IN THE MATTER OF MICHAEL BIAZZO

NOT FOR PUBLICATION WITHOUT THE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 MICHAEL BIAZZO, Douglas Foster, William Hertline, III, Vito Moles, Michael Killion andMichael Hutnan, Township of Pennsauken Police Department.

September 22, 2016

Argued December 7, 2015 Decided

Before Judges Lihotz, Fasciale and Nugent.

On appeal from the Civil Service Commission, Docket Nos. 2013-1003, 2013-1004, 2013-1005, 2013-1006, 2013-1007, 2013-1008.

Katherine D. Hartman argued the cause for appellants Michael Biazzo, Douglas Foster, William Hertline, III, Vito Moles, Michael Killion and Michael Hutnan (Hartman, Chartered, attorneys; Ms. Hartman, on the brief).

Joseph G. Antinori argued the cause for respondent Township of Pennsauken, Department of Public Safety (Brown & Connery, LLP, attorneys; Mr. Antinori, on the brief).

John J. Hoffman, Acting 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

NUGENT, J.A.D.

Six Pennsauken Township police officers appeal from the Civil Service Commission's final administrative order upholding the appointing authority's suspensions of the officers. The officers contend the disciplinary charges should be dismissed because their department disregarded numerous Attorney General Guidelines during their investigation of their conduct. For the reasons that follow, we affirm.

The events culminating in the disciplinary charges began on

May 7, 2011, when two off-duty Pennsauken Township police officers were involved in an altercation at a local bar. From July 21, 2011 through August 15, 2011, each of the six officers, who were either at the bar or involved in the incident's investigation, were served a Preliminary Notice of Disciplinary action (PNDA). On December 23, 2011, one of the officers was served with a second PNDA. Following departmental hearings and service on each officer of a Final Notice of Disciplinary Action (FNDA), charges against the officers, including conduct unbecoming and neglect of duty, were sustained and the officers received suspensions.

The officers filed an administrative appeal and the disciplinary actions were referred to the Office of Administrative Law (OAL), where an administrative hearing was conducted over five non-consecutive days. On December 27, 2013, the Administrative Law Judge (ALJ) issued his decision, upholding the Pennsauken Township Police Department's discipline of the officers. On February 26, 2014, the Civil Service Commission (the Commission) issued a final decision adopting the ALJ's factfinding and upholding the appointing authority's disciplinary action. This appeal followed.

The parties developed the following proofs at the OAL hearing. On Saturday, May 7, 2011, Pinsetters Bar and Bowl hosted a "Spring Fling," a town get-together. Off-duty officers Michael Killion and Michael Biazzo attended the event from approximately 6:00 or 7:00 p.m. until approximately 11:00 p.m. During that time, the officers were drinking: Officer Biazzo admitted drinking three beers and two mixed drinks, and Officer Killion admitted he was "under the influence of alcohol."

According to Officer Biazzo, he was having a conversation with someone he did not know about teachers, police officers, and the Governor. During the conversation, another unknown male approached and made remarks about the Pennsauken Police Department. After Officer Biazzo said he did not want any trouble, the man knocked his drink from his hand and "sucker punched" him in the eye. "A disturbance ensued." Officer Biazzo got off the ground and exited Pinsetters. He neither touched nor used force against any other individual.

Officer Killion testified he had been talking to someone near the bar area and was approximately ten to fifteen feet from Officer Biazzo when he saw two unknown males punching him. In response, Officer Killion pulled one of the males away from Officer Biazzo. While coming to the aid of Officer Biazzo, Officer Killion was struck several times in the face by a third male, causing him to fall to the ground. When he got up, he was not able to see out of his left eye. Officer Killion left Pinsetters.

Officer Killion was assisted by another off-duty officer, Vito Moles, who had also been at Pinsetters. The three officers drove in the same car to Officer Killion's residence, which was less than one mile away.

