December 4, 2008
IN THE MATTER OF JAMES JOYCE, CITY OF PASSAIC.
On appeal from a Final Decision of the New Jersey Merit System Board, Docket No. 2006-4758.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued October 21, 2008
Before Judges Yannotti and LeWinn.
James Joyce, an officer employed by the City of Passaic's Police Department (PPD), was charged with conduct unbecoming a public employee, contrary to N.J.A.C. 4A:2-2.3(a)(6), and violating the PPD's rules and regulations, contrary to N.J.A.C. 4A:2-2.3(a)(11). The PPD found that the charges had been sustained and imposed a sixty-day suspension.
Joyce appealed that determination to the Merit System Board (Board), which referred the matter to the Office of Administrative Law for a hearing before an administrative law judge (ALJ). The ALJ found that the evidence supported the charges and recommended that the sixty-day suspension be upheld. The Board adopted the ALJ's findings of fact but modified the penalty and imposed a 120-day suspension. Joyce appeals from the Board's decision. For the reasons that follow, we affirm.
We briefly summarize the facts based on the evidence presented at the hearing before the ALJ. On March 5, 2005, Joyce and others went to the Voo-Doo Lounge in Lyndhurst, New Jersey. The owner of the lounge, Trent Charilas, was at the door when Joyce arrived with his party. Charilas asked Joyce to pay the cover charge. According to Charilas, Joyce told him that he did not have to pay the cover charge. Charilas insisted that Joyce pay the charge and Joyce threatened Charilas by stating that he should not be caught driving through the City of Passaic.
Shaina Lewis was the bartender on duty at the lounge and served drinks to Joyce's party. Lewis alerted Charilas about the degree of intoxication of some members of the party. Charilas directed Lewis to "flag" the party, meaning that they should not be served any additional alcoholic beverages.
Joyce's party decided to leave. Lewis presented the party with a bill and Joyce's wife handed Lewis a credit card. Lewis processed the payment and returned to the table to have Joyce's wife sign the receipt. Lewis testified that Joyce came over and instructed his wife not to pay. Joyce grabbed the pen from his wife's hand and threw it aside, but Joyce's wife picked up the pen and tried to sign the receipt. Joyce told her, "You are not fucking paying for it." He took the pen and the receipt and threw them.
Lewis informed Charilas that Joyce's party was about to leave the lounge without paying. She handed Charilas the credit card receipt. A member of the party offered to pay the bill but Joyce stepped in. Charilas presented the bill to Joyce, but he refused to pay it and said that he could do as he pleased because he was a police officer.
Charilas stopped Joyce's wife at the door. He handed her the receipt and a pen. Charilas said that he did not touch Joyce's wife. Joyce grabbed the receipt and the pen and told his wife not to "pay the fucking bill." Joyce also told Charilas to "get the fuck out of his way" and to mind his own business.
Joyce pushed Charilas in the chest and shoulder, causing Charilas to fall into a bench. Joyce invited Charilas to step outside. Charilas told him to leave the lounge. As he left, Joyce slammed the door with such force that a piece of the door fell off.
Outside, Joyce continued to challenge Charilas and a bouncer to a fight. Charilas warned Joyce to leave or he would call the police. Joyce refused to go and Charilas called the police. Officers Richard Holicki and Francis O'Rourke of the Lyndhurst Police Department responded to the scene. Holicki asked appellant for his identification. Holicki then instructed Joyce and his party to leave the premises.
About twenty minutes later, Joyce returned and confronted Holicki and O'Rourke. Joyce said that the officers had not returned his documents. Joyce told the officers, "I'm a Passaic cop and I'll do whatever the fuck I want to." Joyce opened his wallet and his identification fell out.
Holicki testified that Joyce was out of control. He was screaming and cursing. Holicki and O'Rourke sent for a superior officer, who instructed them to bring Joyce to the Lyndhurst police headquarters. At the police station, Joyce quieted down.
He told Holicki that there was a dispute at the lounge over the amount of the bill and that a bouncer had improperly grabbed his wife. Sergeant Reid of the PPD arrived at the police station and Joyce was released into his custody.
Joyce testified that he believed that he did not have to pay a cover charge at the lounge because such establishments frequently extend this courtesy to police officers. Joyce denied that he used crude or offensive language when Charilas told him to pay the charge. Joyce denied that his party had been denied service of alcoholic beverages and asserted that he was not intoxicated. Joyce said that he questioned the bill because it was higher than he had anticipated.
Joyce also denied that he pushed Charilas when he was leaving the lounge. He denied using profanity with Charilas. Joyce said that he was not intoxicated when he left the premises, as indicated by the fact that Holicki and O'Rourke let him drive away. Joyce asserted that, after he arrived at home, he realized that he did not have his identification and returned to the lounge. Joyce admitted, however, that his documents were in his wallet.
According to Joyce, at that point, the officers would not let him leave and told him to get someone to drive him home. Joyce conceded that he was angry but denied that he was trying to intimidate the officers. He said that he did not curse at the officers, although he admitted that he might have let the word "fuck" slip out.
