March 18, 2009
ANDREW ROGERS, PLAINTIFF-RESPONDENT,
TOWNSHIP OF NEPTUNE, DEFENDANT-APPELLANT, AND NEPTUNE TOWNSHIP POLICE DEPARTMENT, DEFENDANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued December 3, 2008
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 or behaviors while on the job.
fl A serious episode within the past 5 months involving alcohol abuse, disorientation, and being assaulted and then arrested. Language in the 2000 psychological evaluation that suggests the possibility of an alcohol abuse issue.*fn3
fl A grim, cold orientation toward a civilian who had informed him her mother had just died that day. Perhaps of more significance, this was followed by a lack of any response or change of demeanor to the township's former municipal court judge, whom he knew from prior professional contact, when she informed him on scene that she was the neighbor of the civilian and verified the death of the civilian's mother.
fl The descriptions of the officer's behaviors during his interview by supervisors with respect to the episode.
Dr. White then concurred with the Police Chief's determination to relieve Rogers of duty until his psychological fitness could be fully determined. Accordingly, Rogers was placed on sick leave pending Dr. White's psychological evaluation. Following that examination, on February 8, 2005, Dr. White found Rogers fit for duty conditioned upon attendance at an initial two sessions of counseling with a different psychologist and continued counseling sessions, as needed, after return to work. Dr. White was concerned that Rogers exhibited "a rigid black and white sense of morality and a constricted social repertoire that results in a monotonic social style that can be unresponsive and incongruent to the external social situation." Counseling with Dr. Raymond Hanbury commenced on February 14, 2005, and Rogers returned to work on February 24, after two days of in-service training.
Just three days later, on February 27, 2005, Rogers stopped Vincent Mazzeo for speeding and talking on his cell phone while driving. The videotape*fn4 of the stop discloses that, after Rogers returned to his vehicle, he was approached by Mazzeo, who was offering either a PBA or an FOP card that Rogers later determined had been signed by Neptune's former police chief. Upon Mazzeo's approach, Rogers rapidly exited his vehicle, shouting: "Back in the car. Back in the car. Do what I'm telling you to do." Mazzeo, with his hands raised and a wary look on his face, stated "I am," and backed toward the car. Rogers continued to shout "[b]ack in the car," and as Mazzeo turned to face Rogers before entering it, Rogers shoved him twice in the back, and then slammed the car's door.
Rogers then returned to his police vehicle, eventually writing a ticket only for talking on the cell phone. However, he threatened to take Mazzeo's police courtesy card as a condition of not writing a speeding ticket. Throughout the encounter, Rogers appeared to be disgusted, angry and yelling.
Following the stop, Rogers contacted his supervisor, Sergeant Burst, to express concern because he had issued a summons to an individual who had a courtesy card signed by retired Neptune Police Chief James Ward. Burst also reported that he "had some concern about how the stop went and felt he would be questioned on it as he had just returned [to] work several days earlier as the result of unprofessional conduct." Burst stated that Rogers made the statement, "I'll be getting time off again."
Following that contact, Burst reviewed the videotape of the stop, determining that Mazzeo had approached the patrol vehicle in a non-threatening manner, that he reacted to Rogers' exit from the vehicle with a "serious, concerned" look on his face, that Mazzeo then backpedaled with his hands up, and upon turning as he reached the car to speak to Rogers, Mazzeo was pushed twice in the back. When Burst discussed his findings with Rogers, Burst was told by Rogers that he feared for his own safety and that of Mazzeo, and that Mazzeo would not get back in the car. Burst reported:
As I continued to speak with Ptl. Rogers it became clear that he seems to have a set way of conducting traffic stops, doesn't use common sense and adapt his approach in light of the circumstances at hand and has unrealistic fears.
