On appeal from a Final Administrative Decision of the Merit System Board, DOP Docket No. 2005-2979.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges A. A. Rodríguez and Collester.
The City of Jersey City (City) appeals from the decision of the Merit System Board (Board) modifying the penalty imposed by the City against Detective Randy Sandifer from termination of employment to a six-month suspension without pay for his failure to give a statement under oath to a Hudson County Assistant Prosecutor during a criminal investigation.
Following the attack on the World Trade Center on September 11, 2001, Jersey City police officers rendered emergency assistance. They were compensated for overtime work by monies the City received from the Federal Emergency Management Administration (FEMA). Subsequently, a FEMA audit required the City to refund $1.5 million, and disclosures of irregularities in officers' statements of overtime required further payback to FEMA. City Police Chief Ronald Buonocore assigned Captain Peter Nalvach to conduct an internal investigation of overtime abuse. Nalvach testified at the subsequent hearing before the administrative law judge (ALJ) that he had conversations and correspondence with the Office of the United States Attorney leading him to conclude that there would be no federal criminal investigation of the matter. He then met with Hudson County Assistant Prosecutor Peter Stoma and was told that when he interviewed members of the police department, he was to contact the prosecutor's office in order to obtain immunity if necessary. Nalvach met with Sandifer on December 8, 2004 to advise that he had to appear at the Hudson County Prosecutor's Office to be interviewed on the overtime matter. Nalvach testified that he told Sandifer that he should consider hiring an attorney because of possible criminal ramifications.
Sandifer had a different recollection of the conversation. He said Nalvach told him that he was not a target of a criminal investigation but could have an attorney with him during the interview if he so desired. Sandifer also testified that he suspected he was being "set up." He said there were internal disputes within the police department due to acrimony between Chief Buonocore and Police Director James Carter, and he had been Carter's first assistant and right-hand man before Chief Buonocore reassigned him. Sandifer explained that before Buonocore was appointed chief, he and Carter met with investigators of the Division of Criminal Justice concerning a possible criminal investigation of Buonocore. He said that as a result Buonocore later retaliated against him and other officers allied with Carter. Sandifer said he retained Ty Hyderally, Esq., an attorney specializing in employment law, and filed a tort claims notice alleging mistreatment by the chief and a hostile work atmosphere. Sandifer also said he heard from an inspector of the Internal Affairs Unit that the investigation into overtime ordered by Buonocore was focused on officers loyal to Carter.
After being told he was to be interviewed on the matter, Sandifer spoke with Michael Brucki, a criminal defense attorney, who agreed to represent him. Apparently, Hyderally also continued his representation of Sandifer, for both he and Brucki showed up at a December 15, 2004, meeting at the Hudson County Prosecutor's Office. At that time, Assistant Prosecutor Stoma told Sandifer in the presence of his attorneys that he was a target in the investigation of overtime abuse, and that he was to receive Miranda*fn1 warnings and would be given use immunity if he invoked his privilege against self-incrimination. Both Hyderally and Brucki testified before the ALJ that they believed they had been misled because they had not been told in advance that Sandifer was a target of a criminal investigation.
Brucki testified he asked Stoma what kind of immunity would be given to Sandifer, and Stoma replied, "Well, I can give him Hudson County immunity." When Brucki asked whether the immunity covered the Office of Attorney General or United States Attorney, Stoma replied, "Absolutely not." Brucki and Hyderally told Stoma that in their opinion the immunity being offered was insufficient. Brucki and Hyderally testified that Sandifer nonetheless wanted to go forward because he believed he had done no wrong. Both attorneys then told him that if they felt the questioning was going into unrelated criminal matters they would halt the proceedings, and Sandifer agreed to follow their advice.
When the interview began, Sandifer was placed under oath and given his Miranda warnings. He was told that he would be asked questions concerning a criminal investigation by the prosecutor's office into overtime abuses of the Jersey City Police Department. Sandifer then declined to give a statement, and he was given a form entitled "the Hudson County Prosecutor's Office Use Immunity Grant Advisement Form." Sandifer was told that he was receiving use immunity and it was his duty to answer questions relating to the conduct of his office or be subject to administrative charges and removal under New Jersey statutes as well as the rules and regulations of the Jersey City Police Department. On advice of his attorney, Sandifer declined to make any further statement, and the proceedings ended.
Two days later, Sandifer received a preliminary notice of disciplinary action charging him with violation of departmental Rule 3:110, failure to cooperate with outside agencies, N.J.A.C. 4A:2-2.3(a)(6), conduct unbecoming a public employee, Rule 3:155(8), and willful violation of statutes, rules and regulations of the State of New Jersey and Civil Service. He was immediately suspended pending a departmental hearing, which was held on January 11, 2005. The hearing officer upheld the charges, and Sandifer was served with a final notice of disciplinary action terminating him from the Jersey City Police Department. Sandifer appealed to the Board, and the matter was referred to the Office of Administrative Law (OAL), which directed the hearing before an Administrative Law Judge (ALJ).
Assistant Prosecutor Stoma testified it was his understanding that the Hudson County Prosecutor's Office could grant use immunity to a public employee and that the employee was required to answer questions or be subject to administrative penalties. He said that once a decision was made to grant use immunity, the public employee was so advised. He added that the use immunity he granted was in effect "part and parcel the same thing" as the protection afforded by Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17, L.Ed. 2d 562 (1967), which proscribes the use of a public employee's compelled statement in a subsequent criminal proceeding.
In his decision, the ALJ agreed with the prosecutor that any statement coerced under a forfeiture of employment statute was barred in any subsequent criminal proceeding regardless of whether immunity was granted. See N.J.S.A. 2A:81-17.2(a)(2). Nonetheless, it was Sandifer's duty to testify as to the matters relating to the conduct of his office or be subject to removal. He added that, "While counsel for the appellant can not be faulted for their zeal with which they protected their client, the state of the law as it related to use immunity seems to indicate that they were both overly cautious in the advice they provided."
The ALJ further held that a police officer is not excused from a finding of conduct unbecoming by relying on advice of counsel. See In re Emmons, 63 N.J. Super. 136, 141 (App. Div. 1960). He also found that Sandifer's refusal to give a statement to the prosecutor violated the departmental rule mandating cooperation with outside law enforcement agencies. However, the ALJ concluded that the City had failed to establish by a preponderance of the evidence that Sandifer willfully violated rules, regulations and statutes governing public employees. He found that neither Sandifer nor his attorneys had a meaningful understanding of Garrity or the scope of use immunity and that the lack ...