IN THE MATTER OF ANGELO ANDRIANI CITY OF HOBOKEN DEPARTMENT OF PUBLIC SAFETY
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APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3111-14T4
IN THE MATTER OF
ANGELO ANDRIANI,
CITY OF HOBOKEN,
DEPARTMENT OF PUBLIC SAFETY.
______________________________
Argued November 27, 2017 – Decided February 9, 2018
Before Judges Ostrer and Whipple.
On appeal from the New Jersey Civil Service
Commission, Docket No. 2011-1054.
Gerald D. Miller argued the cause for
appellant Angelo Andriani (Miller, Meyerson &
Corbo, attorneys; Gerald D. Miller, of counsel
and on the briefs).
Paul Condon argued the cause for respondent
City of Hoboken (Law Offices of Condon &
Theurer, attorneys; Paul Condon, on the
brief).
Christopher S. Porrino, Attorney General,
attorney for respondent New Jersey Civil
Service Commission (Valentina M. DiPippo,
Deputy Attorney General, on the statement in
lieu of brief).
PER CURIAM
Appellant Angelo Andriani challenges the February 4, 2015
final administrative decision of the Civil Service Commission
(Commission) terminating his employment as a police officer with
the Hoboken Police Department (HPD). We affirm.
We discern the following relevant facts from the record.1
Appellant became a HPD officer in August 1984. In the early 2000s,
appellant was a sergeant and also served as the weapons instructor
and commander of the elite SWAT team at the HPD.
In response to the devastation caused by Hurricane Katrina,
Hoboken passed a resolution adopting the City of Kenner, Louisiana,
as a Sister City, to provide support and relief after Hurricane
Katrina. Hoboken collected various donations from its residents
and delivered those donations to Kenner. The HPD SWAT team was
assigned to escort the donation truck. Appellant, along with
other members of the team, including Chief of Police Carmen
LaBruno, traveled to Kenner.
In 2005, while in Kenner, appellant and other HPD envoys
attended a dinner party at a private residence. During the dinner
1
The record contains a litany of charges leveled against
appellant, listing twenty-one incidents occurring both in
Louisiana and New Jersey. Because the Commission and the
Administrative Law Judge determined most of those charges were not
proven by a preponderance of evidence, we do not repeat them here.
Instead, we focus on the charges deemed proven, which resulted in
appellant's termination.
2 A-3111-14T4
party, appellant took out his service weapon, unloaded the bullets,
and handed the weapon to the female host.
A year later, in 2006, the HPD was invited back to Kenner to
provide additional police resources during Mardi Gras. The HPD
accepted the invitation and assigned the SWAT team to return. They
utilized the SWAT bus and rented two other vehicles for the drive
to Kenner. The trip lasted five or six days.
During the trip, appellant was at a restaurant with the SWAT
team members, a Kenner councilwoman, and two other Kenner
representatives. At one point during dinner, appellant placed a
napkin against his head, imitating a Ku Klux Klan makeshift hood,
and uttered some words under it, which the testifying witness
could not hear. The Kenner councilwoman and other representatives
were upset by appellant and reprimanded him.
On their way back to Hoboken, appellant and other members of
the SWAT team stopped at a Hooters restaurant to eat. While there,
Hooters employees posed for pictures with the SWAT team members,
who were in police uniforms. Some SWAT team members retrieved
their weapons from the vehicles and handed them over to female
Hooters employees, who then posed for pictures with the weapons
inside the restaurant and in front of the SWAT bus.
In October 2007, HPD Officer Timothy McCourt received a
package consisting of documents and tape recordings related to
3 A-3111-14T4
numerous complaints against appellant. McCourt contacted Chief
LaBruno and recommended the package be forwarded to the Hudson
County Prosecutor's Office. Pending the investigation, appellant
was prohibited from using the firing range, and SWAT team
operations were suspended.
