October 9, 2008
IN THE MATTER OF SERGEANT VINCENT CARPENITO BADGE NO. 4861
On appeal from the final decision of the Superintendent of the Division of New Jersey State Police, Docket No. 2005-723/2005-0724.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 10, 2008
Before Judges Cuff, Fisher and C.L. Miniman.
In this appeal from a final agency decision, which dismissed Sergeant Vincent Carpenito from the Division of State Police, we reject all Carpenito's arguments -- including his contention that the findings that he left his post while on duty and later gave inconsistent versions to investigators were against the weight of the evidence -- because the Superintendent's findings were based on Carpenito's admissions. We, thus, affirm.
On March 24, 2006, Carpenito was charged with five disciplinary infractions of the rules and regulations of the Division of State Police: (1) abandonment of his post and failure to report his absence to his superior, in violation of New Jersey Police Rules and Regulations, Article V, § 13; (2) behavior "in an official capacity to the personal discredit of the member or to the discredit of the Division," id. at Article VI, § 2(a); (3) behavior "in an unofficial or private capacity to the personal discredit of the member or to the discredit of the Division," id. at Article VI, § 2(b); (4) making a false or misleading official statement or intentional misrepresentation of fact, id. at Article V, § 15; and (5) failure to obey a lawful order, specifically displaying "less than complete candor" during the investigation, id. at Article IV, § 3(a); N.J. State Police Standard Operating Procedure B-10; Internal Investigative and Disciplinary Procedures, § F, ¶ 3.
The case was transferred to the Office of Administrative Law as a contested matter. A seven-day hearing was conducted by an administrative law judge (ALJ), who issued an initial decision on July 5, 2007, finding Carpenito guilty of the charges against him and recommending termination of employment.
Colonel Joseph R. Fuentes, the Superintendent of the Division of State Police, adopted those findings of the ALJ that were based upon Carpenito's admissions and other undisputed facts, as revealed by his final written decision of August 16, 2007. As a result, he found, with the exception of the sexual assault referred to in the specifications, that the charges had been substantiated and, due to the egregious nature of the misconduct, dismissed Carpenito from the Division.
Carpenito appealed to this court, raising the following arguments for our consideration:
I. THE FINAL DECISION BY THE SUPERINTENDENT OF THE DIVISION OF STATE POLICE WAS ARBITRARY AND CAPRICIOUS AND MUST BE REVERSED OR REMANDED WHERE THE FINAL DECISION (i) SUPPRESSED THE TRUTH BY ACCEPTING THE DECISION OF THE ADMINISTRATIVE LAW JUDGE THAT RELIED UPON PRIOR INCONSISTENT STATEMENTS MADE BY THE ALLEGED VICTIM WHO WAS IMPROPERLY ALLOWED TO AVAIL HERSELF TO THE PROTECTIONS OFFERED UNDER THE FIFTH AMENDMENT AT THE TIME OF THE HEARING[,] (ii) DENIED THE APPELLANT A FAIR HEARING BY CAUSING THE APPELLANT TO SUFFER A LOSS OF HIS RIGHT TO CONDUCT CROSS EXAMINATION OF THE ALLEGED VICTIM WHO WAS A CRITICAL WITNESS, (iii) ACCEPTED THE INITIAL DECISION THAT WAS AGAINST THE WEIGHT OF THE EVIDENCE[,] AND ([iv]) ACCEPTED EVIDENTIAL RULINGS OF THE INITIAL DECISION THAT IMPROPERLY ADMITTED AN UNDULY PREJUDICIAL TAPED TELEPHONE RECORDING INTO EVIDENCE.
II. THE FINAL DECISION BY THE SUPERINTENDENT OF THE DIVISION OF STATE POLICE WAS ARBITRARY AND CAPRICIOUS AND MUST BE REVERSED WHERE THE SUPERINTENDENT REMOVED THE APPELLANT FOR CAUSE WITHOUT IMPOSING PROGRESSIVE DISCIPLINE AND STATEMENTS OF THE ALLEGED VICTIM AND OTHER UNRELATED INCIDENTS WITH LOCAL POLICE THAT WERE INITIATED BY THE APPELLANT'S WIFE WHO ASSERTED HER RIGHTS UNDER THE FIFTH AMENDMENT AND WHO REFUSED TO TESTIFY OR ALLOW APPELLANT AN OPPORTUNITY FOR CROSS-EXAMINATION.
