The opinion of the court was delivered by: Baime, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Baime and Carchman.
On appeal from Superior Court of New Jersey, Law Division, Mercer County.
This appeal is from the Law Division's order directing Hamilton Township to remove from its personnel files all references to plaintiff's disputed disciplinary infraction, but denying his request to be reimbursed for the full amount of attorneys fees he expended in defending against the charge. The judge awarded counsel fees in the amount of $2,000 on the condition that plaintiff execute a written release absolving the Township of any further liability. We sustain the result reached but for reasons other than those articulated by the Law Division judge.
This case has a tortuous procedural history. Despite the meandering course this case has taken, we recount only those facts essential to our disposition of the issues presented.
The event that precipitated this dispute was a neighborhood crime watch meeting that took place on September 2, 1992. Plaintiff, a highly ranked police captain, attended that meeting as part of his official duties. While the facts are hotly contested, it is apparent that there was a heated confrontation between plaintiff and several of the community members who attended the meeting. Numerous complaints by citizens who witnessed the events described plaintiff's behavior as "obnoxious, disrespectful [and] rude." Following an investigation, plaintiff was charged with violating the Hamilton Township Police Code. Three separate charges were advanced: untruthfulness, insubordination, and discourteous conduct toward the public.
On February 3, 1993, the Township Business Administrator found plaintiff guilty of insubordination and acting discourteously, but acquitted him of being untruthful. The sanction imposed was six days suspension without pay. In December 1994, plaintiff retired from the police force without ever serving the six day suspension.
Plaintiff nevertheless appealed his suspension to the Merit System Board. The matter was transferred to the Office of Administrative Law as a contested case. The administrative law judge (ALJ) dismissed the charge of insubordination, but found plaintiff guilty of acting discourteously to the public. The ALJ's determination was based on the following facts.
Plaintiff was scheduled to attend a neighborhood crime watch meeting. The meeting began at 8:00 p.m. and was attended by numerous citizens. Plaintiff arrived at 8:25 p.m. Instead of taking his place in front of the room with Patrolman Ronald Cream, who was chairing the meeting, plaintiff remained in the rear. Perturbed by plaintiff's tardiness, Harley Parker, the co- zone commander of the combined crime watch communities, gestured by tapping on his watch with his index finger. The record indicates that when invited to the front of the room, plaintiff replied, "I'll come up when I'm ready," or words of that import. Patrolman Cream introduced plaintiff to the audience. Plaintiff apparently offered an explanation for his lateness. What transpired thereafter is in dispute.
Harley Parker and Kathryn DeFina testified that plaintiff appeared hostile and argumentative, answering questions in a highly negative manner. They asserted that plaintiff's confrontational style caused many members of the public to leave the meeting prematurely.
Patrolman Cream's testimony substantially corroborated that of Parker and DeFina. He asserted that the comments of the citizens who attended the meeting were not out of the ordinary, but that plaintiff's behavior was inappropriate. According to Cream, the meeting deteriorated as a result of plaintiff's confrontational attitude.
Plaintiff's version of the incident was markedly different. He characterized Parker's conduct as "uncouth" and "rude." Plaintiff also claimed that members of the public "constantly interrupt[ed]" him in his presentation and acted in a hostile manner. While conceding that many of those in attendance left the meeting prematurely, plaintiff claimed that they were disappointed because he did not "allow them the continued pleasure of seeing a fellow 'citizen' get away with telling off a police officer with little fear of reprisal . . . ."
Irene Freeman and Andrew Wargo supported plaintiff's description of the meeting. They claimed that the public acted like a "lynch mob" because plaintiff arrived late at the meeting. While conceding that plaintiff was "a little bit loud" in his responses, Freeman ...