After requesting additional documents to review and
interviewing various HPD officers, the Hudson County Prosecutor's
Office returned the case to the City of Hoboken for administrative
review. According to a letter issued by the Hudson County
Prosecutor's Office, the investigation into appellant's alleged
misconduct was terminated effective January 14, 2008. On January
22, 2008, appellant was reassigned to the Homeland Security team
and was instructed to work out of the Inspectional Services Bureau.
On February 8, 2008, appellant was served with a Preliminary
Notice of Disciplinary Action from the Hoboken Department of Public
Safety Director's Office (Director's Office). In that notice, the
Director's Office charged appellant, under N.J.A.C. 4A:2-2.3(a),
with: incompetency, inefficiency or failure to perform duties;
insubordination; conduct unbecoming a public employee; neglect of
duty; and other sufficient cause. He was also charged with eight
violations of police departmental rules and regulation, including:
standards of conduct; neglect of duty; performance of duty;
reporting violations of law, ordinances, rules or orders; use of
4 A-3111-14T4
derogatory terms; conduct towards the public; impartial attitude;
and truthfulness. Appellant was also accused of surrendering his
weapon to another individual other than a law enforcement officer,
in violation of regulations pertaining to firearms.
After a series of departmental hearings, the Commission
served appellant with a Final Notice of Disciplinary Action on
August 24, 2010. In that notice, the Commission sustained four
of the charges under N.J.A.C. 4A:2-2.3(a), including:
incompetency, inefficiency or failure to perform duties; conduct
unbecoming a public employee; neglect of duty; and other sufficient
cause. Accordingly, appellant was removed from his position as a
police officer effective February 28, 2008.
Appellant appealed the Commission's decision to the Office
of Administrative Law and an Administrative Law Judge (ALJ)
conducted hearings on the matter between August 2011 and May 2013.
After hearing testimony from thirteen individuals, including
appellant, on October 3, 2014, the ALJ rendered an initial
decision, addressing each charge and making credibility findings
about each witness. The ALJ rejected numerous charges as
unsupported by the evidence. However, the ALJ found appellant had
failed to perform the duties of a police officer and engaged in
conduct unbecoming a public employee for his participation in the
Hooters incident as well as the napkin incident and recommended
5 A-3111-14T4
appellant be removed effective February 28, 2008. The ALJ
concluded appellant's behavior as "memorialized in numerous
photographs, is so egregious, that it warrants removal."
Appellant timely filed an exception to the ALJ's
recommendation on November 13, 2014, and Hoboken filed its
exception shortly thereafter. On February 4, 2015, the Commission
conducted a de novo review of the record and issued its final
administrative decision, finding the action in removing appellant
was justified, affirming the ALJ's decision, and dismissing
appellant's appeal. The Commission agreed with the ALJ's
determination that the majority of the charges were unproven. It,
however, did not agree with the ALJ's dismissal of the allegation
and corresponding charges regarding the improper handling of
appellant's firearm at the Kenner dinner party and included it as
a basis for removal.
This appeal followed. On appeal, appellant argues the charges
were untimely because they were not filed within forty-five days
of the alleged incidents, and the inaction of the previous HPD
Chief and Director estopped any future Chief and Director from
instituting disciplinary actions. He also argues he was treated
differently than others who attended the 2005 and 2006 Louisiana
trips and termination was an inappropriate form of discipline.
6 A-3111-14T4
I.
Our review of a final agency decision is limited, and we "do
not ordinarily overturn such a decision 'in the absence of a
showing that it was arbitrary, capricious or unreasonable, or that
it lacked fair support in the evidence.'" In re Carter,
191 N.J.
474, 482 (2007) (quoting Campbell v. Dep't of Civil Serv.,
39 N.J.
556, 562 (1963)). Moreover, we may not substitute our judgment
for that of the agency's when "substantial credible evidence
supports [the] agency's conclusion . . . ." Greenwood v. State
Police Training Ctr.,
127 N.J. 500, 513 (1992) (citations omitted).
Deference to agency decisions applies to the review of
disciplinary sanctions. In re Herrmann,
192 N.J. 19, 28 (2007).
"In light of the deference owed to such determinations, when
reviewing administrative sanctions, 'the test . . . is whether
such punishment is so disproportionate to the offense, in light
of all the circumstances, as to be shocking to one's sense of
fairness.'" Id. at 28-29 (quoting In re Polk,
90 N.J. 550, 578
(1982)) (alteration in original). "The threshold of 'shocking'
the court's sense of fairness is a difficult one, not met whenever
the court would have reached a different result." Id. at 29.
