NEWJERSEY STATE POLICE v. TROOPER BRANDON BRUNS 6777
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0675-16T2
NEW JERSEY STATE POLICE,
Petitioner-Respondent,
v.
TROOPER BRANDON BRUNS,
#6777,
Respondent-Appellant.
_____________________________________
Argued January 9, 2018 – Decided March 2, 2018
Before Judges Yannotti and Carroll.
On appeal from the State of New Jersey, New
Jersey State Police, Docket No. 2013-0392.
Patrick J. Caserta argued the cause for
appellant (Law Offices of Patrick J. Caserta,
attorney; Patrick J. Caserta, of counsel and
on the briefs; Jeffrey Zajac, on the briefs).
Rimma Razhba, Deputy Attorney General, argued
the cause for respondent (Christopher S.
Porrino, Attorney General, attorney; V. Nicole
Langfitt, Deputy Attorney General, of counsel;
Christine K. Neeman, Deputy Attorney General,
on the brief).
PER CURIAM
Brandon Bruns, a member of the New Jersey State Police (NJSP),
appeals from a final decision of Colonel Joseph R. Fuentes,
Superintendent of the NJSP, who found that Bruns had violated the
NJSP's rules and regulations and Standard Operating Procedures
(SOP), which require members to promptly report alleged misconduct
by other members of the NJSP and imposed a thirty-day disciplinary
suspension. We affirm.
I.
This appeal arises from the following facts. During the
evening of August 2, 2013, Bruns, Trooper Victor Pereira, J.B.,
and F.C. were at a bar in Garfield, New Jersey.1 Pereira, J.B.,
and F.C. are cousins. Sometime during the evening, Bruns observed
a verbal dispute between J.B. and Pereira. Bruns later said Pereira
had several drinks and appeared agitated. Bruns separated Pereira
and J.B., but the argument continued. The owner of the bar asked
Pereira to leave and accompanied him outside.
Later, Bruns and J.B. left the bar and went out to the parking
lot, where the verbal dispute between Pereira and J.B. continued.
The Garfield police were summoned, and one of the officers spoke
with Pereira, but the police did not take any action. At
1
We use initials to identify some of the persons involved in this
matter, to protect their identities.
2 A-0675-16T2
approximately 1:00 or 1:30 a.m., Bruns drove J.B. to his residence.
Bruns went home and fell asleep.
A few hours later, J.B. called Bruns and told him, "I think
my jaw is broken, he did it." Bruns asked who he was referring to,
and J.B. replied, "I can't." Bruns went to J.B.'s residence. When
he arrived, Bruns observed officers from the Lodi Police
Department. The Lodi police were conducting an investigation, and
J.B. was in an ambulance, which transported him to the Hackensack
University Medical Center. Bruns followed the ambulance to the
hospital. Bruns claimed he spoke with J.B., but they did not
discuss specifics of the incident.
F.C. arrived at the hospital, and Bruns asked him what
happened. F.C. told Bruns that Pereira had an altercation with
J.B., and during the altercation J.B.'s jaw was fractured. J.B.
underwent surgery. His mouth was wired closed and steel plates
were inserted into his jaw.
Later that day, Sergeant Michael Ferroni of the NJSP called
Bruns to confirm dinner plans with Bruns and J.B. During the call,
Bruns told Ferroni about the incident and said it was unlikely
they would be getting together for dinner. Bruns told Ferroni that
Pereira and J.B. had been involved in a physical altercation, and
J.B. was hospitalized with a broken jaw. Bruns later testified he
3 A-0675-16T2
was not formally reporting the incident during this phone call,
but rather speaking with Ferroni as a friend.
Ferroni contacted Sergeant Major David Dias of the NJSP on
another matter and asked him if he heard that Pereira had been
involved in an assault the night before. When he returned to work
on August 5, 2013, Dias checked and learned there was no record
of any incident involving Pereira. Dias then informed his
supervisor, Lieutenant Brooklyn Smith, who did not know about the
incident. Smith called Pereira's supervisor, Lt. Porfirio Ayala,
and Ayala called Pereira, who told him about the incident. Smith
filed a "Reportable Incident Form" with the Troop "B" Headquarters.
