On appeal from the Superior Court of New Jersey, Law Division, Hunterdon County, Docket No. L-306-07.
The opinion of the court was delivered by: Yannotti, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 23, 2008
Before Judges Wefing, Parker and Yannotti.
Defendants appeal from a final judgment entered by the trial court on August 20, 2007, which reversed a decision by the City Council of the City of Lambertville removing plaintiff from his position as a police officer and ordered plaintiff's reinstatement. Defendants also appeal from an order entered on September 20, 2007, which denied their motion for reconsideration and awarded plaintiff attorneys' fees. For the reasons that follow, we affirm.
The City's police department has ten full-time officers and five to six civilian employees. Bruce Cocuzza is the City's civilian Police Director, with administrative responsibility for the day-to-day operations of the department. Plaintiff was a sergeant first class and, as such, he was the department's highest ranking officer. Since 2001, plaintiff served as the department's Terminal Agency Coordinator (TAC) for the National Crime Information Center (NCIC) system, which is maintained by the Federal Bureau of Investigation and contains a wide array of law enforcement information.
On September 29, 2006, the City filed a preliminary notice of disciplinary action against plaintiff, charging him with: 1) conducting unauthorized and improper employee background investigations using the NCIC computer terminal, in defiance of a direct order by Cocuzza that no such investigations would be undertaken without his approval; 2) committing an act of insubordination by directing another officer to disregard Cocuzza's instructions regarding "a major incident;" 3) engaging in conduct subversive to the good order and discipline of the department by conducting the aforementioned background checks without the consent of the affected employees; 4) violating the department's policies and procedures governing background investigations; 5) neglect of duty for failing to ensure that an NCIC terminal operator had been "properly screened prior to being granted access to the system;" 6) failing to forward a serious complaint to the Internal Affairs Unit; and 7) engaging in conduct unbecoming a public employee. The notice indicated that plaintiff could be removed for, among other things, neglect of duty, insubordination, or willful violation of the department's rules and regulations. With the Mayor presiding, the Council conducted evidentiary hearings on the charges on January 9, 2007, February 13, 2007, and March 6, 2007.
Cocuzza testified that, in August 2006, he had a conversation with plaintiff regarding background checks for civilian employees. They discussed the transfer of an employee from City Hall to the department, on a temporary, part-time basis. According to Cocuzza, plaintiff told him that the employee would have to have a background check or be fingerprinted for security purposes. Plaintiff also told Cocuzza that all civilian employees had to be fingerprinted.
Cocuzza additionally testified that he told plaintiff that "no action" would be taken until Cocuzza received "direct written authorization from the control unit or somebody in authority," and he spoke "with the City Attorney to make sure" such action was appropriate. Cocuzza noted that some of the employees that they were discussing were tenured employees, who had "between two and fifteen years of service."
Cocuzza also stated that he was concerned about the legality of any background checks of employees in good standing. Cocuzza said that he would have ensured that once it was determined that there was a need, and really, we are only talking about fingerprinting, I grant you that, because that would have been the only thing needed to do to get the criminal history check, but it certainly required written consent from these people. That is something that the State Police standard requires as well.
Now, to do otherwise is just certainly not appropriate.
Cocuzza further testified that the department has an established policy regarding background checks. According to Cocuzza, such checks are required for all employees appointed to the department. Cocuzza said that, when a person applies for appointment to the department, the individual is required to sign a release that allows the department to follow-up on all information developed in the background investigation. The applicant is fingerprinted and is informed that the background investigation results will remain confidential.
Cocuzza stated that, on August 25, 2006, he learned that plaintiff had performed background investigations of five civilian employees of the department, including himself. Cocuzza said that plaintiff had not received written authorization from anyone for these investigations. Cocuzza stated that plaintiff's actions contravened his "direct order."
Cocuzza also testified that, when he learned about the background checks, he directed plaintiff to submit a written report stating the authority upon which he acted. In his report, plaintiff asserted that he performed the checks under his authority as TAC officer. Plaintiff did not mention whether he had conferred with anyone in the State Police about the background checks.
Cocuzza initiated an investigation of plaintiff. He approached Sergeant Jeffrey Jones, the officer who was assigned to the department's Internal Affairs Unit, but Jones said he was uncomfortable undertaking the investigation because he had known plaintiff socially for seventeen or eighteen years. Jones suggested that the Prosecutor's Office conduct the investigation; however, Cocuzza decided to conduct the investigation himself.
In his investigative report, which is dated September 29, 2006, Cocuzza stated that, after plaintiff made a comment about fingerprinting civilian employees of the department, he told plaintiff "that such action" would not be taken without written direction from someone in authority, as well as guidance from the City's Attorney. Cocuzza wrote that plaintiff had been insubordinate and his actions constituted, among other things, a serious breach of discipline, a flagrant abuse of authority, and conduct unbecoming a public employee.
Cocuzza added that plaintiff's "misconduct" was "particularly egregious." He stated that plaintiff's actions were a "concerted effort on his part to exert his will and authority" over Cocuzza's authority, "with the ultimate goal being to achieve de facto leadership of the department; a virtual coup of sorts." Cocuzza wrote that plaintiff's behavior was "extremely malignant to a para-military organization such as a police department."
Cocuzza's secretary, Sally Lelie, testified that she was present when Cocuzza and plaintiff discussed the fingerprinting and background checks of the department's civilian employees. Lelie stated that the conversation began when someone mentioned that one of the City's employees was going to be re-assigned to the department, and plaintiff mentioned fingerprinting and doing criminal histories and background checks of the employees. Lelie testified that Cocuzza told plaintiff that he should get "proper ...