In examining these arguments, we are initially required to consider the standard of review, which, in this circumstance, is limited. We must give due regard to an administrative agency's findings of fact and expertise in the field upon which it relied to support its decision. In re Taylor, 158 N.J. 644, 655-58 (1999); Close v. Kordulak Bros., 44 N.J. 589, 599 (1965). In addition, a "strong presumption of reasonableness" attaches to agency decisions. In re Vey, 272 N.J. Super. 199, 205 (App. Div.), aff'd, 135 N.J. 306 (1994). Accordingly, we will not disrupt an agency's final decision unless the record reveals that the decision was arbitrary, capricious, or unreasonable, or that it violated legislative policies expressed or implied in the statutes governing the agency. Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963).
Having applied these standards, and having carefully examined the record in light of the arguments presented, we affirm.
Carpenito chiefly argues that the evidence was insufficient to support the Superintendent's findings that he engaged in conduct that warranted discipline; he also argues that the sanction of dismissal was inconsistent with the general policy of progressive discipline. We reject these two contentions.
Although the record contains extensive testimony and other evidence concerning what transpired between Carpenito and his wife during the relevant time period, we have no need to consider any of the facts other than those, for which there was ample support, that the Superintendent relied upon in rendering his final decision in this matter. Indeed, the facts cited by the Superintendent are essentially those provided by Carpenito himself.
The record reveals that the catalyst for the conduct in question was Carpenito's stormy marriage.*fn1 The particular events in question were set in motion on August 6, 2005. At that time, Carpenito was working at his second job as a realtor when his wife informed him that she was going on a boat with friends. That afternoon, Carpenito received a telephone call, which revealed his wife was seen on a dock in Bayville "[k]issing some guy, sitting on his lap." Carpenito testified that when he heard this he thought, "this is my out, she's got a boyfriend, it's going to make it easier for me to get out [of the marriage]." Carpenito's wife did not return home that night.
The next day, Sunday, August 7, 2005, Carpenito was on duty at the Hamilton Communications Center; at that time he was acting as the "immediate supervisor" of civilian dispatchers who receive 9-1-1 calls. He testified that he had not seen his wife during that day, although he acknowledged that he "may have spoken to her." Lieutenant Ronnie Martin, who had been engaged to investigate, stated that Carpenito told him how he had received "a call from a friend who indicate[d] that they [sic] saw his wife at a . . . dock of some sort and a male was sitting on her lap kissing her," and when she did not return home that evening, and because Carpenito "had not talked to his wife and he was concerned about her safety and . . . wanted to make sure things were okay," Carpenito went home to confront her about the previous night." Carpenito acknowledged that he "decided to go home and see if [his wife] was, in fact, home" and left the police station around 10:30 or 11:00 p.m., notwithstanding that he was on duty.
Carpenito's wife later filed a complaint with local police. She then asserted that Carpenito "had come home while on duty [on August 7, 2005,] and handcuffed her to the bed and performed sexual acts against her will as she was handcuffed to the bed." She also then stated that she had not initially reported the assault to the police because "she was embarrassed about the incident and about the fact that he was a police officer."
Carpenito provided a different version. He testified that when he went home, he "went upstairs and lo' and behold, there she was . . . watching TV, laying in bed." He acknowledged that they quarreled about her whereabouts the previous evening and about her alleged flirtation with another man at the dock in Bayville. Carpenito then told her, "If you want to be single, you're going to be single," and left to return to duty. He denied having handcuffed his wife or acting violently or threatening toward her.
Without question there was a dispute regarding what precisely transpired between Carpenito and his wife on August 7, 2005. Indeed, much of the evidence adduced during the ALJ's hearing related to the marital relationship and events during the times in question, which play only a minor role in the issues put before the Superintendent. We have provided only an outline of those events because, like the Superintendent, we deem it far more important to consider that Carpenito engaged in some of this conduct when he should have been on duty. That is, of critical importance is the fact that Carpenito admitted to leaving his post without authorization on August 7, 2005. Of additional importance is the fact that Carpenito acknowledged during cross-examination that he told Lieutenant Martin that he had not spoken to his wife on August 7, 2005, but that at the hearing, he admitted that he had spoken to her prior to leaving work to drive home. Thus, although there was a dispute or uncertainty regarding what precisely transpired between husband and wife on the various occasions referred to in the record, there was no dispute that Carpenito was absent from duty without leave on August 7, 2005, and that he spoke untruthfully to the officer who investigated the matter.
