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Feltri v. Kelaher

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


April 30, 2008

SEAN FELTRI, PLAINTIFF-APPELLANT,
v.
THOMAS F. KELAHER (MISSPELLED "KELLAHER"), OCEAN COUNTY PROSECUTOR, OFFICE OF THE OCEAN COUNTY PROSECUTOR, AND COUNTY OF OCEAN, DEFENDANTS-RESPONDENTS.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, L-2685-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued April 15, 2008

Before Judges Winkelstein, Yannotti and LeWinn.

Plaintiff, Sean Feltri, was an investigator with the Ocean County Prosecutor's office. He appeals from a May 23, 2007 order of the Law Division affirming the prosecutor's termination of his employment. We affirm.

Since 2001, while an employee of the prosecutor's office, plaintiff received favorable job performance evaluations. He had, however, been involved in a physical altercation in 2003 for which he received a disciplinary charge and was temporarily suspended.

The events that resulted in plaintiff's termination occurred on the evening of June 5, 2005, beginning at approximately 11:30 p.m. A police patrol car was parked in front of Temptations bar, facing south on the shoulder of the northbound lane of the Boulevard in Seaside Heights, when plaintiff drove his car past. Both plaintiff and his passenger, Joseph Cohen, an off-duty police officer, had been drinking since approximately 4:00 p.m. Plaintiff had consumed six to seven beers and a "shot" of hard liquor.

Two on-duty police officers, Patrolmen Jason Mahr and Jason Mroczka, were in the parked patrol car when plaintiff drove by. They followed plaintiff's car and pulled it over into the parking lot of a bar. Mahr called Sergeant Thomas Yannacone for backup. Prior to Yannacone arriving, Patrolman Victor Tomaro also arrived on the scene. Plaintiff and the officers engaged in heated discussions. Ultimately, Yannacone demanded and received plaintiff's keys.

At approximately 12:43 a.m. on June 6, 2005, plaintiff called the Seaside Heights Police Department and left a voice mail message for Yannacone. The message was saved and transcribed. Plaintiff stated:

Hey let me tell you something, I know this line's being taped. I'm just gonna tell you this right now, I know that what you did was personal and let me tell you something. Those assholes had no probable cause to stop me and you had no probable cause to do what you [did] so I just hope you know that and I hope that you know that I'm gonna forward this information to whoever I can because you know what, you were fuckin, you went overboard and you're gonna pay the price.

Several minutes later, plaintiff again called Sergeant Yannacone.

Yannacone: Sergeant Yannacone.

Plaintiff: Hey Tommy it's Sean Feltri, how are you?

Yannacone: Okay.

Plaintiff: Good, Uh I just want to let you know I just uh left a message on your voice mail, I'm gonna be talking to your superiors about this so called motor vehicle stop that I was on and we're gonna hash it out during the week.

Yannacone: Sean that's fine, you do whatever you have to do. My officers were in the right, they did what they did and I did what I did and I felt that it was in your best interest due to the state of mind that you were in. If you want to debate that you have every right to do so.

Plaintiff: Great.

Yannacone: Okay?

Plaintiff: Thank you very much.

Yannacone: Take care.

The prosecutor brought three disciplinary charges against plaintiff stemming from these incidents: (1) misconduct pursuant to N.J.S.A. 2A:157-10.1; (2) conduct unbecoming an investigative member of the prosecutor's office; and (3) failure to report the incidents. A disciplinary hearing was held before Kenneth Fitzsimmons, a hearing officer, on July 19 and 22, 2005, where the officers involved in the incident testified. Plaintiff also testified, as did his supervisor in the prosecutor's office, and another officer, who saw plaintiff earlier in the evening on the date of the incident.

We will not repeat the verbatim testimony of the witnesses. Suffice it to say that officers Mahr and Mroczka, and Sergeant Yannacone, all testified that plaintiff appeared to have been drinking. He gave the officers a hard time, cursed them, used other derogatory language, and threatened their jobs.

Cohen testified that he and plaintiff were "impaired," but not "falling down" drunk. He did not hear plaintiff use the word "fuck," but plaintiff was "arrogant" to the officers. Cohen testified that plaintiff did not threaten the officers' jobs or call them "assholes."

Plaintiff's supervisor at the prosecutor's office testified that plaintiff was "one of the finest investigators [he] ever worked with," and the other officer testified that plaintiff did not appear impaired earlier in the evening of the incident. Plaintiff disputed the testimony of the prosecutor's witnesses. He testified that as he was passing by Temptations bar, he saw a patrol car "parked against the flow of traffic with its rear passenger side partially into [his] lane of travel." He slowed down, "tapped the horn a few times and traveled around" the patrol car. He believed he was traveling approximately twenty-five to thirty miles per hour.