The NJSP immediately opened an internal investigation, which
concluded on December 19, 2013. On July 9, 2014, the NJSP served
a charge upon Bruns, alleging by failing to report Pereira's
purported off-duty misconduct, Bruns violated Article V, § 8 of
the NJSP rules and regulations (the NJSP rule), which states:
A member shall communicate promptly through
the Division chain of command all crimes,
breaches of the peace, suicides, attempted
suicides, fires, accidents, complaints,
misconduct, or other information of which the
Division takes cognizance, that may come to
the member's attention, during the performance
of such member's duty. A member shall not
withhold any information on such matters for
any reason.
4 A-0675-16T2
In addition, the charge noted that the NJSP SOP B10, § IV, ¶ A
(the SOP) states that, "Reportable incidents include but are not
limited to the following: A complaint that a member has engaged
in any form of misconduct whether on or off-duty."
Bruns denied the charge and the matter was referred to the
Office of Administrative Law for an evidentiary hearing before an
Administrative Law Judge (ALJ). On June 29, 2016, the ALJ issued
an initial decision, which found that Bruns violated the NJSP
rules and regulations and the SOP by failing to immediately report
Pereira's alleged misconduct.
The ALJ rejected Bruns's contention that he had no obligation
to report the incident under the NJSP rule because he was off-duty
at the time. The ALJ found that the NJSP rule required members to
report another member's misconduct when such misconduct comes to
their attention while off-duty. The ALJ noted that it made no
sense to interpret the NJSP rule "to mean that if a [T]rooper
obtained information or witnessed a crime, but happened to be
'off-duty' he would not be obligated to report it."
The ALJ recommended that the Superintendent suspend Bruns for
thirty days. The ALJ noted that this was Bruns's third disciplinary
infraction. In 2007, Bruns had received a written reprimand; and
in 2012, Bruns had been suspended for ninety days, but the
suspension was held in abeyance.
5 A-0675-16T2
Bruns filed exceptions to the ALJ's initial decision. The
Superintendent issued a final decision on September 23, 2016. The
Superintendent adopted the ALJ's initial decision and recommended
penalty. The Superintendent also rejected Bruns's contention that
he was not required by the NJSP rule to report Pereira's alleged
misconduct. In addition, the Superintendent found no merit in
Bruns's assertion that he did not have sufficient personal
knowledge of Pereira's misconduct to report the incident. The
Superintendent also rejected Bruns's contention that a report was
not necessary because the Lodi police would inform the NJSP of the
incident and Bruns's assertion that he did not report the matter
to the NJSP because he did not want to interfere with the local
police investigation. This appeal followed.
II.
On appeal, Bruns argues that (1) the ALJ and Superintendent
erred by finding that he was required to report Pereira's alleged
misconduct; (2) the ALJ and Superintendent erred by finding that
the NJSP rule required him to report significant events that may
come to the member's attention during the member's off-duty hours;
(3) the charge rests on a standard that is impermissibly vague and
fails to provide notice of the prohibited conduct; and (4) to the
extent the ALJ or Superintendent relied upon Article IV, § 3(b)
6 A-0675-16T2
or SOP B10, § VIII, ¶ A, any such reliance constitutes reversible
error.
Initially, we note that the scope of our review of a final
decision of a State administrative agency is limited. In re
Herrmann,
192 N.J. 19, 27 (2007). An administrative agency's final
decision will be upheld "unless there is a clear showing that it
is arbitrary, capricious, or unreasonable, or that it lacks fair
support in the record." J.B. v. N.J. State Parole Bd.,
229 N.J.
21, 43 (2017) (citing In re Herrmann,
192 N.J. at 27–28).
Therefore, the court's role in reviewing an agency decision
is limited to three inquiries:
(1) whether the agency's action violates
express or implied legislative policies;
(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 upon a showing of
the relevant factors.
[R & R Mktg. v. Brown-Forman,
158 N.J. 170,
175 (1999) (citing Pub. Serv. Elec. & Gas Co.
v. N.J. Dep't of Envtl. Prot.,
101 N.J. 95,
103 (1985)).]
When we review an agency's decision, we must give "substantial
deference to the agency's expertise and superior knowledge of a
particular field." In re Herrmann,
192 N.J. at 28.
7 A-0675-16T2
III.
We turn first to Bruns's contention that the ALJ and
Superintendent erred by finding that he had a duty to report
Pereira's misconduct. Bruns argues that the record does not show
that he had sufficient knowledge of the incident to report the
matter through the NJSP's chain of command. He contends J.B. never
informed him that Pereira caused his injury and that Pereira was
the aggressor who instigated the altercation.
