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In re Terry

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


August 23, 2007

IN THE MATTER OF DAWN TERRY, CITY OF NEWARK.

On appeal from a Final Agency Decision of the Merit System Board, DOP Docket No. 2002-4565.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted August 14, 2007

Before Judges S.L. Reisner and Lyons.

Appellant, Dawn Terry (Terry), appeals from a final administrative determination issued by the Merit System Board (Board), dated March 23, 2006, which adopted an Administrative Law Judge's (ALJ) findings of facts and conclusions of law and upheld his recommendation to terminate Terry's employment as a Newark police officer effective April 30, 2002. Because we find the Board's decision is not arbitrary, capricious, or unreasonable, and that it is adequately supported by the record, we affirm.

The following factual and procedural history is relevant to our consideration of the issues advanced on appeal. Based upon the evidence produced at the hearing before the ALJ, in March 2000, a "Dawn Terry" picked up Marvin Dew's ("Dew") personal property following his arrest on a charge of weapons possession. Dew is a convicted felon with numerous prior arrests and aliases. Terry resided in a second floor apartment in Newark ("Newark address/residence"). In August 2000, Dew, using an alias, was arrested for loitering and gave Terry's place of residence as his address. In April 2001, an Adult Pre-Sentence Report for "John Lewis" (an alias used by Dew), listed Terry's Newark residence as his address. The report specifically identified Terry as his girlfriend and confirmed that he lived there with her. That report also noted that he uses other aliases and that he had been arrested thirteen times under ten different names.

On April 9, 2001, Terry filed an application for employment as a police officer with the Newark Police Department. In the application, she listed her Newark address as her residence and specified that the only persons then living with her were her thirteen-year-old daughter and her six-year-old son. In June 2001, Dew changed the address of his driver's license to Terry's Newark address.

On July 19, 2001, as part of her candidacy application process, Terry was interviewed by a psychologist. In her answers to a question on the interview report form, seeking information as to whom she resided with, she listed only herself and her two children and also represented that she was not in a relationship with any other person. In August 2001, Terry began her employment with the Newark Police Department.

On March 3, 2002, Dew was arrested in Newark on various charges, including aggravated assault, weapons possession and resisting arrest. At the time of his apprehension he was in a vehicle, the keys to which were in his possession. Upon further investigation, it was determined that "a police affiliated shield" was in the vehicle and the vehicle was registered to Terry.

In the early hours of March 4, 2002, Terry was interviewed by the Internal Affairs section of the Newark Police Department as a result of Dew's arrest. During the course of her interview, Terry admitted that Dew was her "boyfriend" and that she had first met him "about a year ago." She further stated she had begun "to date Dew a couple of months after that" and as of March 4, 2002, he had been living with her for "[a]bout six or seven months." Therefore, according to Terry, he would have been living in her apartment from August or September 2001. Terry stated that she was not aware that Dew had any criminal past other than he had once told her he was arrested for "wandering."

Based upon these events, Terry was terminated from her employment as a Newark police officer effective April 30, 2002, pursuant to a final notice of disciplinary action dated March 3, 2002. Terry contested the matter and it was transmitted to the Office of Administrative Law on August 21, 2002 by the Department of Personnel pursuant to N.J.S.A. 52:14B-1 to -24 and N.J.S.A 52:14F-1 to -13 for a hearing as a contested matter.

There were six charges brought against Terry by her employer, the City of Newark. In essence, she is alleged to have given a false statement on her application and in the course of her psychological interview regarding her relationship with Dew. The matter was heard by an ALJ who rendered his initial decision on January 27, 2006 upholding the termination.

At the hearing, the ALJ heard testimony from six police officers from the City of Newark. Terry presented a friend, Dew's mother, and Terry's son's grandfather as witnesses. She herself did not testify. At the conclusion of the hearing, the ALJ made fourteen findings of fact and set forth his conclusions of law in a written decision. The ALJ concluded that Terry's witnesses were not credible, having been contradicted by Terry's own statements to the police on March 4, 2002. The ALJ found that the charges against Terry were proven by a preponderance of the evidence and recommended upholding her termination from the Newark Police Department.

On March 23, 2006, the Merit System Board reviewed the record and the ALJ's initial decision and adopted the ALJ's findings of fact and conclusions of law as well as his recommendation to uphold Terry's removal from office. This appeal ensued.