After parking at Captain Hooks and getting out of his car, an officer told him to get back in the car and he complied.

When the officer then asked for his identification, plaintiff identified himself as an investigator for the prosecutor's office. He claimed that the officers were rude to him but that he never threatened their jobs. He testified that it was a "good possibility," however, that he used profanity towards the officers and a "possibility" that he called them "assholes."

Plaintiff did not remember telling Yannacone to "go fuck himself," as Yannacone had testified. At the hearing, plaintiff had no memory of his first call to Yannacone in which he left a message.

The hearing officer found plaintiff guilty of all charges and recommended suspension without pay for 180 days. The prosecutor rejected the hearing officer's suggested penalty and terminated plaintiff.

Plaintiff appealed de novo to the Superior Court. On February 9, 2007, Judge Buczynski issued an oral decision, which he memorialized in a February 23, 2007 order. The court found plaintiff guilty of the first two counts, and not guilty on count three. The court said:

The Court finds though as a fact that there was sufficient consumption of alcohol by [plaintiff and Officer Cohen] that it influenced their behavior or judgment. It does not find, however, that either of the officers were intoxicated to the extent that it would necessarily have violated a State Statute.

The Court finds though that based on the totality of the reports by Mr. Mahr and Mr. Mroczka and [plaintiff] that his vehicle was exceeding the speed limit on that evening in question which would give rise to probable cause to stop the vehicle.

. . . Both Patrolman Mahr and Patrolman Mroczka indicate in their reports and on testimony that when they stopped the vehicle [plaintiff] began the encounter by stating,

"What the F," and that's an expletive deleted, "did you pull me over for?" . . .

The Court finds that, in fact, this occurred.

[Plaintiff] admits that he probably used inappropriate language or foul language to the officer, although he does not recall the exact use of those words. . . .

The Court does note that although he did utilize the language as explained by Mr. Mahr and Mr. Mroczka, that this language alone would not support a charge of misconduct under N.J.S.A. 2A:157-10.1 although it would be characterized as offensive.

The most salient part of the testimony and the reports by Officers Mahr and Mroczka pertained to the alleged threat that [plaintiff] made during the stop. Patrolman Mahr stated in his report under P-4 and again under oath that [plaintiff] threatened his employment by saying, "I'll have your job." . . .

The Court also considered the report of Officer Mroczka in this area, and he too corroborates that [plaintiff] made that threat.

The Court finds as a matter of fact that, in fact, [plaintiff] did indicate to one of the officers in the presence of both that he would have their job, and that constituted a threat against their employment.

Patrolman Cohen, also sitting in the Jeep during the exchange, corroborates [plaintiff's] chastising of these officers. When Mr. Cohen was asked if [plaintiff] showed any disrespect to the officers, he responded, quote, "[y]eah, but in a way that I necessarily wouldn't have acted. If it's disrespectful then, you know," close quote. . . . And when Mr. Cohen was asked whether he thought [plaintiff] was being arrogant to the patrolman, he responded, "[s]ure, he was arrogant." Mr. Cohen also indicated . . . that [plaintiff showed] a lack of judgment and that he was impaired and/or intoxicated. . . .

I am satisfied that the behavior as characterized as disrespectful towards those police officers, in fact, did occur.

. . . After Sergeant Yannacone arrived, [plaintiff] indicated that he and the sergeant were, in fact, yelling at each other and that during this exchange he may have possibly referred to Patrolman Mahr and Mr. Mroczka as, quote, "a-holes," expletive deleted. . . .

I'm satisfied that, in fact, during this conversation that characterization of those officers did, in fact, occur.

Within one hour after this encounter [plaintiff] made two separate phone calls to the Seaside Heights Police Department . . . .

Those two calls, the first one in particular, supports the charge that [plaintiff], in fact, was utilizing his position to threaten the employment of the other parties. It further corroborates statements made by the prior officers prior to the stop and ultimately amounts to misconduct that is recognizable under 2A:157-10.1.

I'm satisfied that [plaintiff's] stop was based upon probable cause resulting from the speeding and sounding of the horn.

In furtherance of the Court deciding on the credibility of [plaintiff], it had the opportunity to review and to listen to the video tape of his deposition which occurred approximately seven days after the events on July 22nd. During that interview[, plaintiff] denied leaving the verbal statement on the voice mail. The Court does not find that as a matter of lacking credibility but simply corroborates the fact that he was, in fact, influenced by the consumption of alcohol that evening and his memory because of that in some way was lacking.