The tape was then forwarded by Burst to Bailey. After reviewing it, Bailey found "the facts as articulated by Sgt. Burst were accurate and his concerns well founded." O'Neil and Adams were contacted and, after an interview with Mazzeo and a further consultation with Dr. White,*fn5 O'Neil served Rogers with a notice of disciplinary action. The notice charged Rogers with (1) conduct unbecoming a police officer and (2) violation of the Neptune police manual, specifically Article V(B)(16) (requiring police officers to cope with situations firmly, courteously, tactfully, and with respect for the rights of others); Article VI(C)(10) (requiring exercise of authority in conformance with the policies of the Department); Article VI(D)(1) (neglect of duty); Article VI(D)(5) (requiring proper performance of duty); and Article VI(D)(7) (requiring obedience to Departmental policies, procedures and directives). The Department specified:
On or about February 27, 2005, while on duty in the Township of Neptune, County of Monmouth, New Jersey, [Patrolman Andrew Rogers] was engaged in conduct unbecoming an employee in the public service by his inability to cope with situations firmly, courteously, tactfully and with respect for the rights of others.
Officer Rogers utilized unauthorized physical force in the performance of his duties,*fn6 and demonstrated he is psychologically unfit to perform his duties.
Rogers was suspended without pay, as of March 3, 2005, pending a hearing in the matter.
A testimonial hearing was conducted on the charges by Township Administrator Huhn on four days, commencing on September 21, 2005 and concluding on June 15, 2006. At the hearing, the evidence that we have just described was presented.
Additionally Dr. Hanbury testified for Rogers, indicating that he initially saw him on a weekly basis, and then less frequently. Hanbury found no psychopathology to be present. However, he acknowledged that Rogers "sometimes can be I think maybe a little insensitive and maybe very inflexible at certain points." He stated that they had been working on those attitudes, and that "some remediation" had taken place with "a little bit more looseness of emotions." With respect to the McEnerney stop, Dr. Hanbury testified:
Listening to the tape and listening to the way that Andrew Rogers - let's take the first case, the female, okay. Her mother had just died. There was a rather insensitive and I call it rather indifferent attitude. It didn't seem to matter if somebody died or not. Granted he wasn't there, and I don't mean to be facetious, but to be a social worker there, he was there for safety issues for himself as well as the motor vehicle stop. So was it clinically a problem for me putting all those pieces together? I think he probably has to work a little bit on the aspects of being maybe a little bit more sensitive, a little bit more aware and quite frankly very much tuned into what are the exact standards that the department wishes and wants to follow, but again, I'm not the expert on that area.
In a report dated September 12, 2005, Dr. Hanbury noted that Rogers maintained he was "following protocol" during both the Mazzeo and McEnerney incidents. He additionally observed that "[t]here was a sense that [Rogers] did not agree with . . . nor completely understand the reaction that occurred regarding the two vehicle stops relating [to] his present situation since as he states 'I didn't do anything wrong.'" However, Dr. Hanbury testified that, in his opinion as a "treating psychologist" and not the "police psychologist," he saw no problem with Rogers returning to work.
Testimony on Rogers' behalf was also provided by Thomas Jerdan, Jr., a lead security specialist with the Department of Homeland Security and former member of the Atlantic City Police Department, who testified as an expert on use of force and police tactics. In Jerdan's opinion, Rogers had employed "physical contact," not physical force to Mazzeo, and that the contact was reasonable because Rogers had given Mazzeo "four or five" commands to return to his car. Jerdan observed that if Mazzeo had "just listened to the officer's command" rather than turning "to engage the officer in conversation after not listening to four lawful commands," there would have been no physical contact. Jerdan was of the opinion that Mazzeo physically threatened Rogers by exiting his vehicle and walking toward Rogers' patrol car. In contrast, police witnesses Burst and Adams testified that there was no law against a person getting out of their car during a police stop. However, Burst admitted that he would be concerned were he to be approached, and that Rogers was not "out of line" for wanting Mazzeo to remain in his vehicle.