The parties stipulated a 911 call for assistance from Pinsetters was made at 10:58 p.m. Officer Douglas Foster responded within one minute and seven other officers also responded. When Officer Foster entered Pinsetters he noticed overturned tables and liquid on the floor, leading him to conclude an altercation had taken place.

Officer Foster went outside, where he spoke to a layman who said he had been having a "political discussion" with Officer Killion when he was "sucker punched" by Officer Killion's "fat fuck friend." The man declined to disclose the identity of the assailant. Officer Foster called for an ambulance but the man refused treatment.

Officer Foster testified his investigation was made more difficult because Officers Killion and Biazzo left the scene before responding police officers arrived. He acknowledged that one of the layman's friends could have been the person who assaulted Officers Killion and Biazzo, but the officers were not there to identify an assailant. Because the layman did not want to file charges, Officer Foster believed there was no reason to contact Officer Killion to obtain additional information. Office Foster returned to headquarters to finish work on a report for an unrelated matter.

Officer William Hertline also responded to the 911 call. When he arrived, several people told him the layman who was speaking to Officer Foster had been involved in the altercation. Officer Hertline approached the layman and noticed a bleeding cut over one of his eyes. Officer Hertline spoke to the layman, who repeated what he had told Officer Foster. Officer Hertline walked away, expecting Officer Foster to complete the report because he was assigned to District One that night while Officer Hertline was assigned to District Six.

Every responding officer returned to their respective districts, except Officer Foster and Officer Hertline. Officers are taught to return to their own coverage areas once a scene is adequately under control and they are no longer needed. Officer Hertline did not immediately return to District Six; instead, he called Officer Killion to check on his well-being and verify the layman's statement. When Officer Hertline was unable to reach Officer Killion on his cell phone, he drove to Officer Killion's home.

Officer Hertline arrived at Officer Killion's home at approximately 11:30 p.m. and remained there for twenty to thirty minutes. Officer Killion answered the door and it was apparent that he had been injured. Officer Killion held a towel to his face to stop his injury from bleeding. Officer Biazzo was also injured and was holding either ice or frozen vegetables on his face. Officer Moles was present. Officer Hertline reported what the layman had said and then informed the others they should notify the watch commander as required by standard operating procedure (SOP).1 During the OAL hearing, the parties stipulated Officer Biazzo contacted the Pennsauken Police Department dispatcher at 12:55 a.m. to request a supervisor. Thus, nearly two hours elapsed following the 911 call from Pinsetters before any officer involved in the altercation notified a superior.

After leaving Officer Killion's home at approximately 11:50 p.m., Officer Hertline returned to District Six. He did not attempt to contact a supervisor and report the location of Officers Biazzo, Killion, and Moles, nor did he report or record on his log or trip sheet that he had been to Officer Killion's home.

Officer Foster returned to headquarters at approximately 11:30 p.m., where he remained until 12:06 a.m. Sergeant Warwick, the watch commander from 4:00 p.m. until 12:00 a.m., was also present. Officer Foster did not inform Sergeant Warwick what the layman at Pinsetters had said about Officer Killion. Instead, Officer Foster told Sergeant Warwick the altercation had been a male pushing or shoving a female. Sergeant Warwick testified at the OAL hearing that this statement was false.

The watch commanders who relieved Sergeant Warwick at midnight, Sergeants Hutnan and Kouvatas, were also not informed by Officer Foster of the layman's allegation that he had been struck by Officer Killion's "fat fuck friend." Sergeant Warwick testified that he would have contacted an off-duty supervisor, either a lieutenant, the Captain, or the Chief of Police, had he known that Officers Killion and Biazzo were involved in a fight.

Although Officer Foster claimed he did not know Officer Hertline had gone to Officer Killion's home, Office Foster acknowledges his cell phone bill shows he was called by Officer Hertline at 11:26 p.m. and 11:30 p.m., and that he called Officer Hertline at 11:55 p.m. and 12:28 a.m. The calls from Officer Hertline coincide with when he was in route to Officer Killion's home. The calls to Officer Hertline coincided with his departure from Officer Killion's home.