On appeal, Terry presents the following arguments for our consideration:

POINT I: DURING CROSS EXAMINATION, THE APPOINTING AUTHORITY ACKNOWLEDGED THAT IT WAS NOT A VIOLATION OF NEWARK'S POLICE DEPARTMENT RULES AND REGULATIONS FOR A POLICE OFFICER TO RESIDE WITH A KNOWN FELON, AND, AS SUCH, THE APPELLANT'S UNDERLYING CONDUCT WAS NOT OF SUCH AN EGREGIOUS NATURE TO WARRANT THE IMPOSITION OF A SERIOUS PENALTY FOR REMOVAL FROM HER POSITION.

SUBPOINT B: UNDER THE RULES AND REGULATIONS OF THE APPOINTING AUTHORITY, THERE IS NO PROHIBITION AGAINST LIVING WITH A KNOWN FELON.

POINT II: THE APPOINTING AUTHORITY FAILED TO PROVE THAT THE APPELLANT WAS AWARE OF MARVIN DEW'S CRIMINAL BACKGROUND WHEN SHE WAS INTERVIEWED.

POINT III: THE ADMINISTRATIVE LAW JUDGE ERRED IN ACCEPTING HEARSAY EVIDENCE.

POINT IV: UNDER CONTRACT LAW, THE APPOINTING AUTHORITY VIOLATED THE COVENANT OF REASONABLE BEHAVIOR IMPLIED IN ALL CONTRACTS.

We begin our consideration of these arguments by restating applicable legal principles. In In re Tammy Herrmann, ____ N.J. ____, ____ (2007) (slip op. at 10-12), our Supreme Court restated the well-recognized principles of judicial review of administrative agency actions. The Court said:

The scope of [judicial review of administrative agency actions] is limited. See In re Carter, ___ N.J. ___ (2007) (slip op. at 11). An administrative agency's final quasi-judicial decision will be sustained unless there is a clear showing that it is arbitrary, capricious, or unreasonable, or that it lacks fair support in the record. See Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963). Three channels of inquiry inform the appellate review function:

(1) whether the agency's action violates express or implied legislative policies, that is, did the agency follow the law; (2) whether the record contains substantial evidence to support the findings on which the agency based its action; and (3) whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors. [Mazza v. Bd. of Trs., 143 N.J. 22, 25 (1995) (citing Campbell, supra, 39 N.J. at 562).]

When an agency's decision meets those criteria, then a court owes substantial deference to the agency's expertise and superior knowledge of a particular field. See In re License Issued to Zahl, 186 N.J. 341, 353 (2006); Brady v. Bd. of Review, 152 N.J. 197, 210 (1997); Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992). Deference controls even if the court would have reached a different result in the first instance. See In re Taylor, 158 N.J. 644, 657 (1999).

That deferential standard applies to the review of disciplinary sanctions as well. See Knoble v. Waterfront Comm'n of N.Y. Harbor, 67 N.J. 427, 431-32 (1975); see generally 37 New Jersey Practice, Administrative Law and Practice, § 328, at 333-34 (Steven L. Lefelt) (1st ed. 1988) (hereinafter Lefelt). A reviewing court should alter a sanction imposed by an administrative agency only "when necessary to bring the agency's action into conformity with its delegated authority. The Court has no power to act independently as an administrative tribunal or to substitute its judgment for that of the agency." In re Polk, 90 N.J. 550, 578 (1982); see also Lefelt, supra, at 334 (stating same and that "[a]fter reviewing the statutory authorization and the record, if the court concludes that the sanction is not illegal or unreasonable, the sanction will be affirmed"). In light of the deference owed to such determinations, when reviewing administrative sanctions, "the test . . . is 'whether such punishment is so disproportionate to the offense, in light of all the circumstances, as to be shocking to one's sense of fairness.'" Polk, supra, 90 N.J. at 578 (citing Pell v. Bd. of Educ., 34 N.Y.2d 222, 233 (1974)). The threshold of "shocking" the court's sense of fairness is a difficult one, not met whenever the court would have reached a different result. [Hermann, supra, (slip op. at 10-12).]

Mindful of these principles, we turn to review the arguments raised by Terry.

Terry first argues that during cross-examination of some of the Newark Police Department officials, it was acknowledged by those witnesses that it is not a violation of Newark's Police Department rules and regulations for a police officer to reside with a known felon. Appellant argues, therefore, that her conduct was not so egregious as to warrant the imposition of the serious penalty of removal from office. She also argues that because it is not prohibited for a Newark police officer to cohabit with a convicted felon, she had no reason to lie about it, if it had been true.

In its reply brief, the City of Newark states that Rule 4:2.5 of the Newark Police Department rules prohibits association with criminals and that the testimony of the police officers was, therefore, incorrect. We note that the police department rule referenced by the City of Newark's counsel is not in the record, nor attached to the brief. "[A]ppellate courts will not ordinarily consider evidentiary material which is not in the record below by way of adduced proof, judicially noticeable facts, stipulation, admission, or a recorded proffer of excluded evidence." See Pressler, Current N.J. Court Rules, comment 1 on R. 2:5-4 (2007); Cipala v. Lincoln Tech. Inst., 179 N.J. 45, 52 (2004).

