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McElwee v. Borough of Fieldsboro

May 29, 2008

JOHN G. MCELWEE, PLAINTIFF-APPELLANT,
v.
BOROUGH OF FIELDSBORO, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-1993-04.

The opinion of the court was delivered by: Yannotti, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Submitted April 15, 2008

Before Judges Winkelstein, Yannotti and LeWinn.

Plaintiff John G. McElwee appeals from an order entered by the Law Division on September 25, 2006, which upheld a determination by defendant Borough of Fieldsboro to remove him from his position as a police officer. We affirm.

In 2000, plaintiff began working for the Borough as a police lieutenant. Initially, plaintiff was the Borough's only police officer and he remained so until April 2003, when the Borough hired another officer. On February 12, 2002, the Borough adopted an ordinance that designated the police lieutenant as the senior operational officer in the department, subject to the administrative direction of the Borough's director of public safety.

The ordinance allowed the mayor to serve as director for up to six months in the event of an absence, disqualification or vacancy in that the position. Sometime before the ordinance was passed, Mayor Edward Tyler appointed himself as director of public safety. Thereafter, Tyler did not appoint another public safety director and he continued to serve in that position beyond the six months permitted by the ordinance.

In 2003, the Borough issued a complaint charging plaintiff with ten counts of misconduct. A hearing officer conducted a hearing on the charges on various dates from December 23, 2003, to April 20, 2004. During the hearing, the Borough dismissed five of the counts.

The remaining counts charged plaintiff with: failing to have the Borough's police vehicle repaired at Glenk's Auto Repair, as required by the Borough's policy (count one); failing to report his absences to the Borough Clerk or his supervisor (count two); refusing to comply with the Borough's directive that he work the 3:00 p.m. to 11:00 p.m. shift on Thursdays, Fridays and Saturdays (count five); failing to comply with directives from the Council and Tyler that he devote "the bulk of his time" to patrol (count eight); and failing to comply with a directive requiring that he prepare and submit patrol logs to document "the nature of his daily activities and the amount of time" that he devoted to patrol duties (count nine).

The hearing officer issued a report dated June 14, 2004, in which he found plaintiff guilty on the five remaining charges. As a penalty, the hearing officer recommended plaintiff's removal. The Mayor and Council accepted the hearing officer's findings and recommendation and, on July 14, 2004, terminated plaintiff.

On July 15, 2004, plaintiff commenced an action in the Law Division in which he sought review of the Borough's action. The judge heard oral argument on September 14, 2006 and, on that date, rendered a decision from the bench.

The judge first addressed the charge in count one. The judge found that the Borough had an unwritten policy to have its police vehicles serviced at Glenk's Auto Repair. The judge also found that plaintiff was aware of the policy and knowingly failed to follow it. The judge concluded, however, that plaintiff's failure to follow this policy did not rise to the level of misconduct and did not warrant the imposition of any sanction. The judge stated that the charge had "nothing to do . . . with the safety or welfare of the people."

The judge found that plaintiff failed to report his sick and vacation days, as charged in count two. The judge accepted Tyler's assertion that he had asked plaintiff to report his sick and vacation days. The judge observed that this was "not an onerous request." The judge found that plaintiff's failure to report his absences also had ...


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