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In re Disciplinary Action of Smith


July 23, 2008


On appeal from the Superior Court of New Jersey, Law Division, Civil Part, Gloucester County, Docket No. L-606-05.

Per curiam.


Submitted: April 21, 2008

Before Judges Collester, C.S. Fisher and C.L. Miniman.

Appellant Sgt. Jacqueline Smith (Smith) appeals from a de novo judgment of the Law Division concluding that she violated the Rules and Regulations (Rules) as well as the Standard Operating Procedures (SOPs) of respondent East Greenwich Township Police Department (Department) and imposing two concurrent thirty-day suspensions. We affirm.

At 9:00 p.m. on July 4, 2003, Smith was at the police station starting her work as shift supervisor while two patrol officers on her squad, John Seas and William Crothers, were on patrol. At 9:24 p.m. Seas stopped a vehicle on Matuna Road for a traffic violation and discovered that there was an active $2500 arrest warrant against the driver. Seas arrested the driver and placed him in his car to take him to the station. Smith was in contact with Seas over the radio and learned about the arrest.

In the meantime, at approximately 9:15 p.m. that night, Crothers encountered a line of cars partially blocking East Cohawkin Road at Jessup Mill Road to watch a fireworks display. Crothers instructed the drivers to clear the road before proceeding to the source of the fireworks at 309 Barbara Drive. He found a party at which guests were drinking and setting off fireworks. Crothers located the homeowner and told him to stop setting off the fireworks and turn them over to him. One of the guests helped Crothers gather the fireworks to be confiscated. As this was happening, other guests became angry at Crothers and shouted profanities at him. Crothers radioed for help, but Seas was occupied and there was no response from Smith, who explained later that she did not hear the call. One of the hosts, Rosemary Lee, was heard to say that she would "get Jackie out here." This was a reference to Smith with whom Lee was friendly. Crothers returned to the station with the fireworks, making no arrests.

Lee apparently called the police station because the county dispatcher contacted Smith to tell her that Lee had called to ask her to come to the house on Barbara Drive and that it was not an emergency. Smith suspected that it was related to Crothers's action in confiscating the fireworks at the party. She told dispatch that it was July Fourth in an admittedly "comical" manner. Smith left the station at approximately 9:33 p.m. to help Seas. She spoke to him on the radio to let him know that she was on her way, but Seas replied that he had already made the arrest and was heading back to the station. Smith mentioned to Seas that Crothers had confiscated her friend's fireworks and suggested that he had overreacted. Instead of returning to the station to help Seas with the prisoner, she drove to 309 Barbara Drive. Smith spoke to Lee for a few minutes without exiting her car. Lee complained that her fireworks had been confiscated. By the time Smith returned, Seas and the prisoner had been in the station for approximately four minutes. Without her supervision, Seas violated police procedure by not using the "sallyport" to bring the arrestee into the police station, by handcuffing him in front of his body and by processing the arrestee at Seas's desk rather than in the cell block.

Smith spoke with Crothers at the station and told him that he should not have confiscated fireworks at a Fourth of July party. Crothers then wrote up a report describing his encounter at 309 Barbara Drive. He submitted it to Smith and she asked to speak to him about it. Smith asked Crothers to alter the report to remove references to the partygoers' intoxication and use of profanity. Crothers said that he made the changes, believing Smith's request to be an order. Smith acknowledged that she spoke with Crothers about the incident but denied that she asked him to alter the report.

Smith received multiple disciplinary charges stemming from complaints by Seas and Crothers. The police department conducted an internal investigation and on September 17, 2003, Smith received eleven administrative complaint forms alleging thirty-five violations of the Rules and SOPs.

The hearing officer, who was a municipal court judge, presided over a hearing which began on July 6, 2004, continued for eight additional days and ended on October 27, 2004. On February 23, 2005, the hearing officer issued a decision sustaining only two of the charges: violating the Cell Block Facility Management Policy, SOP 39:4-10.2(b), and falsifying a report in violation of Rule 5.3.3. The first violation found by the hearing officer was based on Smith deviating from her obligation to assist a subordinate officer with an arrest, instead driving to respond to a call from Lee. The second violation was based on Smith pressuring Crothers, a subordinate officer, to alter his report of the incident with Lee. On March 15, 2005, the hearing officer imposed concurrent ninety-day suspensions for each violation. Smith appealed this decision to the Law Division on March 31, 2005.