Lieutenant Kerry Duke, a retired Neptune Township police officer also testified for Rogers. Duke testified that, as Rogers' former supervisor, he had "no problems with [Rogers]," and he described Rogers as a "caring person with maybe a problem of trying too hard to do the job." When asked to grade Rogers' performance while under his supervision, Duke replied he would have given Rogers a "B [or] B minus coming along pretty well in the amount of time he had been there."
Additionally, Rogers testified on his own behalf, stating that he had been hired as a dispatcher in January 1999, and that he had become a patrolman effective January 1, 2001. Addressing the McEnerney stop, Rogers testified that he thought that McEnerney's failure to get off her cell phone might have been "some type of diversionary tactic," and he recognized a "possibility" that McEnerney was concealing a gun in the phone. Rogers stated that, when returning to his vehicle, his muttering was simply a reiteration of McEnerney's comments and a repetition of the lyrics to a song he had just heard. With respect to the Mazzeo incident, Rogers denied pushing, shoving, manhandling, or cursing at the motorist. Rogers stated that, while Mazzeo was backpedaling and trying to talk to him, Rogers thought he was "possibly stalling for something unknown to [him] at the time" or "maybe that he was looking for an avenue to escape, maybe to run."
During the course of his testimony, Rogers was asked if he had learned anything from the two events, and he responded: "Maybe learned not to be so blunt." He nonetheless maintained the position that he had done nothing wrong in connection with either event and that he believed he was "doing the duties which [he] was sworn to uphold." Rogers admitted that he had refused to shake Captain Bailey's hand, when proffered at the hearing, viewing the proffer as "insulting."
In a written decision dated November 20, 2006, the hearing officer found termination warranted. In the course of his opinion, hearing officer Huhn stated that "Rogers acted in a completely inappropriate fashion during the Mazzeo stop. Instead of speaking calmly, he unjustifiably screamed at Mazzeo after Mazzeo exited his vehicle, thereby escalating, not calming the encounter, as he should have done." Huhn continued: "Having reviewed the videotape, there is no doubt whatsoever in my mind that Rogers reacted angrily and then in a physically confrontational fashion with Mazzeo, and that there was no basis whatsoever for this reaction in the circumstances of the stop."
After finding Rogers guilty of the charges against him, Huhn turned to the issue of discipline, holding:
Standing alone, Rogers' actions in either the McEnerney incident or the Mazzeo incident arguably might not justify the termination of his employment. However, when considering everything in Rogers' short and troubled history with the Neptune Township Police Department, coupled with his complete denial of responsibility for his actions and total lack of understanding that he cannot behave in this way, I believe termination is mandated in this case. What is particularly troubling is that the Mazzeo incident, which was not only a repetition of the McEnerney situation but in fact evidence of worse behavior, is that it occurred less than a month after the McEnerney incident and only three days after Rogers had returned to work. What is more troubling still is Rogers' inexplicable inability to accept or apparently even comprehend that his behavior on both of these motor vehicle stops was objectionable, improper, and just plain wrong. Because he failed to accept this fact, to return to work would be inviting the inevitable - future incidents in which Rogers would continue to interact with the Township's citizens in a rude, discourteous and even physically confrontational manner. That is an outcome that I, as the Township Administrator, am unwilling to countenance. Indeed, if Rogers would have returned to work and again unjustifiably "la[id] hands" on a civilian, with disastrous results, it would be extremely difficult for either the Police Department or the Township to defend itself in those circumstances given Rogers' prior history with respect to interactions with civilians and, in particular, his illogical and stubborn defense of his prior behavior.
In accordance with N.J.S.A. 40A:14-150, Rogers sought further review of his discipline in the Superior Court. Although Rogers' superiors and hearing officer Huhn found the three incidents sufficient to warrant termination, the judge considering Rogers' appeal de novo on the record below did not, reducing the penalty to a three-month suspension.
