On appeal from the Division of State Police.
Approved for Publication November 21, 1997.
Before Judges Brochin, 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
In a previous appeal, Docket No. A-4282-93, we remanded this matter "for reconsideration of the penalty after the parties have been afforded the opportunity to present evidence and argument relevant to the appropriate penalty for Jiras's misconduct." (Slip op. p. 9) Charges against Trooper Mark Jiras for an unprovoked assault upon a prisoner at a detention center, as conduct violative of the rules and regulations of the Division of State Police (Division), had been sustained after a hearing pursuant to the Administrative Procedure Act, N.J.S.A. 52:14B-9, -10, and his dismissal from the Division was ordered in a final decision by the head of the agency at the time, Lt. Col. Dominick C. Trocchia, Acting Superintendent.
The underlying facts of the matter were recited in our earlier, unpublished opinion. We will not rehearse them here. We remanded for reconsideration of the penalty, the only issue on appeal, because we discerned that the primary basis of the penalty was the Acting Superintendent's determination, adopting the Administrative Law Judge's view, "that Jiras's attitude at the hearing manifested a propensity for future misconduct." We held that Jiras had not had an adequate opportunity, consonant with principles of fundamental fairness, to address that question.
The remand hearing was conducted directly before the agency head, Col. Carl A. Williams, Superintendent. See N.J.S.A. 52:14F-8b. Evidence was presented relative to Jiras's service record with the Division. Also, three witnesses were offered on behalf of Jiras; each testified concerning Jiras's exemplary background as a trooper. Each further expressed the view that Jiras's conduct in the single incident which gave rise to the charges was disappointing, but essentially uncharacteristic of him.
In closing argument on Jiras's behalf, his attorney stressed the service record the trooper had compiled: excellent with only minor blemish. He argued that the single incident at issue was anomalous; and that Jiras was a committed, able, loyal trooper whose sixteen-year career with the Division commended him for continued service. The deputy attorney general presenting the charges argued that the single incident of unprovoked violence toward a prisoner was, in itself, a sufficiently grave departure from accepted standards of conduct to disqualify Jiras from continued service.
In concluding that termination from service was the appropriate penalty for the acknowledged infraction, the Superintendent specifically eschewed any reliance on eleven complaints that had been filed concerning Jiras over the course of his career, because nine of them had been determined to be unsubstantiated and the remaining two unfounded. The fact that Jiras had attended human relations training two months before the incident which gave rise to the charges was seen by the Superintendent as "not conclusive of Mr. Jiras's amenability for rehabilitation or suitability for service as a State Trooper but it is a factor to consider in assessing the appropriate penalty to be imposed, as is the fact that Mr. Jiras served the Division for more than four years following the . . . incident with only one other disciplinary infraction." Jiras's personal background, his service record generally, and the testimony of the supporting witnesses were also factors considered. The underlying incident itself was evaluated for such details as had been developed in the record and for the qualities of Jiras's conduct therein.
The Superintendent reached the following Conclusion:
The severity of Jiras's transgressions cannot be minimized. [The prisoner] had a right to be free from such an attack by someone entrusted with enforcing the law. While the attack may have caused [the prisoner] no significant physical injury, the injury to the integrity of the Division cannot be overstated. To command the respect of the citizenry, the Division must rid itself of those officers who would disgrace its ideals of honor, duty and fidelity. This incident, standing alone, warrants dismissal absent some explanation for its occurrence indicating that a less severe penalty ought to be considered. Given the opportunity, Mr. Jiras offered no explanation for his attack on [the prisoner]. We have an obligation to protect the public, whether it be from criminals on the streets or from police officers who abuse their solemn oath and position. The penalty is harsh, but so were the transgressions.
As the head of the Division the ultimate responsibility for maintaining discipline among State Police Officers falls to me. As the Supreme Court observed in Matter of Carberry, 114 N.J. 574, 556 A.2d 314 (1989):
The weight of that responsibility becomes apparent on considering that state troopers are authorized to carry firearms, . . . to use deadly force under justifiable circumstances, . . . and to enforce law and order ...