March 31, 2009
DETECTIVE SERGEANT DEAN ACKERMANN, PLAINTIFF-RESPONDENT/ CROSS-APPELLANT,
BOROUGH OF GLEN ROCK AND GLEN ROCK POLICE DEPARTMENT, DEFENDANTS-APPELLANTS/CROSS-RESPONDENTS.
On appeal from Superior Court of New Jersey, Law Division, Bergen County, No. L-5384-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued January 13, 2009
Before Judges Wefing, Parker and LeWinn.
The parties appeal and cross-appeal from an order entered by the trial court. After reviewing the record in light of the contentions advanced on appeal, we affirm.
Plaintiff has been a member of the Glen Rock Police Department for more than twenty years. He holds the rank of sergeant and the title of detective. Defendants are the Borough of Glen Rock and its police department. On October 3, 2006, Steven D. Cherry, Chief of the Department, served plaintiff with a disciplinary notice, charging him with acting contrary to good order and discipline and violating Glen Rock's "No Tolerance Policy" with respect to wrongdoing in the workplace. That notice contained no recommendation with respect to discipline.
Three days later, Chief Cherry served an amended notice of disciplinary action which set forth nine charges:
fl a violation of Police Manual, Chapter 5:1.3(d), an "act or omission contrary to good order or discipline";
fl a violation of Police Manual, Chapter 3:11, failing to conduct his private and professional life so "as to avoid bringing the Department into disrepute";
fl a violation of Police Manual, Chapter 3:18, failing to perform his duties as required "by law, Department rule, policy or order";
fl a violation of Police Manual, Chapter 3:1.11, failing to obey all laws, ordinances, rules, regulations and orders of the Department;
fl a violation of Police Manual, Chapter 3:1.13, failing to "treat Superior Officers, subordinates and associates with respect";
fl a violation of Police Manual, Chapter 5:1.2;
fl a violation of the borough's sexual harassment policy; fl a violation of the borough's "No Tolerance Policy"; and fl conduct unbecoming an officer or conduct detrimental to the reputation, order and discipline of the Department. In this amended notice, Chief Cherry recommended that plaintiff be suspended for three days without pay and be required to attend an approved course in sensitivity training.
The charges were based upon complaints by Anna Maria Mattina, the Borough's first female police officer. She alleged that plaintiff's conduct toward her was unwanted and harassing.
Plaintiff denied any wrongdoing, would not accept the proposed discipline, and requested a hearing. Retired Superior Court Judge Gerald C. Escala was designated as the hearing officer, and he presided over five days of hearings, at which plaintiff was represented by counsel. Thereafter, Escala issued a detailed report in which he concluded that the charges had been sustained. He summed up his conclusions in the following manner:
From the credible testimony and evidence, I conclude that events described above did in fact occur and that the actions and conduct of Ackerman toward Mattina, taken altogether, created an environment in [her] workplace that can be described as hostile. Perhaps in isolation any one of these incidents might be considered friendly or gestures of assistance or cam[a]raderie. However, collectively, in the context of (a) Ackermann's having been told twice by superiors to cease this conduct, and (b) having been told by the object of his attention herself that his actions were unwelcome and that this attention should cease, they constituted a pattern of excessive, bothersome gestures that resulted in a tense and uncomfortable workplace for her. Moreover, in view of Ackermann's years of experience and training on this job, he himself should have realized the situation he was creating, appreciated the tense environment that ensued, and anticipated the outcome.
The hearing officer, however, rejected Chief Cherry's recommendation as to discipline. He recommended that plaintiff be suspended without pay for ten days as well as attend an approved course in sensitivity training.
The hearing officer's report was submitted to the mayor and council, which accepted his findings but rejected his recommendations with respect to discipline. The council passed a resolution suspending plaintiff without pay for sixty days, demoting defendant from detective sergeant to police officer and requiring completion of a course in sensitivity training before he could return to active duty.
Plaintiff filed a timely three-count complaint in lieu of prerogative writs, contending that the evidence presented did not support the findings that were made, that the procedure utilized did not conform to the Attorney General's Internal Affairs policies and procedures that the Borough had adopted, and that the increase in penalty was retaliatory and in violation of N.J.S.A. 40A:14-147.
The trial court heard the matter as a trial de novo. Neither party sought to supplement the record before the trial court as allowed by N.J.S.A. 40A:14-150.
The trial court concluded that only two of the violations, numbers 7 and 9, had been proven and that the penalty imposed by the borough was excessive. It noted that defendant had not been the subject of any other disciplinary charges during his career and determined that to order plaintiff demoted would not be in accordance with the principle of progressive discipline. Accordingly, it directed that plaintiff be suspended for two concurrent periods of thirty days without pay and complete a course in sensitivity training. The parties appeal and cross-appeal from the resultant judgment.
On appeal, defendants argue that the trial court erred in directing that plaintiff not be demoted but retain the rank of sergeant. We disagree.
The statute clearly empowers a court hearing a police disciplinary matter de novo to "affirm, reverse or modify" a municipal decision on discipline of a police officer. N.J.S.A. 40A:14-150. We have said that it is "self-evident" that a trial court has the power to modify a disciplinary sanction imposed upon a police officer in a non-civil service municipality. Cosme v. East Newark Twp. Comm., 304 N.J. Super. 191, 201 (App. Div. 1997), certif. denied, 156 N.J. 381 (1998). Further, we have recognized that the trial court, in determining whether to modify such a sanction, is exercising its judicial discretion but that such discretion is not unbounded.