On October 3, 2006, the Law Division judge conducted a de novo hearing pursuant to N.J.S.A. 40A:14-150. He issued a letter opinion on May 4, 2007, sustaining both of the charges but reducing the penalty to concurrent 30-day suspensions.

First, the judge found that Smith's conduct on July 4, 2003, violated SOP 39:4-10.2(b), which requires a patrol supervisor shift commander to assist an arresting officer and oversee "all aspects of prisoner and detainee custody while a prisoner or detainee is in headquarters." The judge determined, based on Smith's own testimony, that she knew Seas had made an arrest and that he was returning to the police station with the arrestee, but she was not present when Seas arrived at the station. By detouring to speak to Lee when Smith knew that Seas was returning with a prisoner to the station, she violated the SOP.

Second, the judge found that Smith's conduct violated Section 5.3.3 of the Department's Rules. This rule forbids officers from knowingly falsifying a report or causing false, inaccurate or improper information to be entered in a report. The judge based this decision on Seas's testimony in which he stated that Smith had apologized to Crothers for not warning him about the party in advance and explained that she did not want to have to sign criminal complaints. Further, the judge cited to Smith's testimony in which she acknowledged telling the county dispatcher that it was July Fourth in a "comical" manner. The judge concluded that this was evidence of a concerted effort to influence Crothers's report, even if it was true that she never made an explicit request. He concluded by denying Smith's allegation that the accusations against her had a discriminatory or retaliatory motive.

As to the discipline imposed by the hearing officer, the judge considered Smith's ninety-day suspensions and reduced the punishment to two thirty-day unpaid suspensions to run concurrently. He noted that Smith had some prior disciplinary history, but found that it was minor and reduced the suspension "[i]n light of her previous training and work experience."

Smith then filed a motion for reconsideration and the judge conducted a hearing on June 22, 2007. The judge issued an order declining to modify the substance of his prior decision, but he amended one paragraph to limit his findings to the present action. This appeal followed.

On appeal, Smith contends that her conduct was not a substantial violation of SOP 39:4-10.2(b). First, she emphasizes that Seas was only unassisted in the station for four minutes. Second, she points out that it was within her responsibilities to respond to a civilian complaint. Third, although Seas violated police procedure in her absence by not using the sallyport, handcuffing the arrestee's hands in the front and not processing him in the cell block, Smith contends that each of these violations was minor or excusable. She notes that it was common practice for officers to process prisoners at their desks and on July Fourth the sallyport was blocked by the township speed trailer.

Smith also contends that the finding of a violation of Section 5.3.3 of the Department's Rules lacked a sufficient evidentiary basis. First, she contends that there had not been an arrest for use of illegal fireworks in the collective memories of supervisory officers who testified at the hearing. Because an arrest would be so unlikely, Smith contends, she had no motive to falsify the report. Second, Smith points out that no copy of an original, unaltered report has been offered into evidence. Third, Smith points to testimony at her disciplinary hearing that demonstrates the July Fourth party was not out of control and the fireworks were used safely.

Finally, Smith argues that the penalty she received, even after being reduced, was excessive. She contends that the punishment is inconsistent with the policy of progressive discipline, which requires consideration of a person's entire disciplinary record. Since Smith's disciplinary record is light, she contends, the thirty-day suspensions were disproportionate.

The scope of our review is narrow. Although the Law Division is authorized to conduct a de novo review of a police disciplinary hearing, we may not disturb those determinations unless they were "'arbitrary, capricious or unreasonable' or '[un]supported by substantial credible evidence in the record as a whole.'" In re Disciplinary Procedures of Phillips, 117 N.J. 567, 579 (1990) (quoting Henry v. Rahway State Prison, 81 N.J. 571, 580 (1980). The trial judge's discretionary decisions are to be afforded "substantial regard." Cosme v. Borough of E. Newark Twp. Comm., 304 N.J. Super. 191, 202 (App. Div. 1997), certif. denied, 156 N.J. 381 (1998). Of course, our review of "whether or not a trial judge has pronounced judgment agreeably with the applicable rule of law" is plenary. Id. at 203. Smith contends that the evidence in the record does not support either of the violations found by the Law Division. We disagree.

The inconsequential impact of Smith's violations is irrelevant. The harm or lack thereof does not undermine the sufficiency of the evidence or make a finding of a violation arbitrary, capricious or unreasonable. SOP 39:4-10.2 provides in pertinent part as follows:

To ensure officers handle prisoner and detainees correctly and minimize the chances of an escape, specific areas of responsibilities have been outlined as follows:

(b) Patrol Supervisor/Shift Commander: when aware that an arrest is about to be effected or has been effected, respond to the scene to assist the arresting officer and check to ensure that proper procedures are being followed, whenever possible. The Shift Commander is also charged with the security of police headquarters.