The ALJ found that Joyce had engaged "in an abusive and belligerent manner" towards his fellow officers and members of the public, as evidenced by the testimony of Charilas, Lewis, Holicki and O'Rourke. The ALJ stated that "Joyce's explanations and protestations of innocence are not credible in light of the overwhelming testimony to the contrary."
The ALJ additionally found that "Joyce attempted to use his position as a Passaic police officer to intimidate fellow police officers and members of the public in order to secure advantages for himself to which he was not otherwise entitled." The ALJ concluded that "Joyce's conduct was outrageous and more likely than not evidence of his extreme public intoxication."
As stated previously, the ALJ recommended that the Board uphold the sixty-day suspension that had been imposed by the PPD. The Board accepted the ALJ's findings of fact but modified the penalty and imposed a 120-day suspension.
Joyce appeals and argues that the charges should have been dismissed because the PPD failed to initiate the disciplinary proceedings within the time prescribed by N.J.S.A. 40A:14-147.
Joyce also argues that the Board's decision to modify the penalty is arbitrary, capricious and unreasonable.
We have thoroughly reviewed the record in light of these contentions. We are satisfied that Joyce's arguments are entirely without merit. Accordingly, we affirm the Board's decision substantially for the reasons stated in the Board's final determination dated October 15, 2007. R. 2:11-3(e)(1)(D) and (E). We add the following brief comments.
It is well established that "[i]n light of the executive function of administrative agencies, judicial capacity to review administrative actions is severely limited." In re Musick, 143 N.J. 206, 216 (1996) (citing Gloucester County Welfare Bd. v. New Jersey Civil Serv. Comm'n, 93 N.J. 384, 390 (1993)). We will "intervene only in those rare circumstances in which an agency action is clearly inconsistent with its statutory mission or other state policy." Ibid.
Our review of a final decision of an administrative agency therefore is limited to three inquiries: "(1) whether the agency's action violates express or implied legislative policies, that is, did the agency follow the law; (2) whether the record contains substantial evidence to support the findings on which the agency base[d] its action; and (3) whether, in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors." Ibid. (citing Campbell v. Dept. of Civil Serv., 39 N.J. 556, 562 (1963)).
Applying these principles of appellate review, we are convinced that the Board's decision must be affirmed. We reject Joyce's contention that the PPD commenced the disciplinary proceedings beyond the time prescribed by N.J.S.A. 40A:14-147. The statute provides:
[a] complaint charging a violation of the internal rules and regulations established for the conduct of a law enforcement unit shall be filed no later than the 45th day after the date on which the person filing the complaint obtained sufficient information to file the matter upon which the complaint is based. [Ibid.]
Although the complaint charged Joyce with a violation of the PPD's internal rules and regulations, it also charged Joyce with violating the State's civil service regulations. Under these circumstances, N.J.S.A. 40A:14-147 does did not apply. McElwee v. Borough of Fieldsboro, 400 N.J. Super. 388, 394 (App. Div. 2008).
We are nevertheless satisfied that, even if N.J.S.A. 40A:14-147 were applicable, the PPD filed its complaint in a timely manner. The incident that gave rise to the charges took place on March 5, 2005. Detective Richard Mastrangelo of the PPD's Internal Affairs Division commenced an investigation on March 7, 2005. Mastrangelo testified that he could not take statements from the citizens involved until April 4 and April 11, 2005. Mastrangelo's investigation was not completed until after he had interviewed those witnesses. Consequently, the PPD did not obtain "sufficient information" to file the charges until April 11, 2005. The charges were filed on April 26, 2005, which was well within the time required by N.J.S.A. 40A:14-147.
Joyce also argues that the Board's decision to modify the suspension was arbitrary, capricious and unreasonable. We disagree. The Board has authority under N.J.S.A. 11A:2-19 to modify a penalty imposed by the appointing authority subject only to the limitation that "removal shall not be substituted for a lesser penalty." Ibid.
In explaining its decision to modify the 60-day suspension, the Board stated that: since his employment in 2000, the appellant only has a minor disciplinary history in that he was suspended for three days.
However, the ALJ specifically indicated that the appellant's conduct brought discredit to the department and himself. Indeed, it must be emphasized that the appellant attempted to use his position as a Police Officer to intimidate fellow police officers and members of the public in order to secure advantages for himself to which he would not otherwise be entitled. The Board finds this conduct to be egregious and worthy of a severe sanction. In this regard, the Board notes that a law enforcement officer is held to a higher standard than a civilian public employee. See Moorestown v. Armstrong, 89 N.J. Super. 560 (App. Div. 1965), [certif.] denied, 47 N.J. 80 (1966). See also, In re Phillips, 117 N.J. 567 (1990). Accordingly, notwithstanding the appellant's prior history, the Board determines that a 120-day suspension is the appropriate penalty.
We are convinced that the Board's findings are supported by sufficient credible evidence in the record, and its decision to modify the penalty is not arbitrary, capricious or unreasonable.
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