Judicial discretion, sound discretion guided by law so as to accomplish substantial justice and equity, is a magisterial, not a personal discretion. It is legal discretion, in which the judge must take account of the applicable law and be governed accordingly. If the judge misconceives or misapplies the law, his discretion lacks a foundation and becomes an arbitrary act. When that occurs, the reviewing court should adjudicate the matter in light of the applicable law to avoid a manifest denial of justice.
[Id. at 202 (quoting In re Presentment of Bergen County Grand Jury, 193 N.J. Super. 2, 9 (App. Div. 1984)).]
Having reviewed this record, we can find no fault with the manner in which the trial court reviewed this record and reached its conclusions. It set forth clearly the governing principles and applied them to this factual complex. We reject defendants' argument that plaintiff was not entitled to the benefit of the principle of progressive discipline in setting the quantum of the sanction to be imposed. It is settled that an employee's "past record... may be resorted to for guidance in determining the appropriate penalty for the current specific offense." Town of West New York v. Bock, 38 N.J. 500, 523 (1962). That record may be utilized both to mitigate a penalty for a current offense as well as to augment it. In re Herrmann, 192 N.J. 19, 32 (2007). It is entirely appropriate to discipline an employee with an otherwise blameless record in a manner different than an employee whose record is studded with disciplinary charges. Plaintiff's record with the department was blameless save for the present charges.
Cases in which progressive discipline has been rejected inform our analysis. In re Herrmann, supra, involved a case worker for the Division of Youth and Family Services who waved a lit cigarette lighter in the face of a child in a room with oxygen equipment. In In re Carter, 191 N.J. 474 (2007), the Supreme Court held that an officer guilty of several offenses, including sleeping on duty, was not entitled to the application of progressive discipline. In McElwee v. Borough of Fieldsboro, 400 N.J. Super. 388 (App. Div. 2008), we found that a police officer who refused to work the ordered shift because it would conflict with his other job could be terminated. In Cosme, supra, the officer departed on vacation without permission, was found guilty of willful disobedience and neglect of duty and also found to be wholly lacking in credibility. 304 N.J. Super. at 206. In Bowden v. Bayside State Prison, 268 N.J. Super. 301, 306 (App. Div. 1993), certif. denied, 135 N.J. 469 (1994), a corrections officer gambled with inmates and had a previous disciplinary record.
The record here does not contain equivalent misconduct; there is no evidence that the manner in which plaintiff performed his duties as sergeant on this police force was in any way deficient, except insofar as his behavior toward Police Officer Mattina was concerned. We agree with the trial court that suspension without pay and mandatory attendance at sensitivity training constitute an appropriate penalty in this context.
That we uphold the determination of the trial court with respect to the discipline to be imposed upon plaintiff is not to be misunderstood as a denigration of the seriousness of his conduct. Rather, it is a recognition that the trial court was charged with the difficult calculus of balancing plaintiff's offensive conduct against the many years of service he has provided.
We turn now to plaintiff's cross-appeal, in which he argues that defendants violated the Attorney General's guidelines for conducting such disciplinary matters, that no inappropriate conduct was established, that the disciplinary charges were improperly amended and, in the event that those arguments are rejected, that the trial court properly revoked demotion as a penalty.
In support of his contention that the failure to follow the Attorney General's guidelines should void the disciplinary hearings, plaintiff points to our recent decision in O'Rourke v. City of Lambertville, 405 N.J. Super. 8 (App. Div. 2008).
We agree, however, with the trial court that the deviations which occurred here did not unfairly prejudice plaintiff. In O'Rourke, the hearing was conducted by the person who also had performed the investigation. That individual, moreover, was not a sworn member of the department but a civilian director. Here, plaintiff had a hearing before a neutral hearing officer who issued a report that was not infected with "opinions, conclusions and personality," id. at 21, but that drew its conclusions from the evidence presented.
Plaintiff, moreover, was fully aware that his behavior posed a risk of disciplinary charges. He had twice been privately counseled to change his behavior, but he failed to do so. We agree with the trial court that the flaws to which plaintiff points did not prejudice him or deprive him of a fair investigation and a fair hearing. We also reject his contention that the increase in sanctions, from the initial recommendation of a three-day suspension, to a ten-day suspension, to a sixty-day suspension with demotion, violated the forty-five day rule of N.J.S.A. 40A:14-147. Bock, supra, 38 N.J. at 521 (stating that "[n]notice of the prospective penalty... is not a vital element of a statement of charges").
Finally, we find plaintiff's contention that the charge of inappropriate conduct was not established does not warrant discussion in a written opinion. R. 2:11-3(e)(1)(A). The factual findings of the trial court are amply grounded in the record presented to it and to us. That plaintiff still does not understand that his behavior constituted an unwelcome intrusion into Police Officer Mattina's life demonstrates, in our judgment, the correctness of the determination below.
The judgment under review is affirmed, both on defendants' appeal and plaintiff's cross-appeal.
© 1992-2009 VersusLaw Inc.