Before Judges Baime and Wallace, Jr. and Lintner.
The opinion of the court was delivered by: Wallace, Jr., J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
On appeal from the New Jersey Department of Personnel.
Following a department hearing, William Carroll was found guilty of acts of alleged wrongful conduct resulting in termination. On appeal, the Administrative Law Judge (ALJ) recommended dismissal of all charges and reinstatement. The Merit Systems Board (Board) accepted the recommendation of the ALJ and ordered reinstatement. This appeal followed. We affirm.
Carroll was employed with the Morris County Sheriff's Office for thirteen years. On December 4, 1997, Carroll was asked to be interviewed by Detectives Richard Rose and Anthony Calamito of the Morris County Prosecutor's Office. The stated purpose of the interview was to question Carroll concerning the prosecutor's investigation of allegations that garbage from the Sheriff's Office was emptied improperly by Morris County Buildings and Grounds employees. Carroll was instructed that the interview was voluntary, he could stop answering questions, and he was free to leave at any time. During the interview, Carroll revealed that during a morning inspection the week before, officer John Cicchetti said he knew someone who had buried the chemical Agent Orange behind the Morris County Police Academy. There were about seven or eight other officers in the room at the time. Carroll recalled another officer stating that Cicchetti knew where the Agent Orange was buried because his cousin was the person responsible for burying the Agent Orange.
At some point, Carroll was asked if he had heard of such an incident prior to that morning inspection. Carroll replied that he was "not comfortable" about answering that question, and that he would like to talk to a lawyer. A short while later, Carroll again expressed discomfort about answering whether he remembered whom he had talked to about the incident. Carroll said he wanted to ask an attorney a couple of questions. Carroll answered all of the other questions posed by the investigators. At the conclusion of the interview, Carroll said his answers were voluntarily given and that he had been treated fairly. Further, the investigators informed Carroll that any falsehoods may subject him to penalties. The interview was concluded without a scheduled follow-up session.
The next day Carroll met with attorney Michael Rubbinaccio, who represented Carroll in another matter. Carroll related to Rubbinaccio the substance of his interview with the investigator. Rubbinaccio indicated that due to a conflict he could not advise Carroll with respect to the two unanswered questions. Rubbinaccio suggested that Carroll need not obtain other counsel unless the Prosecutor's Office contacted him for further questioning.
On December 15, 1997, without advance notice, the same two detectives requested Carroll to answer additional questions. Michael Lowe, an Internal Affairs (IA) Officer from the Sheriff's Office, was also present. The stated purpose of the meeting was to clarify some of Carroll's responses during the December 4 interview. Carroll said that he would like to have an attorney present. One of the detectives assured Carroll he was not in custody and not the target of the investigation, and free to leave "on the criminal side." When Carroll asked if he were free to leave on the administrative side, the interview was turned over to Lowe as an internal affairs investigation. Lowe told Carroll he had no right to refuse to answer or to demand counsel during the questioning on possible disciplinary matters. Carroll replied that he wanted to talk to an attorney. Lowe then informed Carroll that he was being offered immunity. Lowe stated:
You [have] been granted immunity from criminal prosecution in the event your answers to the narrow questions asked implicate you in a criminal offense. This immunity has been granted to you through the Prosecutor . . . John B. Dangler by the Attorneys [sic] General's Office on December 15, 1997. No answer given by you nor evidence derived from your answer may be used against you in a criminal proceeding. You must now answer questions specifically directed and narrowly related to the performance of your official duties and your fitness for office. If you refuse to answer you may be subject to disciplinary charges for refusal which can result in your dismissal from the Morris County Sheriff's Office. Anything that you say may be used against you in any in any subsequent disciplinary charges.
Lowe then showed Carroll a form explaining the grant of immunity and asked him to sign it. Carroll refused unless he could first talk to his attorney and reiterated his refusal to answer questions. The interview was concluded.
On December 17, 1997, Carroll was suspended and charged with:
1. On December 4, 1997, Sheriff's Officer William Carroll refused to answer questions asked by the Morris County Prosecutor's Office concerning information he possessed relevant to an ongoing criminal investigation of which he was not a target.
2. On December 15, 1997, Sheriff's Officer William Carroll refused to answer questions asked by the Morris County Prosecutor's Office concerning information he possessed relevant to an ongoing criminal investigation of which he was not a target.
3. On December 15, 1997, Sheriff's Officer William Carroll refused to answer questions by, and refused to render material and relevant statements to, competent authority in a department personnel investigation when so directed, which personnel investigation was narrowly and directly related to his performance of his official duties.
4. Between November 18, 1997 and December 5, 1997, Sheriff's Officer William Carroll was in possession of information concerning possible criminal activity, information of concern to the Sheriff's Office, and information regarding other officer's failure to comply with Department rules, but failed to report same promptly.
On January 6, 1998, prior to any disposition on the charges, Carroll voluntarily appeared with his attorney to answer the questions he had previously declined to answer. The same two detectives advised Carroll he was not the target of the garbage- dumping investigation and that he was free to leave at any time. They reminded Carroll that the prior grant of immunity was still in effect. Carroll and his attorney stated that Carroll had never refused to cooperate, but simply wanted to talk to an attorney before answering the questions. Carroll explained that he had felt intimidated and confused, and that his job might be in jeopardy. He had not brought counsel to the December 15 interview because he had no advance notice of it.
Carroll then responded to all of the questions asked by the investigators. He explained that after hearing Cicchetti's story about Agent Orange, he contacted John Fox, the Police Liaison on the Freeholder Board, to report what he heard. Carroll said that earlier in 1997, he told Fox about a rumor he heard about Agent Orange being buried behind the police academy. He said that Fox called him several times that year and asked if he could find out more information. Carroll told Fox about Cicchetti's remarks because Fox was an officer of the County and Carroll believed Fox would look into the matter. As far as Carroll knew, the allegation was an unsubstantiated rumor. Carroll further related that following the December 4, 1997 interview, he reported Cicchetti's comments to his sergeant in a memo.
Following a three-day departmental hearing, Carroll was found guilty of the charges. He was removed from his position on February 27, 1998. Carroll appealed his removal to the Board. The matter was referred to the Office of Administrative Law. A hearing was held on January 25, 1999, before an ALJ. After reviewing all of the testimonial and documentary evidence submitted, the ALJ concluded that the Sheriff's Office violated Carroll's right to consult with an attorney prior to questioning concerning an Internal Affairs investigation. The ALJ recognized that N.J.S.A. 40A:14-181, enacted as part of the Law Enforcement Protection Act in 1996, mandated all law enforcement agencies in this State to adopt and implement policies and procedures "consistent with" the guidelines set forth in the "Internal Affairs Policy and Procedures" manual promulgated on behalf of the Attorney General by the Division of Criminal Justice (AG Guidelines). The ALJ noted that AG Guideline 11-26*fn1 specified that while an officer being interviewed in an Internal Affairs investigation does not have a Sixth Amendment right to counsel, the officer has the right to "obtain" an attorney. The ALJ also found that Carroll did not refuse to answer the questions but clearly wanted to consult with counsel before responding. The ALJ concluded that the charges should be dismissed and ordered Carroll reinstated with back pay.
The Board adopted the findings and conclusions of the ALJ and rejected each of appellant's claims. With regard to appellant's claim that Carroll failed to report the information concerning possible criminal activity promptly, the Board found there "were a plethora of rumors being circulated about the Agent Orange" and accepted Carroll's interpretation that the statement of his fellow officer that his cousin ...