The Court does find though that [plaintiff] did violate the internal rules and regulations and Code of Conduct and Ethics . . . .

Therefore, based on the Court's findings that, in fact, [plaintiff] threatened two police officers with the loss of their job, his innapropriate behavior during the course of that stop, his voice mail that he left to Sergeant Yannacone that evening, all corroborates the findings of this Court that there was official misconduct under 2A:157-10.1; that he did exhibit a lack of judgment, unprofessional conduct, and disrespect towards fellow police officers. He did abuse his position as an investigator for the Ocean County Prosecutor's Office. And that, in fact, he violated the internal rules and regulations and the Code of Conduct . . . .

The court did not impose a penalty at that time. Plaintiff subsequently moved to compel discovery of the disciplinary records of other investigators on the prosecutor's staff. The court denied the motion, finding that whether other members of the prosecutor's staff had been disciplined was irrelevant to plaintiff's potential penalty.

On May 18, 2007, the court issued an oral decision affirming plaintiff's termination. The judge made the following pertinent findings:

[I have] examined the record favorable to the plaintiff including the plaintiff's police and fire training, his job history, commendations and award[s] issued to plaintiff in his capacity as a law enforcement officer and volunteer firefighter in addition to periodic evaluation reports issued while employed at the Ocean County Prosecutor's Office.

Nonetheless, this Court's decision is to affirm the decision of Prosecutor Thomas Kelaher to terminate [plaintiff's] employment. This Court adheres to the adage that a police officer is a special kind of public employee. He represents law and order to the citizenry and must present an image of personal integrity and dependability in order to have the respect of the public. . . .

[Plaintiff] had opportunities in advance of the internal investigation to come forward and honestly disclose his inappropriate behavior and lack of good judgment, but chose to do otherwise. . . . [Plaintiff's] behavior is evidenced by the two significant convictions sustained by this Court which cannot be tolerated. This Court finds plaintiff's utility as a credible investigator [has] been irreparably undermined.

On appeal, plaintiff's primary argument is that the evidence was insufficient to warrant his conviction. That argument is without merit.

Under the County Detectives and County Investigators Act, N.J.S.A. 2A:157-1 to -23, the county prosecutor has the power to appoint and remove county investigators. N.J.S.A. 2A:157-10.

N.J.S.A. 2A:157-10.1 provides, in part:

Except as otherwise provided by law, a county investigator employed by the county prosecutor shall not be removed from office, employment or position for political reasons or for any cause other than incapacity, misconduct, or disobedience of rules and regulations established by the prosecutor, nor shall such investigator be suspended, removed, fined or reduced in rank from or in office, employment, or position therein, except for just cause as hereinbefore provided . . . .

N.J.S.A. 2A:157-10.7 provides county investigators with the right of de novo review in the Superior Court for disciplinary convictions and penalties. "The court shall hear the cause de novo on the record below and may either affirm, reverse or modify such conviction." Ibid. On appeal from the trial court, this court plays "a limited role in reviewing the de novo proceeding." In re Phillips, 117 N.J. 567, 579 (1990). We decide only whether the trial court's decision was "supported by substantial credible evidence in the record as a whole" and was not "arbitrary, capricious or unreasonable." Ibid. The quantum of proof for a disciplinary proceeding is the preponderance of the evidence. Id. at 575.

Applying this standard of review, we find no basis to overturn Judge Buczynski's well-reasoned decision. The Prosecutor's Office Employment Policy Manual provides, in part:

The members of the staff, in addition to performing their assigned duties, must cooperate with each other, municipal police departments and the public and must display loyalty to the goals and philosophy of the Office. . . . It is of paramount importance that the Office earn and maintain the confidence and respect of the law enforcement agencies with which the Office works and with which the Office shares information. Similarly, the Office must work to earn the confidence and trust of the public at large. . . .

The policy manual also includes a Code of Ethics applicable to all employees of the prosecutor's office, which provides, in part: "DUTIES AND PROHIBITIONS . . . No county prosecutor or employee of a county prosecutor's office may use an official position to secure unwarranted privileges, benefits, or advantages for any person or to impose unwarranted burdens or disadvantages on any person."

