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In re Carter

June 20, 2007

IN THE MATTER OF JOHN CARTER
JOHN CARTER, PETITIONER-RESPONDENT,
v.
TOWNSHIP OF BORDENTOWN, RESPONDENT-APPELLANT.



On certification to the Superior Court, Appellate Division.

SYLLABUS BY THE COURT

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

The issue in this appeal is whether the principle of progressive discipline should have been applied when sanctioning a police officer for sleeping on duty.

Bordentown Police Officer John Carter was served with disciplinary notices charging him with, among other things, sleeping on duty. Carter has been a police officer in Bordentown since 1991. Beginning in September 2000, the Chief of Police issued a series of Preliminary Notices of Disciplinary Action related to four incidents involving Carter. The first was for Carter's failure to request a vacation week in a timely manner. When his belated request could not be accommodated, Carter nevertheless went on vacation, providing his supervisor with an out-of-date doctor's note. A second Notice was based on Carter's use of ninety-seven sick days in a two-year period and calling out sick to go to a hockey game. The third Notice charged Carter with calling out sick to attend a sporting event.

The fourth Notice of Disciplinary Action is the focus of this appeal. In that Notice, Carter was charged with incompetency, inefficiency, failure to perform duties, conduct unbecoming a public employee, neglect of duty, sleeping on duty, failure to check in on radio and failure to adhere to general responsibilities of a police officer arising from an investigation that Carter was sleeping on duty. Information that Carter might be sleeping on duty first came to the attention of the Chief of Police in July 2000, when a citizen complained. The citizen called the police for assistance twice in one night, each time thinking that he had awakened the dispatcher. The citizen complained that police were not sent in response to the first call and they were not sent in a timely manner after his second call. Carter was the dispatcher on duty both times. After hearing the recording of the calls, the Chief agreed that each time it sounded as if Carter had been awakened by the telephone calls. Carter was issued a written warning that sleeping on duty was not authorized and if he was found sleeping on duty, he would be served with major disciplinary charges.

On June 7, 2001, the supervisor of the Internal Affairs Bureau notified the Police Chief that other officers alleged that Carter was sleeping on the job. An investigation was conducted on three successive dates. The investigating officers saw Carter's patrol car parked on the side of a road with its headlights off. They made several "drive-bys" at high rates of speed to which Carter did not react. They also documented that Carter failed to respond promptly to a call for assistance from another officer regarding a local disturbance. In addition, each night, using night vision binoculars, the officers observed Carter asleep in the front seat of his parked police car for various periods of time, including one in excess of two hours, and totaling more than five hours. When they interviewed Carter, he conceded that he might have dozed off from time to time. He denied, however, intentionally pulling off the road to sleep while on duty.

In the other disciplinary actions, Carter received three suspensions for varying periods of time. For the sleeping on duty charges, Carter was to be terminated from his employment with the Bordentown Police Department. Carter appealed, and all four disciplinary actions were referred to the Office of Administrative Law for a hearing. The Administrative Law Judge found that Carter had slept in his patrol car on three days in June 2001, that he had a history of violations of the rules and regulations, and that removal from service was the proper remedy. The Merit System Board accepted and adopted the ALJ's findings and conclusions and affirmed the penalty of removing Carter for sleeping on duty. In an unpublished opinion, the Appellate Division agreed with the Board that there was sufficient factual basis to sustain those charges, but concluded that the punishment was too severe and should be reevaluated in accordance with the theory of progressive discipline. The Supreme Court granted Bordentown's petition for certification.

HELD: The Appellate Division erred in treating the principle of progressive discipline as a mandate of law. The offending behavior alone supported the police officer's removal.

1. The scope of appellate review of a final agency decision is limited and a decision is not ordinarily overturned in the absence of a showing that it was arbitrary, capricious or unreasonable. In addition, the appellate court must defer to an agency's expertise and superior knowledge in a particular field. (pp. 11-12)

2. In concluding that the penalty of removal for sleeping on the job was excessive, the Appellate Division panel reasoned that the Merit System Board erred in failing to abide strictly by the theory of progressive discipline. Progressive discipline finds its origins in the Court's decision in West New York v. Bock, 38 N.J. 500 (1962), which held that a firefighter's prior disciplinary record was relevant to determining an appropriate penalty for a subsequent offense. (pp. 12-14)

3. Progressive discipline is not a fixed and immutable rule to be followed without question. Some disciplinary infractions are so serious that removal is appropriate notwithstanding a largely unblemished prior record. The test to be applied is whether such punishment is so disproportionate to the offense, in light of all of the circumstances, as to be shocking to one's sense of fairness. (p. 14)

4. The Appellate Division has upheld dismissal where the acts charged, with or without prior discipline, have warranted that sanction. In matters involving discipline of police and corrections officers, public safety concerns may also bear upon the propriety of the dismissal sanction. Moreover, courts should not substitute their own views of whether a particular penalty is correct for those charged with making that decision. (pp. 14-16)

5. Here, the ALJ considered whether the offending behavior alone would support the penalty. The ALJ concluded that dismissal was appropriate for a police officer who pulls his patrol car to the side of the road to sleep on three successive nights, for periods as long as two hours at a time, who fails as a result to attend to his police duties and who fails to promptly respond to another officer's call for assistance. Under these circumstances, there is nothing arbitrary or capricious about removing the police officer. (pp. 16-17)

6. Removal is not always the appropriate sanction to be imposed on a police officer who is found sleeping while on duty. Circumstances relating to other officers or staffing patterns and practices in other municipalities might well dictate the imposition of a different penalty on anther officer. (p. 17)

The judgment of the Appellate Division is REVERSED and the penalty imposed by the Merit System Board is REINSTATED.

CHIEF JUSTICE ZAZZALI and JUSTICES LONG, LaVECCHIA, ALBIN, WALLACE and RIVERA-SOTO join in JUSTICE HOENS' opinion.

The opinion of the court was delivered by: Justice Hoens

Argued January 17, 2007

Bordentown Police Officer John Carter was served with a series of disciplinary notices charging him with, among other things, sleeping on duty. Although the Merit System Board upheld the penalty of termination for that offense, the Appellate Division reversed, concluding that imposition of that sanction violated the principle of progressive discipline. We granted the Township of Bordentown's petition ...


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