On appeal from a final decision of the Department of Law and Public Safety, Division of State Police, 2005-0450.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 18, 2008
Before Judges Winkelstein, Gilroy and Chambers.
This appeal arises out of disciplinary action filed by the New Jersey Division of State Police (the Division) against appellant, Detective Sergeant First Class (DSFC) Daniel Flaherty, charging him with disseminating Division documents without proper authorization (charge one), behaving in an official capacity to the personal discredit of a member of the State Police or to the Division (charge two), and willfully disobeying a lawful verbal or written order (charge three). By summary decision, an Administrative Law Judge (ALJ) found Flaherty guilty of the first and third charges and recommended a five-day suspension; the Superintendent of the Division of State Police (the Superintendent) agreed with the guilty findings but imposed a ten-day suspension for Flaherty's actions.
On appeal, appellant asserts that (1) genuine issues of material fact precluded summary decision; (2) the ALJ failed to consider relevant evidence; (3) the ALJ applied the incorrect burden of proof; (4) the Superintendent erred by adopting the Department of Personnel's (DOP) finding that his discrimination claims were "unsubstantiated"; (5) the Superintendent erred in asserting that he has "absolute discretion" to promulgate rules and regulations; (6) he was unfairly charged with two violations based on the same facts; and (7) the ten-day suspension is disproportionately harsh. We reject appellant's arguments and affirm.
The underlying facts are not substantially in dispute. In 2001, Flaherty filed an age discrimination complaint with the New Jersey State Police Equal Employment Opportunity/Affirmative Action (EEO/AA) Intake Unit. He alleged that since 1995, the State Police had denied him numerous specialist positions because of his age. The EEO/AA assigned Lieutenant Patrick Reilly to investigate his claims. Because almost two years later his allegations had still not been resolved, the EEO/AA replaced Reilly with DSFC Kevin Rowe.
On May 5, 2003, Flaherty filed a New Jersey State Police Reportable Incident Form alleging "culpable inefficiency" against Reilly. Pursuant to a Division policy regarding non-disclosure of confidential internal investigations, the Office of Professional Standards (OPS) denied his request to access the file regarding his complaint against Reilly.
The following month, the State Police administratively closed Flaherty's complaint file against Reilly and transferred the matter to the Attorney General's EEO/AA section. A September 24, 2003 letter from a Senior Deputy Attorney General informed Flaherty that his claim against Reilly could not be substantiated.
On May 31, 2003, the Division assigned Flaherty to the OPS, which was then called the State Police Internal Affairs Investigation Bureau. Pursuant to Division of Internal Affairs policies and procedures, "[t]he nature and source of internal allegations, the progress of internal affairs investigations, and the resulting materials are confidential information. The contents of the internal investigation case files shall be retained in the internal affairs unit and clearly marked as confidential." Internal investigation files can be released only:
· In the event that administrative charges have been brought against an officer, and a hearing will be held, a copy of those internal investigation reports to be used as evidence in the administrative hearing shall be provided to the officer.
· In the event that the subject officer, agency or governing jurisdiction has been named as a defendant in a lawsuit arising out of a specific incident covered by an internal investigation . . . .
· Upon the request or at the direction of the county prosecutor or Attorney General.
On July 23, 2004, Flaherty executed a confidentiality agreement that provides:
By nature of your assignment to the Office of Professional Standards, you will be exposed to sensitive and confidential information. Informal sharing and official dissemination of such information is strictly regulated by the statutory requirements of your individual assignments, Division Rules and Regulations, Stand[ard] Operating Procedures, Operations Instructions, ...