On appeal from the Superior Court of New Jersey, Law Division, Civil Part, Essex County, Docket No. L-3177-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges A.A. Rodríguez and C.L. Miniman.
Appellant Thomas White (White) seeks our review of a judgment upholding an administrative dismissal from his position as a police officer with respondent Township of Montclair (Montclair). We affirm.
White, who resides in Montclair, had been an officer with the Montclair Police Department ("the Department" or "Montclair PD") for fifteen years before he was suspended without pay on April 14, 2004. At that time he was charged with ten violations of the Montclair Police Department's Rules and Regulations (Departmental Regulations). When the matter was decided by the Township Manager, acting as the Hearing Officer, on April 6, 2005, all ten charges were sustained and White's employment was terminated. On de novo review by the Law Division of the record before the Hearing Officer, the judge on March 2, 2007, found only one of the ten charges sustainable, but also concluded that termination of employment was appropriate and entered the judgment under review on July 20, 2007. Accordingly, our review of the facts is limited to the one sustained charge, which was a "[w]illful violation of agency rules or regulations or other statutes relative to the employment of public employees."
In January 2004, Montclair PD Police Chief David Harmon received information that White was engaged in activities suggesting that he was employed by the G-Spot Lounge (the Lounge), on Bloomfield Avenue, Montclair, and he communicated that information to the Department's Office of Professional Standards. That office began an internal investigation on January 13, 2004. The Department's Vice Control Unit, the State Department of Law and Public Safety, the Passaic County Prosecutor's Office, and the Division of Alcoholic Beverage Control (ABC) all participated in the investigation. One of the officers in the Vice Control Unit who was responsible for ABC enforcement, Officer Wilhelm Young, had seen a flyer for the Lounge that bore the names Jeff and Thomas and two telephone numbers, one of which belonged to White. As a result, the Vice Control Unit decided to conduct surveillance of the bar. The surveillance took place on six occasions over a three-month period--January 24, February 28, March 6, March 11, March 18, and April 6, 2004.
On January 24, Young did not observe White at the Lounge, but he did see him leave the building at 300 Bloomfield Avenue on February 28. On March 11, Lieutenant Butler asked Young to participate in the investigation of the Lounge. As a result, Young went to the Lounge to see if he could have a conversation with White and Jeff Beckett. Beckett was behind the bar and Young conversed with him about booking a party. Beckett told Young that whenever he was ready he could speak with him or with Thomas. Beckett did not see White at the Lounge that day nor did he see him there on March 18 or April 6.
Young testified that the Lounge, which was located on the second floor of 300 Bloomfield Avenue above the first-floor bar, which was called the DLV Lounge (the DLV), was not operating "under the ABC guidelines" and that the owner of the DLV, George Maribel, was eventually cited for a liquor license violation in connection with permitting the operation of the Lounge.
Lieutenant Daniel Butler from the Prosecutor's Office assigned Detective Marilyn Vega to the investigation of White. Vega from the Prosecutor's Office participated in the undercover investigation. Vega, accompanied by Butler, first went to the Lounge on March 11. Vega and Butler remained there for a couple of hours, but Vega did not speak with White, although Beckett pointed him out. Butler saw White tape a poster to the wall of the Lounge. White was seated alone with his back against a wall observing the establishment for the entire time Vega and Butler were there. At one point, a confrontation occurred at the bar between and a male patron and a female patron and White spoke with them and had one of them leave the establishment.
Vega returned to the Lounge on March 18 and waited for Beckett to arrive and then White arrived at 9:00 p.m. and struck up a conversation with her. She spoke with White about booking a party and asked how much it would cost to have the Lounge closed for a private party. He advised her that there would be no charge if she could sell forty tickets at $20 apiece. White told her "I work here" and said that he was an officer with the Montclair PD.
Vega had another conversation with White, this one over the telephone, about booking the party. Shortly after that conversation, White advised Vega on March 31 that they had a bachelor party the Wednesday before, a lot of things were broken at the bar, and they could not have anymore dancers or strippers there. Later that day, Vega left White a message in regard to lowering the price of the tickets because they would not have any dancers. When White returned her call, he told her that "we'll do it at the $300 for the open bar and $10... per person" and he would give her the tickets to sell. Vega told White that she wanted the party on April 21 and White told her that date was open.
