June 4, 2008
IN THE MATTER OF ENRIQUE TORRES.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 19, 2008
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 second report was not accurate because it had been written under duress.
In her decision, the ALJ rejected Torres's explanations about the two reports that he submitted. She found that:
Officer Torres's arguments do not ring true. . . . It is clear that Mr. Torres realized that Mr. Rapsas was the person who was to provide counseling. Mr. Torres's argument [that there was no time limit] regarding attendance at counseling with Mr. Rapsas is equally unpersuasive. If Mr. Torres had been motivated to attend counseling, he would have been sure that he arranged an appointment with Mr. Rapsas. One would not wait for over a month to see if his therapist would call back to reschedule, especially when Officer Torres had broken the first appointment. If Officer Torres believed that Mr. Rapsas was not being responsive, he could have enlisted Mr. Fischetti's help. There is no indication that he did so. . . . If Officer Torres had any question about whether he was required to attend counseling [with Rapsas], it was incumbent upon him to find out.
It is my conclusion that . . . Torres had not gone for counseling, even though he had been ordered to do so, because he did not believe that he had an anger problem. It appears that initially Officer Torres thought he could just ignore the situation and his superiors would forget about the problem. Once he was caught, he made up a story about going to counseling and hoped that no one would check up on him. When he was finally confronted, he revealed his true position, i.e. that he did not think he needed counseling and therefore disobeyed the order to attend therapy sessions.
Career officers may be removed, suspended or demoted for cause. The reasons for discipline include insubordination, contact unbecoming of a public employee and neglect of duty. . . . In the case of a paramilitary organization, such as a police department, maintenance of strict discipline is particularly important.
Based on the foregoing, I conclude that the charges against Officer [Torres] be sustained and . . . it is ordered [that] he be removed from his position. [(citations omitted).]
Torres filed an appeal with the Board which, on September 22, 2006, affirmed the decision of the ALJ and dismissed Torres's appeal. On appeal, Torres argues: (1) the decision of the Board is arbitrary and capricious and must be reversed; (2) the penalty of termination must be vacated because the Department failed to apply progressive discipline; and (3) the Department erroneously failed to acknowledge the applicability of the Attorney General guidelines pertaining to internal affairs investigations and in so doing, violated Torres's statutory and constitutional rights.
We review Torres's contentions in light of our scope of review, which is a narrow one. We will not overturn a final agency decision "in the absence of a showing that it was arbitrary, capricious or unreasonable, or that it lacked fair support in the evidence." In re Carter, 191 N.J. 474, 482 (2007) (quoting Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963)). As the Court observed in Carter, a reviewing panel: must defer to an agency's expertise and superior knowledge of a particular field. Although an appellate court is "in no way bound by the agency's interpretation of a statute or its determination of a strictly legal issue," if substantial evidence supports the agency's decision, "a court may not substitute its own judgment for the agency's even though the court might have reached a different result." [Id. at 483 (citations omitted).]
Here, we are satisfied that there is sufficient credible evidence in the record to support the ALJ's and the Board's finding that Torres knew he was required to complete counseling sessions with Rapsas; and that he understood that his initial meetings with Fischetti were not a substitute for undergoing counseling with Rapsas. As the Board correctly argues, Torres acknowledged on cross-examination that he was advised that he would be going to Rapsas for counseling and that he should contact Rapsas to schedule those sessions. Moreover, Torres acknowledged on cross-examination that when he signed an authorization to release information to Rapsas, the document he signed reflected that the purpose of releasing information to Rapsas was "to develop and coordinate a social work plan of action for the client." This evidence, when combined with the undisputed testimony that in a six-week period Torres attended no sessions with Rapsas, amply supports the Board's conclusion that Torres understood that he was obligated to attend anger management sessions with Rapsas and was insubordinate when he refused a direct order from the chief of police that required him to do so.
The maintenance of discipline in a para-military organization such as a police department is paramount. Rivell v. Civil Serv. Comm'n, 115 N.J. Super. 64, 72 (App. Div.), certif. denied, 59 N.J. 269 (1971). "Refusal to obey orders and disrespect cannot be tolerated. Such conduct adversely affects the morale and efficiency of the department." Ibid. We are satisfied that the Board properly determined that Torres was guilty of the charge of insubordination. See N.J.A.C. 4A:2-2.3(a)(2).
As to the charge of conduct unbecoming a public employee, N.J.A.C. 4A:2-2.3(a)(6) contains no definition of that term. We have held, however, that conduct unbecoming a public employee is conduct that adversely affects morale or efficiency or has a tendency to destroy public respect for governmental employees and confidence in the operation of public services. In re Appeal of Emmons, 63 N.J. Super. 136, 140 (App. Div. 1960).
