).]

Where an agency satisfies this standard of review, we must give "substantial deference to the agency's expertise and superior knowledge of a particular field." Id. at 28. We must defer even if we would have reached a different result. In re Carter, 191 N.J. 474, 483 (2007). In short, we are not permitted to substitute our judgement for that of the administrative agency. Barrick v. State, 218 N.J. 247, 260 (2014). Finally, there is a "strong presumption of reasonableness [that] attaches to the actions of the administrative agencies." In re Carroll, 339 N.J. Super. 429, 437 (App. Div. 2001) (citation omitted).

With these principles in mind, we discern no factual or legal basis to overturn the final decision of the Commission approving the termination of Reynolds. We reject Reynolds' contention that there was insufficient proof that he was sleeping. We also find no merit to his argument that the initial report by an unidentified person was suspect. The fact remains that there was credible testimony by Wilson, Williams, and Burger King staff that he was sleeping, not merely closing his eyes, during his assignment.

As for Reynolds' termination, we see no reason to reverse such disciplinary action based on his contention that: the penalty violated principles of progressive discipline; was disproportionate to the charges Reynolds was found guilty of; and there were no complaints or incidents resulting from his falling asleep. There was more than sufficient proof of Reynolds' prior disciplinary history to warrant his termination.

Further, while Reynolds was performing an off-duty assignment to provide security at a local fast food restaurant, he did so with the approval of and under the guidelines of the Irvington Police Department. He was clearly representing the police department by wearing his police uniform and displaying his police-issued firearm. His engagement at Burger King was a direct result of his position as a police officer. See State v. Bullock, 136 N.J. 149, 157 (1994) ("[W]hen law-enforcement officers commit an act of malfeasance . . . because of the opportunity afforded by that office, their conduct sufficiently relates to their office to support a conviction [for official misconduct].").

As a representative of the Irvington Police Department, Reynolds was entrusted with the duty to serve and protect the public at the time and place in question. Obviously, he cannot do so while openly sleeping in a public establishment that he was hired to protect. Moreover, his conduct damages the public image of the police department. See Karins v. Atl. City, 152 N.J. 532, 554 (1998) (conduct unbecoming a police officer involves conduct that "has a tendency to destroy public respect for municipal employees and confidence in the operation of municipal services") (internal quotations and citation omitted).

Lastly, that fact that no incidents arose while he slept during his security detail is of no moment. As noted, Reynolds was caught sleeping while on his Job in Blue assignment. The blatant fact that he was asleep while on duty, coupled with his prior disciplinary record, are alone sufficient grounds to justify his removal from office.

Affirmed.

1 Refers to the Irvington Police Department Manual.