Notably, the judge did not find any misconduct in connection with the McEnerney stop. The judge stated in that regard:
As a police officer, you are placed in a number of situations that will test your abilities as an officer. In the present matter, McEnerney did not have identification, was on her cell phone and failed to get off her cell phone when asked by Patrolman Rogers. More troubling is the fact that McEnerney also used profanity toward Rogers. When encountered with an individual, such as McEnerney, who was speeding and failed to have in her possession her license or registration, Patrolman Rogers acted appropriately and cited her for speeding. As a result, the court finds that Patrolman Rogers did not stray from the procedures of the NPD or the conduct required of a police officer.
The judge did, however, find that Rogers "utilized unauthorized and unnecessary force to accomplish his law enforcement objective" when ensuring that Mazzeo returned to his car. "As a result," the judge ruled, "the NPD's disciplinary action filed against Patrolman Rogers was appropriate and justified given the unacceptable and improper use of force by Rogers."
After discussing the three incidents involving Rogers, the judge concluded that the Department's termination of Rogers was arbitrary, capricious and unreasonable. In doing so, the judge did not address the Department's uniform position that Rogers' conduct during the McEnerney stop was insensitive and indifferent to McEnerney's situation. As we have stated, the judge concluded, without further explanation, "that Patrolman Rogers did not stray from the procedures of the NPD or the conduct required of a police officer." The judge therefore focused on the Mazzeo incident, characterizing Rogers' unauthorized use of force a "momentary dereliction of duty" that "did not warrant his removal from active duty as a law enforcement officer." The judge further determined that "according to Patrolman Rogers' psychological evaluation, Patrolman Rogers displays no indications to suggest that there is psychopathology in effect that would prevent him from functioning in a satisfactory manner as a police officer."
Thus, the lesser penalty of a three-month suspension, without pay, was imposed. Retroactive wages commencing upon the conclusion of the suspension were granted, and counsel fees were denied.
The Township of Neptune has appealed.
N.J.S.A. 40A:14-150 provides that police officers, employed by municipalities in which civil service laws are not in operation, are entitled to a trial de novo in the Superior Court on the record below following trial and conviction of a disciplinary charge.
The officer or board shall transmit to the court a copy of the record of such conviction, and of the charge or charges for which the applicant was tried. The court shall hear the cause de novo on the record below and may either affirm, reverse or modify such conviction. If the applicant shall have been removed from his office, employment or position the court may direct that he be restored to such office, employment or position and to all his rights pertaining thereto, and may make such other order or judgment as said court shall deem proper. [Ibid.]
The sponsor of the predecessor to N.J.S.A. 40A:14-150, L. 1935, c. 29, codified at N.J.S.A. 40:47-10, explained the purpose of the statute was to provide redress for members of the police department who are discharged for political reasons. In some of the smaller municipalities of the State, the officer or board who tries members of the police department for infraction of the rules are often the very men who make the charges against them and are prejudiced. The officer does not get a fair trial, and there is no redress. . . . Under the present bill this injustice will be done away with and policemen will have the right in case he feels that he is dealt with by a prejudiced official to have a new trial before an impartial judge. [See Grasso v. Borough Council of Bor. of Glassboro, 205 N.J. Super. 18, 24 (App. Div. 1985), certif. denied, 103 N.J. 453 (1986); In re Bruni, 166 N.J. Super. 284, 289 (App. Div. 1979).]
When the statute was amended in 1981 to provide for a de novo proceeding "on the record below" and to further provide authorization for supplementation of the record with additional testimony, that step was undertaken to "provide greater uniformity in the procedures governing the discharge of county and municipal employees not protected by Civil Service," and to establish a "procedure . . . similar to that governing Civil Service municipal and county employees." Grasso, supra, 205 N.J. Super. at 25 (quoting Governor Byrne's Message, S-1412) (court's emphasis omitted).
As the Supreme Court has noted, the de novo hearing "provides a reviewing court with the opportunity to consider the matter 'anew, afresh [and] for a second time.'" In re Phillips, 117 N.J. 567, 578 (1990) (quoting Romanowski v. Brick Twp., 185 N.J. Super. 197, 204 (Law Div. 1982), aff'd o.b., 192 N.J. Super. 79 (App. Div. 1983)). Thus, the reviewing court does not use an abuse of discretion standard, but instead makes its own findings of fact. Phillips, supra, 117 N.J. at 578. Although the reviewing court must give due deference to the conclusions reached by the original tribunal regarding credibility, those initial findings are not controlling.
