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Cosme v. Borough of East Newark Tp. Committee

September 5, 1997

JUAN A. COSME, PLAINTIFF-RESPONDENT,
v.
BOROUGH OF EAST NEWARK TOWNSHIP COMMITTEE, EAST NEWARK POLICE DEPARTMENT, AND KENNETH J. LINDSAY, DEFENDANTS-APPELLANTS.



On appeal from the Superior Court of New Jersey, Law Division, Civil Part, Hudson County.

Approved for Publication September 8, 1997.

Before Judges Havey *fn1, Kestin and Eichen. The opinion of the court was delivered by Kestin, J.A.D.

The opinion of the court was delivered by: Kestin

The opinion of the court was delivered by

KESTIN, J.A.D.

Plaintiff, a member of the East Newark Police Department (Department), sought judicial review in the Law Division, pursuant to N.J.S.A. 40A:14-150, of his dismissal from his position as a police officer with the rank of patrolman. The Law Division Judge, after a trial de novo on the record with additional testimony, adopted in full the findings which had been made by the departmental hearing officer. He also ruled, as the hearing officer had, that plaintiff should forfeit his pay for the period of an unauthorized absence. The trial Judge determined, however, that the penalty of dismissal recommended by the hearing officer and effected by the Department was too harsh. He ordered, instead, a suspension for one year. Defendants' motion for reconsideration of that aspect of the penalty was denied and they appeal.

The Borough of East Newark (Borough) has not adopted the Civil Service Act, N.J.S.A. 11A:1-1 to :12-6. Consequently, discipline of police officers in that municipality is governed by N.J.S.A. 40A:14-147 to -151.

I

On March 17, 1995, defendant Chief of Police Kenneth Lindsay (Chief) filed departmental disciplinary charges against plaintiff alleging eight violations of the Borough's ordinances stemming from an unauthorized absence from duty. The charges were:

. willful disobedience of orders;

. absence without leave;

. incompetency;

. neglect of duty;

. conduct subversive of the good order and discipline of the Police Department;

. failure to promptly obey rules, regulations, instructions and orders;

. failure to devote time and energy to police business by putting private interests ahead of police duties;

. failure to perform such tours of duty as may be prescribed by the Chief of Police.

The "recommended penalty" was dismissal from the Department and forfeiture of pay for the days of plaintiff's absence: March 10, 11, 12, 15, 16, 17 and 18, 1995. The charges contained a notice of immediate suspension from duty without pay. Notice of a hearing date was also included, as required by statute. N.J.S.A. 40A:14-147.

The evidence at the hearing was consistent with the charged specifications. Plaintiff had been a member of the Department since 1985. It was a small police force comprised of six officers: the chief, two captains, and three patrolmen including plaintiff. On January 16, 1995, plaintiff submitted a written request for seven vacation days: March 10, 11, 12, 15, 16, 17, and 18. The request was approved on January 17.

The applicable collective negotiations agreement left the scheduling of vacations to the employer. Accordingly, plaintiff's request was on a standard form which contained the following language: "I fully understand that all vacation requests are subject to approval and meets a proper scheduling of manpower, so the protection of our community remains our prime concern [sic]." On January 18, plaintiff was injured while on duty and was out on medical leave for six weeks. Upon plaintiff's return on March 6, Chief Lindsay informed him that his vacation had been cancelled because of personnel considerations. Plaintiff's medical leave and the overlapping medical leave of another officer had required the remaining members of the department to schedule excessive overtime. In order to regularize the situation, both officers' previously approved vacations, as well as the Chief's own planned vacation, were cancelled.

Plaintiff had prepaid for a seven- or eight-day vacation in Cancun, Mexico. He objected to the cancellation and threatened both to file a grievance and to litigate the matter. Without rescinding the cancellation order, the Chief told plaintiff that he would discuss the issue and plaintiff's reaction with the Borough's Police Committee at its meeting on March 8, and would inform plaintiff of the Committee's action during his scheduled day shift on March 9. At the March 8 meeting, the Police Committee supported the Chief's decision.

Plaintiff did not report for duty on March 9 and made no effort to communicate with the Chief to learn of the Committee's decision. Chief Lindsay made a number of attempts to communicate with plaintiff, all of which were unavailing because plaintiff could not be found.

At about 2:00 a.m. on March 9, plaintiff had called in to say that he was ill and would be unable to report for duty at 6:00 a.m., the time he was scheduled to begin his shift. When Chief Lindsay arrived at Department headquarters that morning, he was advised of plaintiff's call. He sent an officer to plaintiff's home twice within the ensuing four-hour period to advise plaintiff that the decision concerning cancellation of vacations remained unchanged. Plaintiff was not home, and no one answered telephone calls made to his home. The efforts of other officers to communicate with or locate plaintiff later that day and on subsequent days were also unsuccessful.

Plaintiff could not be reached because he was in his parents' home, a dwelling attached to his own by a common garage. At the departmental hearing, plaintiff testified that after calling in sick at about 2:00 a.m. on March 9, he went back to sleep and called his mother after he awoke at seven or eight o'clock to tell her that he was ill. He went to his parents' home, ate breakfast and went back to sleep there. Plaintiff's mother left for work at 2:00 p.m., and his sister-in-law drove him to the family doctor late in the afternoon. Although no physician's statement was required to verify his illness, plaintiff acquired a note handwritten on a prescription form: "The . . . patient was seen by me on 3/9/95 due to strep throat and was told to do bed rest for at least 10 days . . . taking the medication prescribed."

Plaintiff went on to testify that he did not "call work and book off sick for the 10 days pursuant to the doctor's note." He explained the circumstances surrounding his decision to leave on vacation:

A. Because I had too much money on the trip, I decided just to go.

Q. You already had -- you were already on vacation?

A. Yeah, I was on vacation; I'm not going to call out sick.

Q. So you didn't need to call out sick, you were already on vacation?

A. I was on vacation, I didn't need to.

Q. At any time prior to you going on vacation did you return home other than to get luggage and leave?

A. I never returned home, but my father did.

[He] picked up my luggage, put it in the car, and picked me up in front of his house.

Q. How did you get to the ...


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