A similar, admitted dereliction of duty occurred the following day, August 8, 2005, when Carpenito was on duty in Hamilton during the night shift. During that shift, Carpenito made numerous telephone calls to his wife, but she continually hung up on him. Carpenito again left work without telling his supervisor and went home to confront his wife. Although admitting that he was absent from duty on two occasions on August 7 and 8, 2005, Carpenito testified that, "[f]ortunately, there was nothing that needed my assistance or my involvement" on either night.
Because it played a role -- albeit a small role -- in the Superintendent's decision, we lastly make mention of an event that occurred on August 28, 2005. In complaining to local police, Carpenito's wife stated that, on August 28, 2005, Carpenito placed her in a headlock, which produced a bruise on her arm. The local investigating officer spoke to Carpenito, who acknowledged that he and his wife engaged "in a verbal argument" on the evening of August 28, 2005, and that "[h]e was trying to hug her and to not let her leave the room, so he was trying to restrain her from leaving the room." Carpenito admitted at trial that he made these statements. And photographs of the bruise, about the size of a thumb print, were introduced into evidence. Carpenito's wife described to the investigating officer that Carpenito was then "angry," that he had been drinking, and that he made other threatening statements. On the other hand, Carpenito asserted that, after working on August 28, 2005, from approximately 5:30 a.m. until 5:30 p.m., he went to have something to eat, during which he received several angry phone calls from his wife. He claimed she was "out of her mind because she didn't know where" he was. He denied that he was drunk, assaulted his wife, or put her in a headlock.
Lieutenant Martin testified that he investigated the matter and determined that Carpenito abandoned his post, without notifying his supervisors, for about two hours on August 7, 2005, and for about three hours on August 8, 2005. Sergeant Etzel of the State Police also testified that when a floor manager at Hamilton is absent, "there is no one" to assume the responsibilities and duties for which that manager is responsible, including the oversight of civilian dispatchers, who receive emergency and police calls for their designated geographic area.
In his decision, the Superintendent found that, with the exception of the alleged sexual assault, the charges and specifications drawn against Carpenito should be sustained through the application of what he referred to as the "following, irrefutable, evidential proofs":
Relative to the events of August 7, 2005, Sergeant Carpenito's admission to retired Division Lt. Ronnie Martin during a taped interview on January 12, 2006 that he went AWOL (absent without authority) as he had no contact with [his wife] on August 7, 2005, was concerned about her whereabouts, and wanted to know whether she was okay; cell phone records indicate the contrary, that [Sergeant Carpenito] and [his wife] spoke several times at length that evening prior to his going AWOL;
Sergeant Carpenito's admission on an authenticated sound recording taped on August 8, 2005, that the act of handcuffing his wife to the bedpost the night before, on August 7, 2005, was "playing around"; Sergeant Carpenito's admission on the same taped sound recording that he left a trash receptacle for his wife to urinate in while she was handcuffed;
Sergeant Carpenito's admitted abandonment of his post on August 8, 2005 because he wanted so badly to get out of the marriage, that he hoped he would find her with another man; Sergeant Carpenito's statement to Howell Police Officer Andrea Tozzi that on the night of August 28, 2005, he was out getting nachos and beer and when he came home he "hugged" his wife during an argument in an attempt to restrain her from leaving the bedroom; Sergeant Carpenito later denied this statement upon being questioned by Division Investigator, Lt. Ronnie Martin; Sergeant Carpenito's statement to the Howell Police Department that he "did not mean to leave a bruise on her arm," (and Howell Police Department's photograph of the bruise).
As is readily apparent, these particular findings were based on Carpenito's own statements. Despite his contention that the evidence provided by Carpenito's wife was unreliable, and not subject to cross-examination because of her assertion of her Fifth Amendment rights, the fact remains that the Superintendent placed no reliance on her testimony. Instead, the Superintendent stated that he had given no weight to her evidence and relied only on Carpenito's admissions and statements, which he found sufficient to conclude that Carpenito "abandoned his post, handcuffed his wife, and lied about the circumstances of the same during the Division internal investigation."