On April 6, Vega went to the Lounge to pay for the cost of the open bar. This was the third and last time during the investigation that Vega went to the Lounge. White was not at the Lounge and she had to call him to come and meet her. When White arrived he handed her forty tickets, Vega gave him $300 for the open bar and he gave her a receipt. The $400 balance was due on the date of the party.
Sergeant Todd Comforti of the Montclair PD was assigned to work with ABC State Investigator Don Simonetti in an investigation of the DLV and the Lounge. Comforti and Lieutenant Carlucci inspected both establishments and, while they were there, Maribel came to the DLV and agreed to go to Montclair PD headquarters and give a statement about his and White's involvement with the Lounge. Maribel gave this statement on April 14.*fn1 Charges were filed against Maribel, which were still pending at the time of the hearing on the charges against White. Maribel was charged with failing to show on his license application that "White, a person disqualified from having an interest in a liquor license, by reason of his employment as a police officer, had an interest directly or indirectly in the license applied for and the business to be conducted under sub-license in violation of N.J.S.A. 33[:1]-26."
Beckett testified on White's behalf, explaining that they had been friends for over twenty years. They were at the DLV one evening and Beckett spoke to Maribel about renting the second floor over the DLV. He first rented the second floor from Maribel in November 2003 to entertain people and opened the second week of December. The rent was $150 per week but over time increased to $600.*fn2 Beckett borrowed $3000 from White on November 30, 2003, to fund the purchase of the liquor and supplies that would be needed. The principal of the note was to be repaid at the rate of fifty percent of weekly profits until paid in full.
Beckett testified that he had no partners in the Lounge and White had no involvement with it. All White did was keep an eye on Beckett's employees when Beckett was not there because Beckett was concerned that his employees were stealing or giving away free drinks. He denied that White ever worked as a bouncer or bartender, nor did he take care of the employees or manage anything. When Beckett had to print tickets for a party, he would buy the paper and give it to White to print because he was better with a computer than Beckett. Beckett testified that White never received any money from him except in repayment of the $3000 loan.
Beckett admitted that he told Vega to return on another night and, if he was not there, she could speak with White about the party. He also claimed that he did not authorize White to quote a price to Vega and the price White quoted was too low to cover the liquor, but he honored it because White was his friend and had told him that he was trying to "hook up" with Vega. Beckett also claimed that he printed the flyer with White's name and phone number on it without consulting with White, who told Beckett that he would get White in trouble because he was "not supposed to be promoting any drug or alcohol establishments." Nonetheless, Beckett continued distributing the flyers until they were all gone but, when he printed more, he eliminated White's name and phone number.
Beckett admitted that he did not have his own liquor license and stated that the Lounge was open every day except when it was closed for parties. However, it only operated for four or five months before it was closed down. Beckett testified that the entire loan was repaid, roughly $1700 or $1800 from profits made at the Lounge and the balance from another business he owned. Beckett made all payments on the note in cash and he had no receipts for any of them. He also admitted that he paid all of his employees in cash but no longer had any records of those payments.
Beckett testified that, when White was at the Lounge, he would talk to people and have drinks. Beckett would buy most of White's drinks, but White would also pay for some. White did not help tend bar, but on one occasion he did ask some people to leave. Beckett might have sometimes introduced White to people as a police officer with the Montclair PD, but to Beckett's personal friends he would introduce White as "my... partner or my best friend." By partner, he meant "being around each other for a long time."
White also testified, corroborating much of the testimony given by Beckett. Additionally, he testified that he went to the Lounge about twice a week. On at least two occasions at two different bars he has asked people to leave the bar or settle down. If someone approached him about a party at the Lounge, he would get the information and give it to Beckett, but then testified that he only did this for his niece and Vega. White testified that he did not believe that loaning Beckett money was a violation of any ...