On appeal from a Final Decision of the Division of State Police, Docket No. 2002-958.
Before Judges Stern, A.A. Rodríguez and Lefelt.
The opinion of the court was delivered by: Lefelt, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
The Division of State Police suspended Trooper Bryce Maguire for fifteen days without pay because of his conduct during an off-duty road-rage incident that occurred on a residential street in Galloway Township. The State Police Superintendent imposed the suspension after accepting the recommendation of a hearing officer, who had conducted the disciplinary hearing. Maguire appealed, questioning the timeliness of the disciplinary action, the sufficiency of the evidence, and the penalty. In addition to the issues raised by Maguire, we requested the parties to brief the following additional issue: In view of N.J.S.A. 52:14F-8(b), under what authority can the Division of State Police utilize a hearing officer, instead of an administrative law judge (ALJ), to conduct a trooper disciplinary hearing and make a recommended decision to the Superintendent? After considering the parties' arguments, we conclude that the Division timely filed its charges against Maguire, but we reverse and remand for a new summary discipline hearing to be conducted by an ALJ assigned by the Office of Administrative Law (OAL).
In order to understand the procedural issues permeating this appeal, we first recount the relevant testimony that was presented at the disciplinary hearing followed by the key procedural points. On June 29, 2002, Trooper Maguire and Linda, his wife who was driving, and two children were riding in their Volkswagen Jetta on Magnolia Street in Galloway Township, on their way to a restaurant. Magnolia Street is a residential road with no dividing lane markings, no curbs or sidewalks, and a 25 m.p.h. speed limit. Behind the Maguire vehicle were Richard and Donna Kurtz and their two children in their new Nissan Maxima traveling to Atlantic City for dinner after enjoying a beach day in Brigantine.
Donna Kurtz, who was driving, observed the Jetta proceeding quite slowly, as if the Maguires were looking for an address. Donna believed the Jetta was going five or ten miles per hour. Linda Maguire observed the Nissan traveling behind quite fast for a residential street and very close to her vehicle. Linda testified"I'm doing thirty in a twenty-five and she's still trying to pass me, and the stop sign was coming up." When Donna tried to pass, Linda Maguire quickly moved left and blocked their passage. Donna had to immediately slow her vehicle to pull in behind the Maguires. At that point Donna believed the Maguires were crazy, and she became scared.
Donna testified the Jetta then stopped abruptly, though Linda claimed she pulled over just a few feet behind a stop sign. Trooper Maguire, who weighed about 245 lbs at the time, ran toward the Kurtzs, though the Trooper claimed he was not running but was"moving quickly" in"a tactical walk." Donna locked her car and windows and Richard got out of the Nissan to confront the Trooper who attempted to get between the two cars, which were close together. The Trooper claimed Donna moved the car forward forcing him to jump backwards onto his car and causing him to place his foot on the Nissan's hood. Richard Kurtz saw the trooper attempt to jump between the two cars, but land with one foot on the hood of the Nissan, causing a dent and scrape. Donna Kurtz testified that the Trooper leapt like a"gorilla" or"wild maniac" onto the hood of her car.
The Trooper or Linda Maguire, who had also exited her vehicle, screamed"what the fuck are you doing." Richard Kurtz yelled"All right, all right, she knows she was wrong, she'll back off, she'll back off" and"don't hurt us, don't hurt us." The Trooper testified that his wife stated"he's not going to hurt you, he's a... State Trooper." According to Richard Kurtz, Richard raised his left arm in defense and Trooper Maguire grabbed his arm. The Trooper denies touching anyone during the confrontation or using inappropriate language.
During the entire confrontation, the Trooper never displayed his badge, though he testified to displaying his identification card. The Trooper threatened to write some tickets, but did not record any names or addresses before leaving the scene. He did not ask the driver for a driver's license because he could see the Kurtzs"were agitated" and he"was on the upset side" but claimed not to be mad or angry. No punches were thrown, the confrontation defused, and both parties reentered their cars and drove off. The Trooper eventually recorded the Nissan's license plate number and Richard Kurtz recorded the Jetta's plate number. A short while later, Richard Kurtz called the State Police to report the incident, and the State Police began an investigation.
The Trooper did not report the incident immediately upon returning to work. He explained,"I didn't know that there was going to be an altercation type incident out of this: So, no, I didn't -- didn't make any notification, as far as, a special or anything." In ten years as a marine police officer and five as a road officer, the Trooper had never before had an incident like this and had never been the subject of any prior disciplinary action. No one had ever before accused the Trooper of road-rage or losing his temper.
The investigation continued through the summer and was completed on August 15th. A report was forwarded to the Superintendent on September 3, 2002. The Superintendent responded on September 11, indicating the level of discipline that would be appropriate. On September 17th, the charges and specifications were forwarded to the Office of State Police Affairs for review of legal sufficiency and the Office responded on September 26th. On October 1, 2002, at the direction of the Superintendent, the Division charged Trooper Maguire with violating the two following sections of the Division's Rules and Regulations: (1) Article IV, Section 3.b, providing that"[n]o member shall act or behave in an unofficial or private capacity to the personal discredit of the member or to the discredit of the Division;" and (2) Article V, Section 8, requiring troopers to communicate promptly through the chain of command"all crimes, breaches of the peace, suicides, attempted suicides, fires, accidents, complaints, misconduct, or other information of which the Division takes cognizance, that may come to the member's attention, during the performance of such member's duty." On October 7, 2002, the Division served these charges on Trooper Maguire.
Along with the charges, the Division also advised the Trooper that he would be subject to a summary disciplinary hearing, which according to the Division's Rules and Regulations, Article 1, Section 1(b), would subject the trooper to suspension"from duty with forfeiture of all pay and allowances ...