Additionally, Officers Foster and Hertline met in the parking lot of Rice & Holman car dealership that night. Officer Foster's log indicates that he was at Rice & Holman from 12:39 a.m. to 1:22 a.m. Officer Hertline's log indicates he was on patrol in District Six at this time. It is undisputed that Officer Hertline left District Six to meet with Officer Foster at Rice & Holman. Officer Hertline testified it is routine for officers to visit one another across district lines, so his behavior that night was not out of the ordinary.

Although Sergeants Hutnan and Kouvatas were co-watch commanders that night, Sergeant Hutnan was considered to be the more senior officer because he had spent more time as a sergeant. Sergeant Kouvatas received a call that there was a request for a supervisor. Sergeant Hutnan knew only that Officer Biazzo had called to request a supervisor go to Officer Killion's home. Between 1:20 and 1:30 a.m., Sergeant Kouvatas called Sergeant Hutnan to tell him Officers Killion and Biazzo had been in some sort of altercation. Once off the phone, Sergeant Hutnan searched for a report of the incident but was unable to find one. He determined Officer Foster was responsible for creating the report. Therefore, he called Officer Foster and instructed him to return to headquarters to inform him about the Pinsetters incident.

Sergeant Kouvatas arrived at Officer Killion's home at approximately 1:15 a.m. When he arrived, Officers Biazzo, Killion and Moles were on the lawn outside.2 Sergeant Kouvatas observed that Officers Biazzo and Killion were injured.

At approximately 1:40 a.m., Officer Foster came to headquarters to speak with Sergeant Hutnan. Officer Foster related what he knew about the events from his conversation with the layman he had spoken with at Pinsetters. Officer Foster did not inform Sergeant Hutnan that Officer Hertline had gone to Officer Killion's home, nor did he prepare a written report stating he went to Officer Killion's home. Officer Foster called Officers Biazzo and Killion and then prepared his written report on a PD-1, a form used for reporting minor incidents. The report omitted any reference to the layman's statement regarding Officer Killion's "fat fuck friend." Officer Foster stated this was an oversight and he was not trying to hide this statement.

A general order of the Pennsauken Police Department requires officers to alert superiors when a police officer is severely injured or killed, whether on or off duty. Sergeant Hutnan testified that the general order did not require him to contact a superior officer because Officers Killion's and Biazzo's injuries were not severe. He said he had intended to alert Captain Connor before his shift ended; however, he did not. At 8:00 a.m., Sergeant Nichols relieved Sergeants Hutnan and Kouvatas and immediately contacted Captain Connor upon discovering that Sergeants Hutnan and Kouvatas had not notified him. Captain Connor notified the Chief, John J. Coffey.

Upon learning about the altercation, Chief Coffey drove to headquarters. He ordered Sergeant Nichols to have Officers Biazzo, Killion, and Moles complete written reports at the station. Officer Biazzo completed his report and left before Chief Coffey arrived. Officers Killion and Moles arrived at headquarters with their attorneys and left without completing a report or giving a statement. According to Chief Coffey, this surprised him because he "thought that . . . they had an obligation to cooperate just like all other victims that we bring into headquarters or . . . exhibiting injuries . . . . I felt that these officers would cooperate with the investigation so we could file complaints."

According to the Chief, because he had not received written reports from Officers Killion and Moles, on Tuesday, May 10, three days after the altercation, he sent identical sets of sixteen questions to Captain Connor. Captain Connor was instructed to distribute the questions to the officers who responded to the Pinsetters call. According to the Chief, he favored questions of this type because he is often able to elicit a more full response to specific inquiries rather than asking the officers to prepare comprehensive reports.

