On appeal from a final determination of the Merit System Board, Department of Personnel, DOP Docket No. 2005-4734.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Gilroy and Baxter.
Enrique Torres appeals from a September 22, 2006 final decision of the Merit System Board (Board) affirming the decision of the City of Passaic (City) to remove Torres from his employment as a police officer. We affirm.
Torres was appointed to the Passaic police department (Department) in March 2003. On September 21, 2004, Lieutenant A. Casabona forwarded a memorandum to the chief of police, Stanley Jarenski, recommending that Torres be transferred out of the Street Crime Unit and be ordered to undergo a psychiatric evaluation. In his memorandum, Casabona described three recent incidents that led him to make those recommendations. The first involved Torres angrily punching a stationary public telephone in front of several officers and civilians after a female subject scratched his face. The second incident occurred six weeks later on September 16, 2004, when Torres "escalate[d]" a police encounter with numerous juveniles by approaching one of the males and yelling at him. The third incident occurred two days later when Torres, after officers had subdued several subjects, "began to re-escalate the situation" by approaching a handcuffed male and shouting at him. Torres then pushed the male backward. Casabona commented that had the car door of the police vehicle not been in an open position, the male "could have fallen backwards and been seriously injured."
As a result of Casabona's memorandum, Chief Jarenski issued an order through the director of the Department's Employee Assistance Program (EAP), Thomas Fischetti, requiring Torres to undergo anger management counseling with a licensed therapist. Torres selected Steven Rapsas, a Licensed Clinical Social Worker. Six weeks later, Rapsas reported to Fischetti that Torres had never appeared for any of the scheduled appointments. After receiving Rapsas's report, Detective Robert Longo of Internal Affairs conducted an investigation. In the course of that investigation, Longo asked Torres to write a report concerning his counseling sessions. Torres prepared and signed a report dated December 31, 2004, in which he reported that he had been attending the sessions. Torres wrote:
Since I have been attending counseling within the past few weeks, I have been more relaxed with myself and people around me. I usually attempt to try to schedule an appointment once a week with my clinical social worker and he tries to cover all aspects . . . of my life as well as my well-being. . . .
Attending these sessions, I have learned to deal with situations in better and understanding ways.
After realizing that the statements Torres made in his December 31, 2004 report about appointments with Rapsas were false, the Department on January 12, 2005, required Torres to submit an additional report. In that second report, Torres acknowledged that he had been untruthful in his December 31, 2004 report when he stated that he had been attending counseling sessions; however, Torres insisted in the January 12, 2005 statement that the chief of police was wrong when he ordered him to attend counseling sessions because Torres did not have an anger management problem and should not have been required to attend counseling.
That same day, the Department issued a Preliminary Notice of Disciplinary Action (PNDA) charging Torres with four violations of N.J.A.C. 4A:2-2.3(a): insubordination, conduct unbecoming a public employee, neglect of duty and other sufficient cause. The PNDA specified that Torres failed to attend the required counseling sessions and deliberately submitted a false report. After a departmental hearing on March 17, 2005, the Department issued a Final Notice of Disciplinary Action on April 13, 2005, that sustained all of the charges contained in the PNDA and imposed a disciplinary penalty of removal.
At the hearing before the Administrative Law Judge (ALJ), Torres testified that the only reason he did not attend the counseling sessions with Rapsas was because of various scheduling conflicts, most of which were caused by Rapsas. Torres also testified that the reference in his December 31, 2004 report to the counseling sessions that had been beneficial was intended as a reference to his meetings with Fischetti and was not intended to be a reference to Rapsas who was a Licensed Clinical Social Worker. Torres also testified that Detective Longo never advised him at the time he wrote his December 31, 2004 report that he was under investigation nor did Longo ever provide him with a "Target Advisement Form."
Torres maintained that immediately before he wrote the January 12, 2005 report, he was threatened with suspension and termination if he did not provide a report. He also claimed that being forced to write the statements made him feel "nervous and pressured." He insisted that the ...