State v. Johnson, 42 N.J. [146,] 157 [(1964)]. On reviewing the record de novo, the court must only make reasonable conclusions based on a thorough review of the record. That process might include rejecting the findings of the original tribunal, which are necessarily based on an assessment of the demeanor and credibility of witnesses. To require a reviewing court to defer to the original findings would conflict with the fundamental purpose of a de novo proceeding under N.J.S.A. 40A:14-150; to ensure that a neutral, unbiased forum will review disciplinary convictions. [Id. at 579-80.]
Upon further appeal, our role is restricted merely to deciding whether there was adequate evidence before the trial court to justify its findings of guilt or innocence. Johnson, supra, 42 N.J. at 161. Unless we find the trial court's decision was arbitrary, capricious or unreasonable or unsupported by substantial credible evidence in the record as a whole, the trial court's findings should not be disturbed. Phillips, supra, 117 N.J. at 579 (citing Henry v. Rahway State Prison, 81 N.J. 571, 580 (1980); Campbell v. Dept. of Civil Serv., 39 N.J. 556, 562 (1963)).
In instances such as this in which the trial judge has exercised his authority to reduce the penalty imposed, we apply an abuse of discretion standard, bearing in mind that "a Superior Court judge, sitting as a tribunal of review, cannot be seen to be a free agent in this or any other regard, unconfined by standards and limitations, for if such were the case the discretion reposed by law would 'lack a foundation and become an arbitrary act.'" Cosme v. East Newark Tp. Committee, 304 N.J. Super. 191, 205 (App. Div. 1997) (quoting In re Presentment of Bergen Cty. Grand Jury, 193 N.J. Super. 2, 9 (App. Div. 1984)), certif. denied, 156 N.J. 381 (1998).
Our review of the record in this matter satisfies us that the judge's substantial modification of the penalty imposed upon Rogers constituted a misuse of his discretion. We have previously recognized that a police officer is a special kind of public employee. His primary duty is to enforce and uphold the law. He carries a service revolver on his person and is constantly called upon to exercise tact, restraint and good judgment in his relationship with the public. He represents law and order to the citizenry and must present an image of personal integrity and dependability in order to have the respect of the public, particularly in a small community . . . . [Township of Moorestown v. Armstrong, 89 N.J. Super. 560, 566 (App. Div. 1965), certif. denied, 47 N.J. 80 (1966).]
"Nor can a police officer complain that he or she is being held to an unfairly high standard of conduct. Rather, 'it is one of the obligations he undertakes upon voluntary entry into the public service.'" Phillips, supra, 117 N.J. at 576-77 (quoting In re Emmons, 63 N.J. Super. 136, 142 (App. Div. 1960)).
Moreover, a finding of misconduct by a police official does not need to be predicated on a violation of any particular department rule or regulation, but may simply be premised upon the charge of conduct unbecoming an officer. Phillips, supra, 117 N.J. at 576. We have observed that the phrase is elastic in nature. "It has been defined as 'any conduct which adversely affects the morale or efficiency of the bureau . . . [or] which has a tendency to destroy public respect for municipal employees and confidence in the operation of municipal services.'" Emmons, supra, 63 N.J. Super. at 140 (quoting Zeber Appeal, 156 A.2d 821, 825 (Pa. Sup. Ct. 1959). Thus, charges "may be based merely upon the violation of the implicit standard of good behavior which devolves upon one who stands in the public eye as an upholder of that which is morally and legally correct." In re Tuch, 159 N.J. Super. 219, 224 (App. Div. 1978).