As he began to gather information about the Pinsetters incident, the chief grew concerned about the way both the on and off-duty officers behaved, such as by withholding information. For that reason, the Chief, along with Internal Affairs (IA) Officer Detective Sergeant Piccinini, asked on and off-duty officers to complete additional sets of more detailed questions.

On May 10, 2011, Officer Hertline answered the sixteen on duty questions. On May 18, 2011, he was asked to answer supplemental questions and meet with Sergeant Piccinini. Matt Henkel, a union representative, was present. Officer Hertline and Henkel signed the witness acknowledgement and administrative only forms. Officer Hertline answered all questions after meeting with Henkel.

On May 11, 2011, Officer Foster answered the sixteen questions given to the on-duty officers who responded to the Pinsetters call. On May 20, 2011, Officer Foster executed witness and administrative only forms and answered the IA questions. Officer Foster requested Henkel be present while he answered questions given by Lieutenant Probasco. Officer Foster testified he had no changes to his answers.

On May 18, 2011, Officer Moles' attorney, Karl McConnell, wrote to Sergeant Piccinini asking whether Officer Moles was a subject or witness in the IA investigation. On May 27, 2011, Officer Moles answered the IA questions. Lieutenant Probasco informed Officer Moles that he could have an attorney present, and Officer Moles contacted McConnell. Officer Moles signed forms which advised him that he was the subject of an IA investigation; McConnell did not object to Officer Moles executing them. McConnell also did not object to the instructions Officer Moles received. He advised Officer Moles on the questions and instructed the officer to object to one question.

On June 3, 2011, Officer Killion completed his IA questions. He did so with Lieutenant Probasco, who told Officer Killion he could have a union representative and an attorney if he wanted. Officer Killion contacted his attorney, Richard Madden, who came to headquarters and sat with him while he answered questions. The questions were answered at a computer in the common area of the station. Lieutenant Probasco was sitting approximately five feet away from Officer Killion. At no time did Madden object to the instructions or directions for answering the questions. Officer Killion testified that he did not see a need to change any of his answers.

On June 15, 2011, Officer Biazzo was asked to meet with Sergeant Piccinini and IA. A representative of the Camden County Prosecutor's Office was also there. Officer Biazzo asked if he could have an attorney present and Timothy Quinlan came in. Officer Biazzo executed use immunity grant and administrative only forms, understanding that he had been granted immunity. Officer Biazzo answered the written IA questions with Quinlan present. At the request of Quinlan, they were given a more private area to answer the questions.

On June 20, 2011, Sergeant Hutnan answered IA questions. He executed witness acknowledgment and administrative only forms given by Sergeant Piccinini. After executing the forms, he answered the questions provided. Officer Hutnan is an attorney and was aware he could have contacted a union representative to be there while he answered questions.

The investigation of the incident took place through May and June of 2011. Sergeant Piccinini sent reports to the Camden County Prosecutor's Office, whose personnel responded on July 13, 2011. The response stated, "this case is very disturbing" but nevertheless concluded, "no criminal complaints will be brought by this office and we will not pursue any further investigation or prosecution." The prosecutor's office commented it was now proper for IA to "take any administrative action . . . deem[ed] appropriate."

Following receipt of the letter, the Township served eight PNDAs on the officers. A departmental hearing was conducted on May 14, 15, and 16, 2012. FNDAs were issued thereafter. Officer Hutnan was suspended for ten days and the remaining officers were suspended for thirty days.

In a seventy-two page opinion issued December 27, 2013, the ALJ upheld the appointing authority's discipline of the officers. The ALJ made clear from the outset "there is no allegation made nor any evidence offered to establish that [Officers Killion and Biazzo] were the instigators of the fight." The ALJ also noted Officer Moles was not directly involved in the altercation.

