Before Judges King, Coburn and Axelrad.
The opinion of the court was delivered by: Coburn, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 25, 2000
On appeal from a Final Administrative Decision of the Merit System Board.
The City of Camden dismissed Police Officer Kevin Hall for conduct unbecoming an employee in the public service. On his appeal, the Merit System Board found that Hall had engaged in criminal behavior which it concluded was misconduct in office and a breach of the public trust. Nonetheless, instead of affirming the dismissal, the Board found that the appointing authority's action in removing Hall was not justified and, instead, imposed a fifteen-day suspension. Camden appeals, contending that the Board's action was arbitrary and capricious. We agree and therefore reverse and remand for entry of an order dismissing Hall from the Camden Police Department. We reverse, as well, the Board's determination awarding Hall back pay and benefits.
The now undisputed facts show that on May 18, 1995, a Camden police sergeant stopped an unlicenced driver operating an unregistered and uninsured motor vehicle bearing fictitious plates. The sergeant decided to impound the vehicle and ordered Hall to the scene with instructions to wait for a tow truck that would take the vehicle to a private lot operated under contract with Camden. Shortly after the vehicle was removed, Hall, who was then off duty, drove to the lot. Still wearing his uniform trousers, with his service revolver tucked into his front waistband and visible, Hall spoke to two employees at the lot and offered them $50 each for portions of the vehicle's stereo system. When he met with resistance, Hall said that in a couple of weeks he would "stop somebody else again" and "get what [he] want[s]." One of the employees told Hall that he could take the equipment if he agreed to sign a receipt for the property and change the police report so that it indicated that the equipment was not in the vehicle. Hall refused and left.
The Board found that Hall knew "that the vehicle was still the property of its registered owner and not the property of the impound lot. Yet, he attempted to negotiate a sale of vehicle parts, not with the registered owner, but with employees of the lot where the vehicle was placed for safekeeping." The Board also found that Hall wore his uniform pants and displayed his service revolver "as a clear attempt to intimidate the employees at the lot who may not have so readily agreed to 'sell' the equipment to an unarmed private citizen without police powers." The Board added that it was "appalled . . . [at the suggestion] that [Hall's] attempt to 'purchase' the stereo equipment . . . was not, in effect, a bribe or an attempt to steal."
Turning to the issue of punishment, the Board found that Hall had been a police officer for four and one-half years during which time he had amassed a record of "numerous minor and two major disciplines, including a fine equivalent to 10-days' pay for neglect of duty and a fine equivalent to 30 days' pay for violations of Department regulations for the handling of evidence, personal effects and other property taken into custody." There were seven adjudications of discipline between May 20, 1992, and February 23, 1995, the last being for a charge of chronic and excessive absenteeism. The Board noted that, on the other hand, Hall had received numerous commendations during his service as a police officer. Those commendations included "risking his life . . . [by] enter[ing] a burning building to rescue an 18-month old child . . ., and . . . stopping a car implicated in a drive-by shooting, which resulted in the arrest of two individuals charged with murder."
The Board said that it recognized that Hall's "conduct is unacceptable and constitutes conduct unbecoming a public employee . . . ." But based on the theory of "progressive discipline," the Board concluded that a fifteen-day suspension would suffice and would "serve as a warning to [Hall] that future offenses may result in more severe disciplinary action."
We begin our analysis with the recognition that "[c]courts have a limited role in reviewing a decision of an administrative agency." Henry v. Rahway State Prison, 81 N.J. 571, 579 (1980). Reversal is only appropriate if the decision is "arbitrary, capricious or unreasonable or it is not supported by substantial credible evidence in the record as a whole." Id. at 580 (citing Campbell v. Department of Civil Serv., 39 N.J. 556, 562 (1963)). If a penalty imposed by an agency is found to be arbitrary, the court may "finally determine the matter by fixing the appropriate penalty or remand it to the [agency] for redetermination." Henry, 81 N.J. at 580.
In the circumstances of this case, those principles dictate reversal of the reduction in punishment imposed by the Board and reinstatement of the dismissal ordered by Camden because the Board did not give sufficient weight to the seriousness of the offense committed by Hall or to his history of numerous disciplines, and because the Board's application of the ...