We are convinced, however, that the record supports the
Superintendent's determination that Bruns had sufficient personal
knowledge about the incident to report the matter through the NJSP
chain of command. As noted, Bruns testified that he witnessed a
verbal altercation between Pereira and J.B. at the bar. Bruns said
he had to separate the two men, and Pereira was asked to leave the
bar.
Thereafter, Pereira and J.B. continued their verbal dispute
outside of the bar, and police officers were called to the scene.
Only hours later, J.B. called Bruns. He told him that his jaw was
broken and that "he did it." Furthermore, at the hospital, F.C.
told Bruns that Pereira and J.B. had another physical altercation,
during which J.B.'s jaw was broken.
On appeal, Bruns contends that this information was
insufficient to show that Pereira had engaged in misconduct, and
8 A-0675-16T2
that it would have been wrong for him to "jump to [that]
conclusion." We disagree.
As the ALJ and Superintendent found, the NJSP rule and the
SOP require members of the NJSP to promptly report all crimes,
breaches of the peace, misconduct, fires, and other such
significant events "that may come to [such] members' attention."
In addition, the SOP provides that reportable incidents include
"[a] complaint that a member [of the NJSP] has engaged in
misconduct whether on or off-duty." Bruns had more than sufficient
information to report Pereira's misconduct through the NJSP chain
of command. Moreover, the NJSP rule and the SOP do not support
Bruns's contention that "personal or direct knowledge" of
misconduct is required.
Bruns also contends he did not have personal knowledge as to
whether Pereira was the aggressor or whether he may have acted in
self-defense. The Superintendent noted, however, that Bruns has
only offered speculation regarding the circumstances of Pereira's
misconduct, and Bruns had suggested that Pereira's action "may
have been justified."
The Superintendent concluded that such speculation did not
relieve Bruns of his affirmative obligation to report Pereira's
misconduct through the chain of command. The Superintendent also
noted that there was no basis for Bruns's assertion that he did
9 A-0675-16T2
not need to report Pereira's misconduct because the Lodi police
would report the incident to the NJSP, and Bruns did not want to
interfere with the investigation. The record supports those
findings.
IV.
Next, Bruns argues that the ALJ and Superintendent
misinterpreted the NJSP rule as requiring members of the NJSP to
report crimes, breaches of the peace, fires, misconduct, and other
such significant events that may come to the members' attention
during their off-duty hours. Bruns contends the NJSP rules and
regulations only require members to report when such events come
to the members' attention during their on-duty hours.
The NJSP rule does not, however, limit a member's duty to
report such events that may come to his or her attention during
the member's on-duty hours. As noted, the rule states that the
member has a duty to report the specified information that comes
to his or her attention "during the performance of such member's
duty." (Emphasis added). The ALJ and Superintendent reasonably
found that the phrase "such member's duty" is not limited to the
member's on-duty working hours.
It is well established that police officers are "a special
kind of public employee." Moorestown Twp. v. Armstrong,
89 N.J.
Super. 560, 566 (App. Div. 1965). As such, they are held to a
10 A-0675-16T2
higher standard of conduct than persons in most other occupations.
In re Phillips,
117 N.J. 567, 576–77 (1990). Indeed, a police
officer "represents law and order to the citizenry and must present
an image of personal integrity and dependability in order to have
the respect of the public." Armstrong,
89 N.J. at 566. This higher
standard of care is "implicit in all departmental regulations" and
applies to conduct both on and off-duty. In re Phillips,
117 N.J.
at 577.
Here, the Superintendent reasonably found that each member
of the NJSP has a duty to follow and abide by the NJSP rules and
regulations and that duty does not depend upon the member's hourly
work schedule. See Rogers v. Jordan,
339 N.J. Super. 581, 588
(App. Div. 2001) (finding that an off-duty officer is nonetheless
still subject to duty); Connell v. Bd. of Review,
216 N.J. Super.
403, 407 (1987) (citing Atlantic City Police Reg. 3:1-6) (finding
that police officers, although periodically relieved of routine
duties, are always subject to duty); Rivell v. Civil Serv. Com.,
115 N.J. Super. 64, 70 (App. Div. 1971) (finding that a police
officer, whether off-duty, on a leave of absence, or suspended,
remains subject to the department's applicable rules and
regulations).