Accordingly, we modify a sanction only "when necessary to bring
the agency's action into conformity with its delegated authority."
7 A-3111-14T
4 Id. at 28 (quoting Polk,
90 N.J. at 578). Moreover, we will affirm
a sanction that is not illegal or unreasonable. Ibid.
II.
Appellant asserts the failure of the HPD to file the
disciplinary charges within forty-give days of the alleged
incidents warrants the dismissal of the current charges. We
disagree. 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 [forty-fifth] 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 [forty-five]-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 [forty-
five]-day limit shall begin on the day after
the disposition of the criminal investigation.
[emphasis added.]
Although all of the charged incidents occurred in either 2005
or 2006, and the preliminary notice of disciplinary action was not
issued until February 28, 2008, the statutory forty-five-day rule
was not violated.
N.J.S.A. 40A:14-147 allows for a tolling of the
forty-five-day rule in the event of a criminal investigation.
8 A-3111-14T4
The statutory time clock began running once McCourt received
the package detailing the allegations against appellant, providing
"sufficient information" to file the complaint. The complaints
were first referred to the Hudson County Prosecutor's Office in
2007 to investigate appellant's alleged misconducts, tolling the
forty-five day deadline.
After requesting additional documents for review and
interviewing various HPD officers, the Hudson County Prosecutor's
Office returned the case to Hoboken for administrative review
sometime between December 2007 and January 2008 and terminated its
criminal investigation effective January 14, 2008. The
preliminary notice of disciplinary action was issued on February
28, 2008, forty-five days after January 14, 2008, and was thus,
timely.
III.
Appellant next argues because the Director and Chief LaBruno
knew about his behavior in 2005 and 2006, but did not discipline
him, the subsequent HPD Chief and Director2 are estopped from
taking a different position two years later. This argument lacks
merit.
2
The same HPD Chief, Carmen LaBruno, remained in the office
during the time of the incidents and when appellant was subject
to investigations and discipline. The Director, on the other
hand, changed from Mayor David Roberts to William Bergin.
9 A-3111-14T4
Equitable estoppel is
the effect of the voluntary conduct of a party
whereby he is absolutely precluded, both at
law and in equity, from asserting rights which
might have otherwise existed . . . as against
another person, who has in good faith relied
upon such conduct, and has been led thereby
to change his position for the worse.
[Segal v. Lynch,
211 N.J. 230, 254 (2012)
(quoting Carlsen v. Masters, Mates & Pilots
Pension Plan Trust,
80 N.J. 334, 339 (1979))
(alterations in original).]
"Although rarely invoked against public entities, . . . it may be
applied against them to prevent manifest injustice." State, Dep't
of Environmental Protection and Energy v. Dopp,
268 N.J. Super.
165, 176 (App. Div. 1993). "Equitable estoppel does not require
a definite promise, but may be invoked when there is 'conduct,
either express or implied, which reasonably misleads another to
his prejudice so that a repudiation of such conduct would be unjust
in the eyes of the law.'" Segal,
211 N.J. at 254 (quoting McDade
v. Siazon,
208 N.J. 463, 480 (2011)).
Appellant and Hoboken agree the incidents that gave rise to
the disciplinary actions occurred in 2005 and 2006, and Chief
LaBruno was present during the 2005 trip to Louisiana. Complaints
against appellant were referred to McCourt in October 2007, who
informed the chief of the complaints. Chief LaBruno then contacted
the Hudson County Prosecutor's Office, removed appellant from the
10 A-3111-14T4
firing range, and suspended SWAT team operations. Further, in
2008, it was the chief who signed an order reassigning appellant
to a different unit. As such, the same individual, who witnessed
some of appellant's conduct, instituted the subsequent
disciplinary actions and engaged in no conduct that could have
reasonably misled appellant.
