IN THE MATTER OF DOUGLAS FOSTER

NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
  This opinion shall not "constitute precedent or be binding upon any court."
   Although it is posted on the internet, this opinion is binding only on the
     parties in the case and its use in other cases is limited. R. 1:36-3.




                                    SUPERIOR COURT OF NEW JERSEY
                                    APPELLATE DIVISION
                                    DOCKET NO. A-1826-16T3

IN THE MATTER OF DOUGLAS
FOSTER.
______________________________

           Argued March 20, 2018 – Decided May 1, 2018

           Before Judges Sumners and Moynihan.

           On appeal from the Civil Service Commission,
           CSC Docket No. 2016-2539.

           Mark A. Gulbranson, Jr., argued the cause for
           appellant Douglas Foster (Attorneys Hartman,
           Chartered, attorneys; Katherine D. Hartman and
           Mark A. Gulbranson, on the brief).

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

           George N. Cohen, Deputy Attorney General,
           attorney for respondent New Jersey Civil
           Service Commission (Gurbir S. Grewal, Attorney
           General, attorney; George N. Cohen, on the
           statement in lieu of brief).

PER CURIAM

     Appellant     Douglas     Foster    appeals   from    the    final   agency

decision   by   the    Civil   Service    Commission      (CSC)   upholding     an

administrative law judge's (ALJ's) initial decision removing him
as a Pennsauken Township police officer.              The charges — conduct

unbecoming an officer; neglect of duty; failure to give suitable

attention and perform required and directed duties; failure to

promptly and accurately prepare and submit reports; and submission

of "fabricated, factually inaccurate or intentionally misleading"

communications — stem from an incident on June 5, 2014, when Foster

wrote in his Daily Officer Patrol Log (log) that he was patrolling

a section of the township between 1:50 a.m. and 2:20 a.m., but was

actually in police headquarters at that time.

     Foster reiterates his prior arguments, contending the ALJ's

findings    failed    to     account   for    "several   critical      factors"

including that the proofs were insufficient to show he deliberately

falsified the log because the clocks and GPS used to gauge the

timeframe   were     inaccurate.       He    denies   that   he    deliberately

falsified the log.         He also argues the penalty imposed – removal

– was "excessive and contradictory to Civil Service precedent."

We find none of the arguments persuasive and affirm.

     In our limited         appellate role, we will affirm an ALJ's

findings if "they are supported by substantial credible evidence

in the record."      In re Hendrickson, 
451 N.J. Super. 262, 272-73

(App. Div.), certif. granted, 
231 N.J. 143 (2017).                In making that

determination, we consider the following factors:



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              (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.

              [In re Stallworth, 
208 N.J. 182, 194 (2011)
              (quoting In re Carter, 
191 N.J. 474, 482-83
              (2007)).]

We   extend     "a   'strong   presumption    of   reasonableness'    to    an

administrative agency's exercise of its statutorily delegated

responsibilities."       Lavezzi v. State, 
219 N.J. 163, 171 (2014)

(quoting City of Newark v. Nat. Res. Council, Dep't of Envtl.

Prot., 
82 N.J. 530, 539 (1980)).          As a general rule, we give "due

regard to the opportunity of the one who heard the witnesses to

judge of their credibility . . . and . . . [give] due regard also

to the agency's expertise where such expertise is a pertinent

factor."   Clowes v. Terminix Int'l, Inc., 
109 N.J. 575, 587 (1988)

(alterations in original) (quoting Close v. Kordulak Bros., 
44 N.J. 589, 599 (1965)).

