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In re Terry

August 23, 2007


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

Per curiam.


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 ...

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