Carpenito concedes that he made the admissions relied upon by the Superintendent and that he twice abandoned his post. Carpenito also acknowledged in a taped conversation that he handcuffed his wife and that he gave contradictory stories to investigators. His argument that he was deprived of the right to cross-examine his wife because of her assertion of her Fifth Amendment right is of no consequence, not only because Carpenito's own admissions supported the Superintendent's conclusions, but also because any further testimony from his wife, whether credible or not, would not have contradicted the concession that Carpenito twice went absent without leave and gave inconsistent versions to investigators.
Carpenito's own statements and admissions warranted the Superintendent's conclusion that he had violated the standards of conduct that were charged. We find no reason to question the soundness of the Superintendent's findings.
Carpenito also argues that the policy of progressive discipline warranted a sanction less severe than removal from the force. We reject this. The Superintendent was entirely justified in terminating Carpenito's employment due to the seriousness of the misconduct. In the exercise of his authority in such matters, see In re Carberry, 114 N.J. 574, 578 (1989), the Superintendent quite properly concluded that Carpenito's abandonment of his post alone was enough to justify termination from employment because he left civilian dispatchers without supervision, and thereby, as the Superintendent stated, "jeopardiz[ed] the health, safety and welfare of the citizens of the central region of New Jersey as well as public safety personnel deployed to serve them."
Progressive discipline is a policy meant to deal with situations where "numerous occurrences [warranting discipline] over a reasonably short space of time . . . evidence an attitude of indifference amounting to a neglect of duty" and that, while an employee's disciplinary record "cannot . . . be utilized to prove a present charge[,] . . . it may be resorted to for guidance in determining the appropriate penalty for the current specific offense." Town of West New York v. Bock, 38 N.J. 500, 522-23 (1962). In other words, the more instances in which an employee is disciplined for actions committed in the past, the greater the punishment imposed in the present. Regardless, the Superintendent properly recognized that "some disciplinary infractions are so serious that removal is appropriate notwithstanding a largely unblemished prior record." In re Carter, 191 N.J. 474, 484 (2007) (addressing a circumstance where a police officer was found sleeping on duty and was subsequently dismissed from employment for that action, in consideration of the offense and his previous disciplinary record).
More importantly, the Court in Carter made clear that courts "should take care not to substitute their own views of whether a particular penalty is correct for those of the body charged with making that decision." Id. at 486. "[T]he question for the courts is 'whether such punishment is so disproportionate to the offense, in the light of all the circumstances, as to be shocking to one's sense of fairness.'"
Id. at 484 (citation and internal quotes omitted). In reviewing such a matter, it must also be recognized that a police officer is a special kind of public employee. His primary duty is to enforce and uphold the law. . . . He represents law and order to the citizenry and must present an image of personal integrity and dependability in order to have the respect of the public. [Id. at 486 (citing Twp. of Moorestown v. Armstrong, 89 N.J. Super. 560, 566 (App. Div. 1965), certif. denied, 47 N.J. 80 (1966)).]
In discharging Carpenito from the force, the Superintendent considered that police had responded on a number of occasions to Carpenito's residence due to alleged domestic disputes, that Carpenito had been previously suspended for five days for falsification of a time sheet, and that "[s]everal disciplinary actions were pending during 2006, while the hearing was being conducted." The Superintendent stated:
Sergeant Carpenito admits that he was absent without leave, admitting that "it was a mistake, I accept it, I take responsibility for it, but let the punishment fit the infraction." . . . When viewed in the totality of the circumstances, Sergeant Carpenito's abandonment of post to perpetuate a marital disagreement, ultimately handcuffing his wife to a bed and degrading her by forcing her to urinate in a wastebasket, is particularly egregious. That he lied about it during the Division investigation is even more insulting.
I am convinced that Sergeant Carpenito cannot be afforded the benefit of the doubt using progressive discipline, as his exercise of good judgment as a law enforcement officer has been fatally compromised. See, e.g., Henry v. Rahway State Prison,  N.J. 571 (1980) (misconduct is considered severe enough to bypass the progressive disciplinary scheme where the employee's position involves public safety and the misconduct involves a risk to persons or property). I find Sergeant Carpenito incapable of rendering the service required by his oath, and therefore, termination of his position is necessary and appropriate.
These findings are firmly based upon Carpenito's admissions and are, thus, entitled to our deference. As a result, we find no basis, after our careful review of the record, to second guess the conclusions drawn by the Superintendent, which were based on his expertise and authority, that Carpenito's "exercise of good judgment as a law enforcement officer has been fatally compromised," that the application of progressive discipline is not appropriate in light of Carpenito's egregious conduct, and that dismissal was required.