Deliberately filing a false police report is conduct that strikes at the very heart of a police officer's responsibility and undermines public confidence in police. Cosme v. E. Newark Twp. Comm., 304 N.J. Super. 191, 206 (App. Div. 1997), certif. denied, 156 N.J. 381 (1998). If a police department maintains or retains an officer after he has falsified a police report, his credibility in criminal matters as well as in other proceedings can be attacked. Moveover, citizens who are suspected of criminal activity have a right to expect that reports filed by a police officer accurately, fairly and honestly describe what occurred. Consequently, we have no difficulty concluding that the deliberate filing of a false police report is conduct unbecoming a public employee, especially in light of the strong need to maintain discipline within law enforcement agencies, see Henry v. Rahway State Prison, 81 N.J. 571, 579 (1980), and the capacity of a false police report to "disrupt and destroy order and discipline" in a police organization. Id. at 580.
We reject Torres's attack on the credibility of Longo's testimony. It is within the purview of an Administrative Law Judge, who hears and sees the witnesses, to evaluate their credibility. Cavalieri v. Bd. of Trs. of Public Employees Ret. Sys., 368 N.J. Super. 527, 534 (App. Div. 2004). We have been presented with no meritorious basis upon which to reject the credibility findings the ALJ made here. We are satisfied, as was the Board, that the record amply supports the ALJ's conclusion that Torres intentionally disregarded chief's order and intentionally lied in an official police report in order to conceal that insubordination. Accordingly, the final agency decision of the Board that found Torres guilty of insubordination and conduct unbecoming a public employee was based upon substantial and credible evidence in the record and must be affirmed. See Carter, supra, 191 N.J. at 482-83.
We turn next to Torres's claim that even if the charges are sustained, the penalty of removal was unduly harsh and violated applicable principles of progressive discipline. We need not tarry long in evaluating these claims. It is abundantly clear that "some disciplinary infractions are so serious that removal is appropriate" notwithstanding the lack of a prior disciplinary record. Carter, supra, 191 N.J. at 484. The determination of the appropriate sanction for a disciplinary infraction by a police officer should not be evaluated in a vacuum. Law enforcement officers are held to a higher standard of responsibility and conduct than other public employees. Moorestown v. Armstrong, 89 N.J. Super., 560, 566 (App. Div. 1965), certif. denied, 47 N.J. 80 (1966).
The obligation to cooperate with one's commanding officers "is intrinsic to the position of a police officer." Newark v. Massey, 93 N.J. Super. 317, 322-25 (App. Div. 1967)(quoting State v. Naglee, 44 N.J. 209, 221 (1965)). By failing to obtain the anger management counseling that the chief of police directed, Torres demonstrated a lack of personal integrity and a disregard for the community's welfare that is incompatible with the standard of conduct the public has a right to expect from its sworn officers. We are satisfied that the Board correctly determined that an officer who is unable to control his temper and who allows his own whims and prerogatives to diminish the rights of the citizenry when he refuses to obtain anger management counseling is an officer who is undeserving of public office.
We conclude that Torres's refusal to accept anger management counseling, his blatant disregard of the chief's instructions and his deliberate and willful falsification of a police report together demonstrate that his infractions were so severe as to warrant the ultimate sanction of dismissal despite his previously unblemished record. See Carter, supra, 191 N.J. at 484. The subordination, standing alone, and without the additional office of falsifying police reports, would have been sufficient to warrant dismissal. Refusal to carry out a valid order of a superior is "subversive of discipline" and generally warrants dismissal. Massey, supra, 93 N.J. Super. at 323. Thus, the penalty of removal was not excessive but, to the contrary, was appropriate and justified.
Finally, we turn to Torres's claim that the procedures the Department used on December 31, 2004, and January 12, 2005, when Internal Affairs officers asked him to submit a statement violate Attorney General guidelines on the questioning of police officers.*fn1 He points to three violations, the Department's failure to: (1) notify him that was a target of an internal affairs investigation before it required him to provide the two statements; (2) interview him prior to issuing the PNDA; and (3) thoroughly investigate the events before filing charges. His arguments lack sufficient merit to warrant extended discussion.
R. 2:11-3(e)(1)(E). We add only the following comments. Torres's claim that a further investigation and an interview of him would have resulted in a decision not to file the PNDA is meritless. All of the facts Torres alleges were overlooked at the departmental level were fully aired before the ALJ and properly rejected. As to his claim that Longo erred by failing to inform him before he gave the December 31, 2004 statement that he was the target of an investigation,*fn2 we note that Torres knew that Longo worked for Internal Affairs and accordingly Torres no doubt surmised that he was under investigation. Thus, although there may have been a technical violation, any such violation did not create prejudice to Torres's legal position.