On appeal from the Merit System Board, CSV-11533-98.
The opinion of the court was delivered by: Eichen, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 2, 2001
Before Judges Eichen and Lintner.
This is an appeal from a final decision of the Merit System Board removing Horace Watson from his position as a police officer in the City of East Orange. The Board accepted and adopted the findings of fact and conclusions of the Administrative Law judge (ALJ) that removal of petitioner is warranted because he violated the terms of a Last Chance Agreement entered into with the East Orange Police Department. The Last Chance Agreement had its genesis in an off-duty incident that occurred on May 23, 1996 in which petitioner, while under the influence of alcohol, discharged rounds of ammunition from his service revolver. Some of the rounds were directed toward a residence on the Upsala College campus. As a result of this incident, petitioner was issued a Preliminary Notice of Disciplinary Action charging him with insubordination, conduct unbecoming, neglect of duty and failure to perform duties, among other charges.
The record reflects that petitioner had a history of alcohol abuse. *fn1 After acknowledging that petitioner had an alcohol abuse problem, petitioner's attorney proposed an agreement which would permit appellant to seek professional assistance for the problem in lieu of proceeding with the disciplinary proceeding. The East Orange Police Department (EOPD) agreed to "afford [petitioner] a final opportunity to comply with the Rules and Regulations of the EOPD and to assist him in recovering from substance abuse." Accordingly, the Last Chance Agreement was prepared and, on December 17, 1996, was signed by the parties. The agreement provided, in relevant part, as follows:
WHEREAS, Horace Watson, was hired by the East Orange Police Department (hereinafter "EOPD"), as a police officer on February 4, 1991; and WHEREAS, Horace Watson, has admitted that his use of alcohol has impeded his ability to perform the duties of a patrol officer and that his continued use of alcohol poses a threat to himself and to others; and WHEREAS, Horace Watson, has agreed that, in lieu of termination, his return to work and his continued employment by EOPD is subject to the provisions of this Last Chance Agreement; and WHEREAS, EOPD has agreed to offer this Last Chance Agreement to Horace Watson to afford him a final opportunity to comply with the Rules and Regulations of the EOPD and to assist him in recovering from substance abuse.
NOW, THEREFORE, IT IS AGREED AS FOLLOWS: 1. Horace Watson agrees to a ninety (90) day suspension.
2. During said ninety (90) day suspension, Horace Watson will enroll in an approved program for alcohol recovery.
3. EOPD will permit Horace Watson to return to work when each of the following conditions has been met:
A. Horace Watson will enroll in an in- patient program for alcohol recovery. The in-patient program selected will be mutually acceptable to EOPD and to Horace Watson.
B. Horace Watson will satisfactorily complete the in-patient program....
C. Following his release from the in patient program, Horace Watson will be counseled by a licensed substance abuse counselor. The substance abuse counselor will be mutually acceptable to EOPD and to Horace Watson. The counselor ...