Thus, in this case, the ALJ and the Superintendent reasonably
found that the NJSP rule requires a member to report crimes,
11 A-0675-16T2
breaches of the peace, fires, misconduct, and other such
significant matters including those that come to the member's
attention during off-duty hours. As the ALJ noted, it would make
no sense to interpret the rule so that a member of the NJSP would
have no duty to report a crime, breach of the peace, fires,
misconduct, or other such significant event merely because
information about the event came to the member's attention during
his or her "off-duty" hours.
Furthermore, as the ALJ noted in his decision, Bruns did not
indicate in his initial statement to Ferroni or at the hearing
that he believed he did not have a duty to report Pereira's
misconduct because that information came to his attention while
he was off-duty. Rather, Bruns claimed he had no duty to report
the incident because he did not have sufficient personal knowledge
of the alleged assault.
We therefore conclude that the record supports the
Superintendent's determination that the NJSP rule and the SOP
require a member to report crimes, breaches of the peace, fires,
misconduct, and other such significant events through the NJSP's
chain of command if knowledge of such matters comes to the member's
attention "during the performance of such member's duty," which
includes the member's off-duty hours.
12 A-0675-16T2
V.
Bruns also argues that the charge against him was based on a
standard that is impermissibly vague and fails to provide members
of the NJSP notice of the prohibited conduct. He contends there
is an inconsistency between the NJSP rule, which requires a member
to report matters that come to his or her attention "during the
performance of such member's duty" and the SOP, which states that
a member must report "[a] complaint that a member has engaged in
any form of misconduct whether on or off-duty." Bruns also contends
the term "misconduct" is undefined and fails to provide adequate
notice of the matters that should be reported. We find no merit
in these contentions.
There is no inconsistency between the NJSP rule and the SOP.
The SOP states that reportable events include the alleged
misconduct by a member of the NJSP, regardless of whether such
misconduct was committed on or off-duty. The NJSP rule requires a
member to report misconduct, when it comes to a member's attention
"during the performance of such member's duty." As stated
previously, the Superintendent reasonably determined that the term
"duty" in the NJSP rule encompasses a member's on- and off-duty
hours.
Moreover, the term "misconduct" is not impermissibly vague.
The word "misconduct" has been defined as unlawful, bad or
13 A-0675-16T2
dishonest conduct, or willfully improper behavior. Webster's New
World College Dictionary, 866 3d. Ed. 1997. There is nothing vague
about these concepts. In addition, the misconduct at issue here,
specifically an alleged aggravated assault, clearly comes within
the ambit of the reporting obligation under the NJSP rule and the
SOP.
Furthermore, at the hearing Bruns testified that at the police
academy, he was provided with a copy of the NJSP rules and
regulations, which elaborate and explain the concept of
"misconduct." Bruns also conceded that as a member of the NJSP,
he is required to possess and understand the NJSP's rules and
regulations at all times.
Therefore, the NJSP rule and the SOP provide members of the
NJSP with reasonable notice of the members' reporting obligation,
specifically with regard to misconduct and complaints that another
member committed misconduct. The NJSP rule and the SOP provided
Bruns with adequate notice of his duty to report Pereira's alleged
misconduct and the potential for disciplinary action if he failed
to comply.
VI.
Bruns also contends that in its post-hearing brief, the NJSP
sought to amend the charge to include an allegation that he
violated Article IV, § 3(b) and SOP B10, § VIII(a). Bruns argues
14 A-0675-16T2
he had was not afforded an opportunity to review or rebut the
proposed amendment during the hearing. He further argues that to
the extent the ALJ or the Superintendent relied upon either Article
IV, § 3(b) or SOP B10, § VIII(a) in their respective decisions,
any such reliance represents reversible error.
This contention is without sufficient merit to warrant
discussion. R. 2:11-3(e)(1)(E). We note, however, that there is
no indication in the ALJ's initial decision or the Superintendent's
final decision that the NJSP's motion to amend the charge had been
granted. Furthermore, as we have explained, Bruns was charged with
failing to report Pereira's alleged misconduct, as required by the
NJSP rule and the SOP. He was not charged with a violation of any
other NJSP rule or SOP.
Affirmed.
15 A-0675-16T2
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