1. The Shift Commander is responsible for overseeing all aspects of prisoner and detainee custody while a prisoner or detainee is in headquarters.

Rather than perform the requisite supervision, Smith took a non-emergency detour on her drive back to the station that resulted in Seas being unsupervised with a prisoner, albeit for a very brief period of time. Clearly, this detour violated SOP 39:4-10.2(b).

As to the violation of Rule 5.3.3, that Rule provides:

5.3.3 Reports. No employee shall knowingly falsify any report or cause to be entered any inaccurate, false, or improper information on records of the Department. No employee shall alter, dispose or remove any report without the express permission of the Chief of Police. Any corrections to reports shall be made by drawing a single line through the error and making the correction. The employee making the correction shall initial the correction adjacent to the line corrected.

It is immaterial whether Crothers's report contained or did not contain meritorious offenses by Smith's friends. What was at issue was whether or not Smith improperly influenced Crothers to modify his report. Even if it is true that the crime at issue was likely to have been ignored or that the activities at issue presented no danger, it does not make the judge's finding that Smith caused an alteration in the report, which was a violation of the Rule, arbitrary, capricious or unreasonable. The judge's conclusions respecting both charges were not inconsistent with the substantial, credible evidence in the record. Even in the absence of an original, unaltered report, the judge was entitled to rely on the other officers' testimony, as well as Smith's admissions.

Smith also contends that the thirty-day suspensions were excessive. Once again, the scope of our review of the punishment is limited to whether the punishment was "arbitrary, capricious or unreasonable or it was not supported by substantial credible evidence in the record as a whole." Steinel v. Jersey City, 193 N.J. Super. 629, 635 (App. Div. 1984), aff'd 99 N.J. 1 (1985). The trial court exercises "decisional discretion," but it "must be exercised in conformity with applicable rules of law grounded either on clear statutory declarations or upon . . . policy considerations." Cosme, supra, 304 N.J. Super. at 203.

The Supreme Court articulated the principle of progressive imposition of penalties in West New York v. Bock, 38 N.J. 500 (1962). In that case, the Court approved dismissing employees based on habitual conduct, consisting of numerous incidents over a short period of time. Id. at 522. But the Court held that the employee at issue should not have been punished based on prior incidents that happened long before or lacked evidence. Id. at 524. Also, a person must be notified that he or she will be charged as a habitual offender. Id. at 522. Similarly, in Steinel, supra, 193 N.J. Super. at 635, we affirmed an administrative law judge's reversal of a business administrator's decision to fire an engineering aide, imposing instead only a six-month suspension because the employee's prior violations were minor and there was "no intentional derogation of duty." Thus, an employee's punishment should reflect his or her disciplinary history and fit the violation.

Smith's prior disciplinary record includes several violations stemming from an accusation that she wrote inaccurate information in her patrol log from October 12 to November 10, 1999, resulting in an eight-day suspension. The hearing officer for the 2003 violations reviewed Smith's disciplinary record and concluded that, although her misconduct was not habitual, it merited a "longer" suspension not to exceed six months. In his de novo review, the judge looked at the record and decided that the sentence should be reduced. The judge gave sufficient consideration to Smith's disciplinary record and agreed that her record merited reducing but not eliminating the discipline.

Smith also contends that because the violation of S.O.P. 39:4-10.2(b) was harmless, she should have received only an "oral counseling reprimand." As for the violation of Rule 5.3.3., Smith acknowledges that the Department's Rules classify it as an "A" violation, carrying a range of punishment from suspension to dismissal. Smith reiterates that the information she caused to be removed from the report was unlikely to have resulted in an arrest and conviction and should have merited a shorter suspension. The issue is not whether Lee would have been convicted of some offense. Rather, the issue was Smith's willingness to violate the Department's Rules and the propriety of the punishment.

In light of Smith's prior suspension and the nature of the violations of the Department's Rules and SOPs, we find no mistaken exercise of discretion in the judge's determination to suspend Smith for thirty days for each offense to run concurrently. That determination finds substantial evidential support in the record.

Because we affirm the findings that Smith violated the Rules and SOPs of the Department, we need not address her argument that she is entitled to back pay under N.J.S.A. 40A:14-151 as the issue is moot.



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