Nonetheless, the ALJ concluded that Officers Killion, Biazzo, and Moles hindered the investigation "when they left the vicinity of Pinsetters without either awaiting the arrival of officers or, at the very least, contacting the Department before departing to ascertain if officers were on the way to Pinsetters, or, if truly feeling threatened, to immediately contact the Department once they had departed their parking location." In addition, as to Officer Killion, the ALJ found he did not report the incident to his on-duty watch commander "as soon as possible" as required by a SOP. In the ALJ's view, the violation constituted conduct unbecoming an officer and neglect of duty, charges contained in the PNDA and FNDA. The ALJ also found Officer Biazzo violated the reporting requirement of SOP. For the same reason, the ALJ concluded Officer Moles had violated the same operating procedure and thereby engaged in conduct "inappropriate for an officer and neglectful of his duty."

The ALJ further concluded Officer Hertline engaged in conduct unbecoming an officer by failing to alert his watch commander that two off-duty officers had been involved in an altercation at Pinsetters and had been injured. In the ALJ's view, that failure constituted conduct unbecoming an officer. The ALJ also determined that Officer Hertline's failure to report his stops following the incident at Pinsetters constituted misconduct. Similarly, the ALJ concluded Officer Foster had improperly failed to notify the watch commander of what had occurred at Pinsetters, and that the failure to make the report constituted misconduct and neglect of duty. Lastly, the ALJ concluded Sergeant Hutnan neglected his duty to report the incident and events thereafter to a superior officer.

Next, the ALJ rejected the Officers' argument that the disciplinary charges should be dismissed because the appointing authority violated the Attorney General's Guidelines on Internal Affairs Policy and Procedures. After detailing the factual underpinnings of the officers' allegations, the ALJ found "that while the Department did not comply with several elements of the Guidelines, these failures did not taint the process or deprive the officers of a fair investigation or a fair hearing." For that reason, the ALJ concluded "there is no basis for interfering with the imposition of appropriate discipline on these respondents."

On February 26, 2014, the Commission "accepted and adopted the Findings of Fact and Conclusion" from the ALJ decision.

On appeal, the officers do not challenge the ALJ's fact finding, nor do they challenge the ALJ's conclusions that the facts supported the violations for which the ALJ upheld the suspensions. Rather, the officers argue a single point: "Pennsauken's numerous and flagrant violations of the New Jersey Attorney General Guidelines and their own policy require that the charges from this tainted investigation be dismissed." More specifically, the officers argue the investigation into the officers' conduct violated N.J.S.A. 40A:14-181 in several ways: (1) "Chief Coffey Personally Conducted The Internal Affairs Investigation: The Chief Was Not Authorized To Conduct Said Investigation"; (2) "An Internal Affairs Investigative Report Was Not Written, Notwithstanding The Clear Requirement For Same"; (3) "Officers Were Not Advised As To Their Status As Witness Or Target"; (4) "Confidentiality Was Ignored"; (5) "Interviews Were Not Conducted"; and (6) "The Investigation Was Not Conducted In A Fair And Objective Manner." The officers argue the Chief was politically motivated because the officers supported twelve-hour shifts and the Chief had personal animus toward the Mayor, a relative of one of the officers.

The Township, emphasizing the officers "do not argue anywhere that they did not engage in the acts or omissions that amounted to conduct unbecoming an officer, neglect of duty or failure to conduct a thorough and complete investigation" and do not "argue that the [ALJ] or the Commission erred in finding that sufficient evidence existed to uphold the charges of wrongdoing against them," argues the ALJ correctly concluded that any deviations from the Guidelines did not taint the investigation, and did not deprive the officers of a fair investigative hearing."

The Commission asserts its decision was neither arbitrary, capricious, nor unreasonable. Consequently, the Commission contends its decision should be upheld.