The Phillips Court has recognized "that a tribunal may not consider an employee's past record to prove a present charge. Phillips, supra, 117 N.J. at 581 (citing West New York v. Bock, 38 N.J. 500, 523 (1962)). However, that record may be considered when determining the appropriate penalty for the current offense. Ibid. (citing In re Wenderwicz, 195 N.J. Super. 126, 131-32 (App. Div. 1984)); see also In re Herrmann, 192 N.J. 19, 30 (2007).
In viewing the record in light of this precedent, we find that the judge inappropriately failed to consider Rogers' conduct in connection with the McEnerney stop when reducing the penalty imposed upon him to a three-month suspension.*fn7 Charges were not brought against Rogers after that incident. However, following a thorough and seemingly unbiased review of the matter, the Neptune police were sufficiently concerned about the nature of Rogers' conduct to place him on sick leave pending a fitness for duty evaluation. Although, following that examination, he was then permitted to return to work, that permission was conditioned on completion of an initial two sessions of counseling and continued counseling once work had recommenced. In that connection, Dr. White expressed concern over Rogers' "rigid black and white sense of morality," as well as his "constricted social repertoire" resulting in "a monotonic social style that can be unresponsive and incongruent to the external social situation."
As we have noted, the de novo review procedures of N.J.S.A. 40A:14-150 act as insurance against the arbitrary termination of a police officer for political or other reasons unrelated to job performance, and for that reason, the reviewing court is authorized to make its own findings of fact. Nonetheless, as we have also noted, the court cannot act arbitrarily. Here, there was ample evidence presented of a well-founded concern by Rogers' superiors, following the McEnerney incident, that Rogers' response to McEnerney's statements regarding her mother's recent death (a fact confirmed by Wernik) was cold and insensitive, and that Rogers had failed to exercise the "tact, restraint and good judgment in his relationship with the public," Moorestown, supra, 89 N.J. Super. at 566, that we have previously demanded. The issue never was whether Rogers was justified either in stopping or ticketing McEnerney - the issue determined in Rogers' favor by the reviewing judge. The issue was whether the process was conducted in an appropriately professional matter - a matter uniquely within the competence of the Rogers' supervisors to determine. Thus, in viewing the case solely through the prism of the propriety of the stop, the reviewing judge essentially missed the point.
In the circumstances presented, where evidence of police bias is absent, we suggest that deference to the unanimous opinion of Rogers' superiors that his conduct was inappropriate would have been proper. At very least, their conclusions should have been a principal focus of the judge's consideration of the significance of the McEnerney matter. Because they were not, we find the judge's determination to disregard that incident for purposes of punishment to have been arbitrarily rendered and insufficiently supported by the relevant evidence.
Like the hearing officer, we conclude that the evidence of Rogers' conduct when confronting McEnerney provided context to the Mazzeo incident, occurring three days after Rogers' return to duty, and transformed what the judge characterized as a "momentary dereliction of duty" into a continuing and, indeed, escalating course of insensitive conduct that Rogers' superiors reasonably viewed with sufficient concern to warrant dismissal. We note in this regard that, after undergoing counseling from the time of the McEnerney incident on January 31, 2005 to the time of Rogers' testimony at the hearing on June 15, 2006, Rogers still did not find anything improper in his behavior toward traffic violators, observing only in that respect that "maybe" he had learned not to be so blunt. The unrebutted evidence of Rogers' continued pattern of conduct, his superiors' unanimous and well-considered conclusion that the conduct violated Departmental rules, Rogers' unwillingness to accept that he had engaged in conduct unbecoming a police officer, and the absence of evidence of reform were all crucial facts that the judge failed to weigh when determining that the penalty imposed upon Rogers should be substantially reduced. Thus, the reduction in penalty imposed by the judge lacked foundation in the record and was therefore inappropriate, given the judge's role on trial de novo. Rogers' misconduct as a police officer involved public safety and caused a present and future risk of harm to ordinary citizens, as hearing officer Huhn recognized. Dismissal was thus appropriate. Herrmann, supra, 192 N.J. at 33.