On appeal from Superior Court, Law Division, Cape May County.
Fritz and Deighan. The opinion of the court was delivered by Deighan, J.A.D.
Appellant Charles V. Wenderwicz, Jr. is a sergeant on the police department of the Borough of Avalon. He was suspended 45 days without pay on a departmental hearing. At a trial de novo in the court below, the trial judge upheld the findings of guilt but reduced the penalty to 15 days suspension without pay. At the time of the trial de novo, appellant had already served the 45-day suspension.
A departmental complaint in three counts of the Borough of Avalon police department charged appellant with violating the General Rules and Regulations of the Borough's police manual on September 16, 1982. The complaint charged that appellant, having been previously warned otherwise, remained at police headquarters to make a private telephone call. He was also charged with neglect of duty by not patrolling his post and conduct subversive to good order and discipline in the department
by causing his partner to loiter at headquarters while he made the telephone call.
A hearing was held before the Borough Administrator, Andrew Bednarek. At the hearing Lieutenant Louis E. Taylor, Jr. testified that on September 16, 1982 he saw appellant downstairs in the police station in the dispatcher's area at approximately five minutes to twelve o'clock midnight and at about one minute after twelve he noticed that the telephone line was lit, indicating that someone was using the phone. He suspected that it was appellant who usually makes phone calls when he first comes to work. Lt. Taylor watched the light until it went out at approximately 12:40. He then went downstairs and appellant and his partner, Officer Gambill, had just left. The dispatcher told Lt. Taylor that Officer Gambill was sitting with him while appellant was on the phone.
At the hearing Gambill testified that after appellant arrived at the station on the night in question, he spent a few minutes in the dispatcher's area and read some reports and then went towards the back of the police station. Gambill did not see appellant again until some time after 12:30. While appellant was in the squad room, Gambill stood in the lobby, talking with the dispatcher and watching television. When appellant returned Gambill and appellant left to patrol the community. There were no other patrol cars on duty that night. According to Gambill it was customary for officers on the midnight shift to leave for patrol around 12:30.
Lt. Taylor testified that appellant had been told that he would be permitted to make short calls while on his break at the police station, but that when his break was over he was to go back on patrol. Lt. Taylor said appellant admitted he had been on the telephone from midnight until 12:40 a.m. at the beginning of the shift on September 16, 1982.
Appellant was warned orally by Taylor on July 2, 1981 about making phone calls while on duty and a written copy of the warning was placed in his personnel file. Over appellant's
objection, evidence from his personnel file as well as prior warnings were introduced into evidence. Appellant's attorney was willing to admit that appellant had been warned about making lengthy telephone calls but objected to the introduction of a letter of warning. The administrator admitted the letter of July 2, 1981 into evidence to establish a record of a previous warning. A second letter dated March 28, 1979 from appellant's personnel file was produced. It warned appellant not to loiter at the homes of women while on duty. Again over objection again this was admitted into evidence to indicate that appellant had been previously warned about neglect of duty. He was found guilty of the charges and given a 45-day suspension.
He appealed to the Superior Court, Law Division. On a trial de novo, Judge Callinan found appellant guilty of the violations charged in the complaint but he also found that the penalty was excessive and accordingly reduced the suspension to 15 days. Judge Callinan held that evidence of warnings based on vague allegations and not resulting in formal charges or punishment was not admissible. Since the administrative hearing officer considered the prior acts in assessing the ...