Moreover, even if appellant relied on Chief LaBruno's and the
Director's actions as an implicit communication that he was in the
clear, he suffered no detriment. Appellant continued to render
services as a police lieutenant, and he was justly compensated for
his service until his removal.
IV.
Appellant argues because he was the only police officer
disciplined as a result of the 2006 Hooters incident, he was
subject to disparate treatment. "Disparate treatment is
demonstrated when a member of 'a protected group is shown to have
been singled out and treated less favorably than others similarly
situated on the basis of an impermissible criterion' under the
antidiscrimination laws." Mandel v. UBS/PaineWebber, Inc.,
373 N.J. Super. 55, 74 (App. Div. 2004) (quoting EEOC v. Metal Serv.
Co.,
892 F.2d 341, 347 (3d Cir. 1990)). A party only needs to
demonstrate that "it is more likely than not that the employer's
actions were based on unlawful considerations" in order to carry
11 A-3111-14T4
his or her burden of showing a prima facie case. Id. at 75
(quoting Dixon v. Rutgers,
110 N.J. 432, 443 (1988)).
Here, appellant did not present sufficient evidence to
establish a prima facie case of disparate treatment because he did
not demonstrate he was singled out because of his membership in a
protected group.
We also recognize a more general obligation of public
employers to assure "fairness and generally proportionate
discipline imposed for similar offenses . . . ." In re Stallworth,
208 N.J. 182, 192 (2011). "[T]he responsibility . . . to assure
such fairness and responsibility" resides in one agency, the Civil
Service Commission. Ibid. Fairness must take into account not
only the nature of the offense, but also the position of the
offender.
As the ALJ and the Commission both stated, appellant was
disciplined for the Hooters incident because he was the most senior
ranking officer traveling on that trip. As such, it was his duty
to ensure all of the other officers conduct themselves
appropriately, and he failed to do so.
V.
Lastly, appellant argues even if the Commission properly
determined he violated statutes and regulations, he should have
received progressive discipline, not termination.
12 A-3111-14T4
Progressive discipline is not "'a fixed and immutable rule
to be followed without question' because 'some disciplinary
infractions are so serious that removal is appropriate
notwithstanding a largely unblemished prior record.'" Stallworth,
208 N.J. at 196 (quoting Carter,
191 N.J. at 484). Further,
progressive discipline can be used in two ways: (1) "the imposition
of a more severe penalty for a public employee who engages in
habitual misconduct"; and (2) "to mitigate the penalty for a
current offense where . . . an employee has little or no record
of misconduct." In re Restrepo, Dep't of Corr.,
449 N.J. Super.
409, 424 (App. Div.), certif. denied,
230 N.J. 574 (2017) (quoting
Herrmann,
192 N.J. at 30).
Here, although appellant had no prior disciplinary record,
we agree that his behavior, which involved handing his service
weapon to a civilian, allowing other police officers to do the
same in a public place, and mimicking an offensive, racist symbol
in a public place, which was "memorialized in numerous photographs,
is so egregious, it warrants removal." The Commission carefully
evaluated the decision and agreed with the ALJ, noting a municipal
police officer is a special kind of public employee who "represents
law and order to the citizenry and must present an image of
personal integrity and dependability."
13 A-3111-14T4
In light of the record, and the deferential review standard
applied to administrative sanctions, terminating appellant's
employment was not disproportionate to the offenses, is not illegal
or unreasonable, and does not rise to the level of shocking the
court's sense of fairness.
Affirmed.
14 A-3111-14T4
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