Our review of final administrative agency decisions is "limited." In re Stallworth, 208 N.J. 182, 194 (2011) (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579 (1980)). A strong presumption of reasonableness attaches to such decisions. In re Carroll, 339 N.J. Super. 429, 437 (App. Div.), (quoting In re Vey, 272 N.J. Super. 199, 205 (App. Div. 1993), aff'd, 135 N.J. 306 (1994)), certif. denied, 170 N.J. 85 (2001). Consequently, we generally defer to final agency actions, only "reversing those actions if they are 'arbitrary, capricious or unreasonable[.]'" N.J. Soc'y for Prevention of Cruelty to Animals v. N.J. Dep't of Agric., 196 N.J. 366, 384-85 (2008) (quoting Henry, supra, 81 N.J. at 579-80).

Under the arbitrary, capricious, and unreasonable standard, our scope of review is guided by three major inquiries: (l) whether the agency's decision conforms with relevant law; (2) whether the decision is supported by substantial credible evidence in the record; and (3) whether in applying the law to the facts, the administrative agency clearly erred in reaching its conclusion. Stallworth, supra, 208 N.J. at 194 (quoting In re Carter, 191 N.J. 474, 482-83 (2007)). "The burden of demonstrating that the agency's action was arbitrary, capricious or unreasonable rests upon the [party] challenging the administrative action." In re Arenas, 385 N.J. Super. 440, 443-44 (App. Div.) (citing McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 563 (App. Div. 2002), certif. denied, 188 N.J. 219 (2006); Barone v. Dep't of Human Servs., Div. of Med. Assistance & Health Servs., 210 N.J. Super. 276, 285 (App. Div. 1986), aff'd, 107 N.J. 355 (1987)).

Applying that standard, we affirm, substantially for the reasons given by the ALJ in his comprehensive written decision dated December 27, 2013, the findings of fact and conclusions of which were accepted and adopted by the Commission after an independent review of the record. We add only the following comments.

Under N.J.S.A. 40A:14-181, "every law enforcement" agency in New Jersey must "adopt and implement guidelines" which are "consistent with the guidelines" promulgated by the Attorney General. See also O'Rourke v. City of Lambertville, 405 N.J. Super. 8, 19 (App. Div. 2008), certif. denied, 198 N.J. 311 (2009). "[W]hen a law enforcement agency adopts rules pursuant to N.J.S.A. 40A:14-181 to implement the Attorney General's Guidelines, the agency has an obligation to comply with those rules." Id. at 23. Nonetheless, "procedural irregularities at the departmental level are considered 'cured' by a subsequent plenary hearing at the agency level." Ensslin v. Twp. of N. Bergen, 275 N.J. Super. 352, 361 (App. Div. 1994), certif. denied, 142 N.J. 446 (1995). But "[t]he Ensslin decision cannot be read to mean that any irregularity in the disciplinary process, no matter how serious, can be cured by a subsequent evidentiary hearing." O'Rourke, supra, 405 N.J. Super. at 22. If an appointing authority's deficiencies in following the Guidelines taint the disciplinary process, the disciplinary action cannot stand. Id. at 23.

Whether deviations from the Guidelines have tainted a disciplinary proceeding often will require a fact-sensitive analysis. Here, the ALJ carefully and comprehensively analyzed the proofs the parties developed and considered the officers' arguments concerning deviations from the Guidelines. After doing so, the ALJ found "that while the Department did not comply with several elements of the Guidelines, these failures did not taint the process or deprive the officers of a fair investigation or a fair hearing." For that reason, the ALJ concluded "there is no basis for interfering with the imposition of appropriate discipline on these respondents."

As previously noted, the Commission accepted the ALJ's findings and conclusions. These findings and conclusions are supported by sufficient credible evidence on the record as a whole. R. 2:11-3(e)(1)(D). In view of the mostly undisputed facts, we fail to discern from the record how non-compliance "with several elements of the guidelines" so tainted the process as to require reversal of the disciplinary sanctions.

Affirmed.

1 The policy states: "Any sworn member of this police department who while off-duty . . . uses any degree of force upon another individual will notify the on-duty [w]atch [c]ommander of the particulars surrounding the incident . . . . as soon as possible."

2 Another individual who was not a police officer was also present.