On appeal from the New Jersey Transit Police Department, IAD Docket No. 04-029.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Skillman, Graves and Espinosa.
On June 7, 2004, respondent New Jersey Transit Police Department (Transit Police) charged appellant Juan Barroso, a member of the Transit Police, with "conduct unbecoming an officer." The relevant part of the specification of charges stated:
On May 15, 2004 you along with a female identified as Wilnelia DeJesus went to the home of Merida DeJesus and through intimidation and acting under the color of law you threatened Ms. Merida DeJesus with arrest if she did not surrender several savings accounts she had in the name of her grandchildren. Through this intimidation she did surrender the Bank books. On May 17, 2004 you and Ms. Wilnelia DeJesus entered the Hudson United Bank and removed all monies from the accounts.
Appellant submitted a request for a hearing, and the matter was referred to the Office of Administrative Law. An Administrative Law Judge (ALJ) conducted a three-day evidentiary hearing regarding the charges. Based on the hearing record, the ALJ issued a recommended initial decision which concluded that respondent had failed to prove the charges and ordered appellant's reinstatement "with all the emoluments of employment including mitigated back pay." Respondent filed exceptions to the ALJ's decision.
The Chief of the Transit Police issued a final decision on May 23, 2007, "find[ing] that certain critical factual conclusions reached by the ALJ were erroneous leading me to reject the initial decision." Consequently, the Police Chief concluded that the charge of conduct unbecoming an officer in the Transit Police had been established and that appellant's conduct warranted his termination.*fn1
The charges against appellant were based on two incidents.*fn2
The first occurred on May 15, 2004, the day after appellant's live-in girlfriend, Wilnelia DeJesus ("Wilnelia"), was awarded custody of her daughters by court order. For several years before that date, the children had been in the custody of Wilnelia's ex-mother-in-law, Merida DeJesus ("Merida"), who was then in her late 80s. The court order stated that Wilnelia was to pick up the children at Merida's apartment around 6 p.m. Wilnelia asked appellant to assist her with the transfer of custody because she did not have a car and needed help carrying the children's belongings out of Merida's apartment.
When Wilnelia and appellant arrived at Merida's apartment, Merida's son David and daughter-in-law Annamarie were also in the apartment. Appellant started bringing boxes and bags containing the children's belongings out to his car. At some point, Wilnelia told Merida that the court order transferring custody required Merida to turn over to Wilnelia all documents pertaining to her daughters, including their birth certificates, school records, social security cards and medical records. Wilnelia claimed that this order also required Merida to give her the bank passbooks for custodial accounts Merida had established for the children with Merida as custodian.
According to Merida, in the ensuing argument over whether she was required to turn over the bank passbooks, appellant yelled and acted in a threatening manner towards her. She testified that appellant told her that if she did not give him the passbooks, he was going to "bring the police and then take me to court." Merida was unaware at the time that appellant was himself a police officer. After appellant yelled at her, Merida gave him the passbooks.
David and Annamarie also testified that they heard appellant yell at Merida. Annamarie testified that she did not understand what appellant said to Merida because he was speaking in Spanish, and she only speaks English, but that he spoke "loudly" and "disrespectfully." She did not hear appellant threaten Merida.
Appellant testified that while he was carrying the children's belongings from Merida's apartment to his car, he overheard Wilnelia and Merida arguing about the bank passbooks.
At some point, Annamarie said to Wilnelia: "You're not going to get these fucking passbooks. They don't belong to you. Get the fuck out of my house." Because he did not want to get involved in the dispute, appellant said to Wilnelia: "Listen, let's go, don't worry about it, we'll go back to the Court," and said to Merida in Spanish, "Listen, no problem, I'm going to call Hoboken Police like I was instructed and I'll see you in court." In explaining why he made this comment to Wilnelia, appellant testified that when he and Wilnelia were in court the day before, [Wilnelia] asked Judge Debello off the record, "Judge I believe there's two passbooks involved that belong to my daughters, can I have those also?" And he said, "I don't see no problem with it, but when you get there if there's a problem do not force her to give them to you, instead I want you to call Hoboken Police, generate a report and call my secretary for another hearing."
Merida responded to appellant's comments about going back to court by saying, "I'm not going back to court."
David then appeared with a baseball bat in his hand, which he was swinging in a threatening manner. According to appellant, he said to David, "[A]ll I want to tell you is, if it's your intentions to strike me with that bat, I am a Police Officer and you'll be charged with aggravated assault and maybe arrested, okay[,]" and started to walk out of the apartment with the last box of the children's belongings in his hand. Appellant testified that Merida then said, "'Here -- here's these books I don't want -- I don't need them,' and she threw [the bank passbooks] at [appellant and Wilnelia]." Wilnelia picked up the passbooks, and they left Merida's apartment.
Appellant's version of the May 15, 2004 incident was corroborated by Wilnelia. She testified that when the dispute arose concerning Merida retaining the bank passbooks, appellant said to her: "No problem. We will see you in court." She also testified that appellant had a "calm" demeanor throughout the incident.
The second incident occurred two days later, when appellant drove Wilnelia to the bank to withdraw the money in the two custodial bank accounts. There was conflicting evidence ...