      Adhering to that limited review standard, we conclude the

ALJ's findings were well-supported by the record, and that his

decision was not arbitrary, capricious or unreasonable.              It was

undisputed that the log entry was incorrect. Foster, in his merits


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brief,   concedes     that    "[t]here        is    no   question   that    the   log

inaccurately reflected Foster's location from 1:50 a.m. through

2:20 a.m., as he has in [h]eadquarters, not patrolling [the sector

to which he was assigned]."       The ALJ considered video footage from

police headquarters that showed Foster "in that building during

the period from before 1:50 a.m. and [he] remained there until he

[was] viewed . . . exiting the rear door at 2:17 a.m."; and

testimony about the GPS records from Foster's vehicle which showed

the vehicle was at headquarters until 2:20 a.m.                      The ALJ also

considered    the    testimony    of:         Chief      John   Coffey,    Detective

Lieutenant Scott Gehring, Captain Thomas Connor, Officer Michael

DiCamillo    and    Foster.      In   a       detailed     nineteen-page    written

decision, the ALJ weighed Foster's reasons for initially going to

and, thereafter, staying at headquarters,1 and seemingly accepted

them, at least arguendo; but he found Foster had no excuse for

remaining in headquarters after 1:50 a.m. until 2:20 a.m.                         The

ALJ, in fact, noted that Foster acknowledged he had no reason to

be at headquarters after 1:50 a.m.                 The ALJ deduced that Foster

            either had to leave the time unaccounted for
            or list himself at headquarters for some
            reason that he might not be able to justify,
            or for no reason at all.    Instead of these

1
  The ALJ noted Foster "list[ed] as his reasons for his presence
at headquarters plausible grounds for his being there: a bathroom
break, a meal and relief of [an information officer] who was having
his own meal."

                                          4                                  A-1826-16T3
              choices, at least as the log shows, he covered
              that half-hour by asserting in an official
              record that he was on patrol in [his assigned
              sector], which of course he was not.

      The ALJ meticulously debunked Foster's contention that the

inaccurate      log    resulted     from       inaccurate        clocks,     concluding

"Foster's story is simply not credible."                       He found all of the

leveled charges were proved because Foster

              simply left at 2:20 [a.m.] to resume his
              patrol, that he needed to cover the half-hour
              of time after the Information Officer returned
              from dinner, that he did not patrol [his
              assigned sector] for anywhere near a half-
              hour, if he did so at all before [presumably
              going to a known location on "normal patrol"],
              and that his entry on the log was knowingly
              false and intended to deceive.


These findings, influenced by the ALJ's credibility assessment,

are supported by the record and are entitled to our deference.

      So too, we conclude Foster's termination was proper. Foster's

contention that the sanction violates the principle of progressive

discipline      is    based    on   the    premise        that    his      mistake      was

inadvertent, he lacked a prior disciplinary history, he received

commendations and an award, and other officers were not terminated

for the "same offense."

      As established, Foster's actions were deliberate.                           And the

ALJ   found    he     "had    previously       received    a     number      of   written

reprimands,      as    detailed     in    the    [s]tipulation          of   his     prior

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disciplinary record," including one for willfully making a false

report, as well as a thirty-day suspension for conduct unbecoming

and neglect of duty.

       The ALJ did not simply adopt the departmental regulation2 that

provides that "[r]epeated violations of the rules and regulations,

policies, procedures, directives or orders" are "indicative of an

employee's disregard of the obligations of all employees and shall

be cause for dismissal . . . regardless of the severity of the

offense."     Instead, he concluded that termination was warranted

because the higher standard to which police officers are held, see

Twp. of Moorestown v. Armstrong, 
89 N.J. Super. 560, 566 (App.

Div. 1965), included honestly reporting police activities.            In his

discussion    of   Capt.    Connor's   testimony,   the   ALJ   noted,    "The

integrity     of   police    documentation    of    activities    'must     be

untainted' and the failure to assure accuracy violates the public

trust."     And as Chief Coffey testified, the logs required by the

department are used to list an officer's activities and "hold

officers     accountable[;     t]hey   are   therefore    expected   to     be

accurate."     The importance of the logs' accuracy was tied to the

department's goal in assigning officers to specified township




2
    Pennsauken Police Department, § 4.1.6 (2012).

                                       6                             A-1826-16T3
sectors in order to, as the Chief explained, maintain "appropriate

response time[s] and accountability for incidents."

     The ALJ's meted penalty was not arbitrary, capricious or

unreasonable.    See Stallworth, 
208 N.J. at 194.   We see no error

in his decision.

     We determine the balance of Foster's arguments to be without

sufficient merit to warrant discussion in a written opinion.       R.

2:11-3(e)(1)(E).

     Affirmed.




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