The record supports the ALJ's credibility determination that Terry was not honest and straightforward in her completion of the application for employment and in her interview with the psychologist. Terry attacks the ALJ's credibility finding, contending that she had no reason to lie, if it was permissible for her to live with a convicted felon. But, credibility is always for the fact finder to determine. Ferdinand v. Agric. Ins. Co. of Watertown, N.Y., 22 N.J. 482, 492 (1956). In reviewing an ALJ's credibility determination, we must accord "due regard to the opportunity of the one who heard the witnesses to judge their credibility." In re Taylor, 158 N.J. 644 (1999) (quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)). We are satisfied that the ALJ and the Board based their credibility findings on sufficient credible evidence and accord it "due regard."*fn1 It is clear that the gravamen of the charges against Terry is the failure to be honest, candid and forthcoming, rather than her living with a known felon. We have made it clear that a police officer is a "special kind of public employee" and "must present an image of personal integrity and dependability in order to have respect of the public." Cosme v. E. Newark Twp. Comm., 304 N.J. Super. 191, 206 (App. Div. 1997), certif. denied, 156 N.J. 381 (1998) (quoting Twp. of Moorestown v. Armstrong, 89 N.J. Super. 560, 566 (App. Div. 1965), certif. denied, 47 N.J. 80 (1966)). While certainly consorting with a convicted felon may tarnish an image of personal integrity, the underlying issue is the police officer's honesty and truthfulness in response to appropriate questions. The police candidate's honesty and integrity is the paramount issue and that was found wanting.

Society places special importance on the honesty of its police forces. See Moya v. New Brunswick, 90 N.J. 491, 516 (1982). A police officer must frequently testify in court in criminal prosecutions and various civil matters. If an officer is found to have been dishonest in statements about herself, it is doubtful much credence will be given to what she will say about others. Consequently, the issue of being able to reside with a felon is not determinative here. Integrity, honesty and truthfulness is the central issue. We conclude that there is appropriate credible evidence in the record to support the findings made, that there is statutory authorization for the disciplinary action taken and that termination was not illegal or unreasonable and should, therefore, be affirmed.

Terry next argues that the City of Newark failed to prove that she was aware of Dew's criminal background when she was interviewed. However, her contention fails to appreciate the primary issue, which is that Terry did not disclose in response to a direct question, in an honest fashion, her living arrangement.

Terry also argues that hearsay was used to prove her living arrangements when the police were permitted to testify what they learned from neighbors. However, it is clear from the findings of fact that the ALJ did not rely on any of those hearsay statements in making his findings of fact.

In Point III of her argument, Terry argues again that the ALJ accepted hearsay testimony in dealing with the issue of whether in March 2000, she was the "Dawn Terry" who picked up Marvin Dew's property. Again, our review of the record indicates that the ALJ did not base his conclusions on those statements.

Lastly, appellant argues that under contract law, the City of Newark violated the covenant "of reasonable behavior implied in all contracts." This argument has no merit. "[Police officers] are public officers as opposed to employees of or holders of positions in the government." Calabrese v. Policemen's Benev. Ass'n, Local No. 76, 157 N.J. Super. 139, 154 (Law Div. 1978). They are subject to "reasonable regulations having to do with discipline and morale." Akridge v. Barres, 122 N.J. Super. 476, 477 (App. Div. 1973), aff'd, 65 N.J. 266 (1974), cert. denied, 420 U.S. 966, 95 S.Ct. 1361, 43 L.Ed. 2d 445 (1975). Moreover, no contract was introduced into evidence. The matter proceeded under the Administrative Procedures Act and the appropriate civil service rules and regulations. See N.J.S.A. 52:14B-1 and N.J.S.A. 40A:14-118 to -175. The only contract which may have been at issue would be the City's contract with the police union. However, that was not raised below, nor is it in the record. As earlier indicated, we ordinarily do not consider evidentiary material which is not in the record or arguments that were not raised below. See R. 2:5-4 and Pressler, Current N.J. Court Rules, comment 2 on R. 2:6-2 (2007). The remaining arguments advanced by Terry are without merit and do not warrant further discussion. See R. 2:11-3(e)(1)(D) and (E).

Consequently, having thoroughly reviewed the record below as well as the applicable law, we are satisfied that the action of the Board was not arbitrary, capricious or unreasonable and that it was founded on facts for which there is ample credible support in the record. Accordingly, we affirm.


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