The policy manual includes a Standard of Conduct applicable to all employees of the prosecutor's office. It provides, in part:

Personnel in both their private and public lives shall conduct themselves in a manner that will not reflect adversely on the reputation of the Ocean County Prosecutor's Office. They shall maintain the dignity and integrity of their office through exemplary conduct and adherence to all administrative policies, rules and regulations. They shall maintain respect for the welfare and rights of all citizens. . . . They shall recognize that service in the Ocean County Prosecutor's Office is a public trust requiring dedication to ethical principles of the highest order. . . . All employees are reminded that acceptance of a position with the Prosecutor's Office places them at a standard above and beyond that of the average citizen.

In light of these standards, as to count one, misconduct pursuant to N.J.S.A. 2A:157-10.1, the court found that plaintiff had made "two calls, the first one in particular . . . utilizing his position to threaten the employment of the other parties. It further corroborates statements made by the [other officers at] the stop and ultimately amounts to misconduct that is recognizable under 2A:157-10.1."

As to count two, conduct unbecoming a county investigator under the rules and regulations of the prosecutor's office, the court found that plaintiff had exercised a "lack of judgment, unprofessional conduct, and disrespect towards . . . fellow police officers, and that he abused his position as an investigator with the Prosecutor's Office."

The record supports those findings. The trial court found that plaintiff threatened the job of one of the officers. Both in their reports and at trial, Mroczka and Mahr asserted that plaintiff told them he would "have [their] fucking jobs."

Plaintiff denied making the statement, but the court found that his memory was "influenced by the consumption of alcohol that evening." Plaintiff admitted consuming several beers and a shot of hard liquor that evening and Cohen testified that they were both "impaired." Yannacone smelled alcohol on plaintiff's breath and observed that plaintiff's pupils were dilated.

The court also found that plaintiff "utiliz[ed] his position to threaten the employment" of the officers in his phone calls to the Seaside Heights Police Department that evening, which constituted misconduct under N.J.S.A. 2A:157-10.1. Plaintiff's message and subsequent phone call to Sergeant Yannacone support this finding.

The court credited Mroczka's testimony that plaintiff repeatedly called Mahr and Mroczka "assholes." Both officers' reports corroborate that plaintiff was uncooperative and asked repeatedly, "why the fuck did you pull me over?" Cohen testified that plaintiff was "arrogant" to the officers.

Yannacone testified that plaintiff called him and the other officers "assholes"; that plaintiff told him repeatedly to "go fuck [him]self," and "this is bullshit"; and that plaintiff referred to the officers as "jerkoff specials." Plaintiff admitted in his testimony that there was a "good possibility" that he used profanity towards the officers and a "possibility" that he called them "assholes."

The record supports the court's findings that plaintiff's actions were sufficient to warrant his convictions for misconduct under N.J.S.A. 2A:157-10.1 and for conduct unbecoming a county investigator under the rules and regulations of the prosecutor's office. According to the evidence accepted by the trial court, plaintiff repeatedly used his position to threaten the jobs of Yannacone, Mahr, and Mroczka. He was uncooperative with the officers and reflected an attitude of general disrespect for their positions by referring to them in derogatory language. His actions are inconsistent with the public's expectations of an individual entrusted with his authority, and they undermine public trust in the prosecutor's office and inter-departmental cooperation with municipal police departments.

Plaintiff further asserts that the penalty, termination of his employment, was severe, excessive and arbitrary, and "runs afoul of the basic tenets of the 'progressive discipline' doctrine." We disagree. The trial court's reasons for termination of plaintiff's employment were fully supported by the record.

Plaintiff relies on In re Carter, 191 N.J. 474 (2007), in support of his argument. In Carter, the Court described progressive discipline as the principle that a proposed sanction may be based on more than the "severity of the current infraction alone." Id. at 483. A prior disciplinary record is "inherently relevant to determining an appropriate penalty for a subsequent offense." Ibid. (internal quotations omitted).

The concept of progressive discipline is not, however, a "fixed and immutable rule to be followed without question." Id. at 484. "[S]ome disciplinary infractions are so serious that removal is appropriate notwithstanding a largely unblemished prior record." Ibid. "[T]he question for the courts 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." Ibid. (internal quotations omitted).

In light of the seriousness of plaintiff's convictions, the penalty imposed was not "so disproportionate to the offense . . . as to be shocking to one's sense of fairness." Ibid. The judge found that plaintiff's use of his position to threaten fellow law enforcement officers' jobs; his lack of judgment; his disrespect of fellow law enforcement officers; and his general conduct were inconsistent with the expected conduct of an officer entrusted with the public's welfare. The record supports the court's conclusions.

Plaintiff's remaining arguments are without sufficient merit to address in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

20080430

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