On appeal from Superior Court of New Jersey, Law Division, Monmouth County, L-5528-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Stern, Payne and Lyons.
Defendant, Township of Neptune, appeals from a determination by a Superior Court judge to reduce discipline imposed by it upon Neptune police patrolman Andrew Rogers from dismissal from the force as the result of conduct unbecoming a police officer and numerous violations of police rules to a three-month suspension without pay, together with back pay retroactive to the conclusion of the suspension. On appeal, Neptune argues that the penalty it imposed was the proper one and that the Law Division judge erred in reducing it. Rogers contends that the judge's determinations were correct.
The facts of the matter, as established by the documentary evidence, disciplinary hearing testimony, videotapes of two traffic stops by Rogers, and the audiotape of one of those stops, follow. On June 7, 2004, Rogers was arrested for trespassing and later charged with violating Neptune Police Department rules after Rogers, while "admittedly very intoxicated," broke into a pickup truck that he did not own, was pulled out of the truck by its owner and assaulted, and was later found wandering drunk around town. Rogers had very little memory of the evening and was unable to explain his conduct. At a hearing on the disciplinary charge, conducted by Township Administrator Philip Huhn, Rogers did not dispute the facts as presented by Police Chief O'Neil, and he "expressed deep remorse and humiliation for his actions and vowed never to let it happen again." A sanction of a loss of eighty hours of compensatory time in lieu of a ten-day suspension was recommended by Chief O'Neil and imposed by Huhn.
The two other incidents involved videotaped traffic stops by Rogers while on duty. On January 31, 2005, Rogers stopped Susan McEnerney for speeding. At the time of the stop, McEnerney informed Rogers in response to his questions that she did not have her license or registration, but only proof of insurance. However, the documents were at her house, located approximately one mile away. After providing Rogers with her name and address, McEnerney used her cell phone to request someone to bring the documents from her home to her. Rogers, who had not completed his questioning, stated to McEnerney: "Did I tell you to get on the phone?" McEnerney reacted to the comment by telling the person she was calling that she had to get off the phone, which she did after briefly describing the location of the missing documents. It was Rogers' opinion that McEnerney had complied with his order, but "not quite as quickly as she should have."
Additionally, on two occasions during the stop, McEnerney informed Rogers that her mother had just died,*fn1 stating on the second occasion: "My mother just fucking passed away."*fn2 At the time, Rogers did not react or respond in any fashion to the information. Instead, he returned to his police vehicle, audibly muttering to himself in an angry voice. Rogers then sought to confirm McEnerney's status as a legal driver and to write a speeding ticket.
While Rogers remained in his vehicle, McEnerney's documents were delivered to him by Robin Wernik, a former Neptune municipal court judge and a neighbor of McEnerney. Rogers expressed his aggravation regarding McEnerney to Wernik, stating that she had been "rather rude," would not get off the phone and "started cursing to me." When informed by Wernik that McEnerney's mother had just died, Rogers responded, "everyone has a bad day, even me" but that McEnerney had no right to take it out on him. When delivering the ticket to McEnerney, Rogers repeated to her, in a blunt fashion, that "we all have bad days."
According to the confidential report of Lieutenant Neil Layton, later reviewed by Captain William Bailey:
On 01-31-2005, Ptl. A. Rogers came into the shift commander's office and sat down and stated to this officer "You may be getting a call from a lady that is upset with receiving a traffic summons." Ptl. A. Rogers was asked to explain the circumstances and he stated that he stopped a car for speeding on Brighton Avenue. Upon making the stop he spoke with the female operator who was cursing at him and giving him a hard time. Ptl. A. Rogers also stated that while he was trying to speak with the lady she was on her cell phone talking with someone. Ptl. A. Rogers advised that the lady stated to him that her mother had just died today.
Ptl. A. Rogers then advised that while he was in his police vehicle Judge Wernik had arrived on scene and had approached him to tell him that the female operator's mother had just died today. Ptl. A. Rogers advised this officer that he replied to Judge Wernik that the lady gave him a hard time and had been cursing at him. Ptl. A. Rogers also advised this officer that he told Judge Wernik that "everyone has bad days once in a while including himself."
On the following day, while Layton was being briefed by Bailey, Layton was told of the sudden death of McEnerney's mother. Layton thereupon informed Bailey of his conversation on the preceding day with Rogers. After discussing the matter, Bailey directed Layton to review the videotape of the stop. According to Layton's report, he then reviewed the tape with Sergeant F. Jenkins, and concluded that it clearly showed that Ptl. A. Rogers acted in an unprofessional manner. Ptl. A. Rogers was not sensitive at all to the female operator even after being told several times by the female that "her mother just died today." The demeanor of Ptl. A. Rogers also was very poor as he showed no remorse for the lady at all. All that Ptl. A. Rogers could say was that "we all have bad days" which is again very unprofessional for a "professional" police officer. In reviewing the tape, nowhere could it be found that the female was giving Ptl. A. Rogers a hard time. Also, nowhere could it be found that the female was cursing at Ptl. A. Rogers.
It was found that the female had used curse words but none of the words were directed personally at Ptl. A. Rogers.
Upon receipt of Layton's report, Bailey also reviewed the videotape of the stop and confirmed Layton's conclusion that Rogers was unfazed by McEnerney's statement that her mother had just died; that his demeanor was "cold," "abrasive" and "impatient"; and he "lacked any understanding or sensitivity." Bailey brought the incident to the attention of Police Chief O'Neil and Deputy Chief Adams, who concurred that the tape displayed "an unacceptable demeanor" on the part of Rogers, as well as "disturbing" evidence of his continued mumbling to himself.
Bailey and Adams then discussed the matter with Rogers, with Bailey reporting the following:
Ptl. Rogers indicated that he followed his standard practice and demeanor when stopping Ms. McEnerney and that she was uncooperative. Ptl. Rogers stated that Ms. McEnerney disregarded his request for her to get off of the cell phone and used foul language towards him. Ptl. Rogers indicated that he was concerned that the cell phone used by McEnerney could be used as a weapon. Ptl. Rogers discounted the death of Ms. McEnerney's mother as possibly not the truth as many people lie to him. Ptl. Rogers indicated that he was in fact talking to himself during the stop, "as everyone does." Ptl. Rogers does not recall specifically what he was saying other than at one point commenting about Robin Wernik ("the judge") and her presence.
Bailey then stated that the officers reviewed the videotape several times with Rogers, "who continued to defend his demeanor as appropriate" and stated that he was "being criticized for doing his job."
O'Neil, Adams and Bailey then met with Dr. Mark White, a consulting psychologist specializing in law enforcement issues who, after viewing the videotape, concluded that four "red flag" factors supported the conclusion that Rogers exhibited an "elevated probability of having a condition that could impair the performance of his duties." They were:
fl Language in his pre-employment psychological evaluation that suggests he could be prone to harsh interactions ...