April 22, 2009
NEW JERSEY TRANSIT POLICE DEPARTMENT, RESPONDENT,
JUAN BARROSO, APPELLANT.
On appeal from the New Jersey Transit Police Department, IAD Docket No. 04-029.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued March 24, 2009
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 regarding appellant's role in this transaction.
The Transit Police's version of the incident was presented primarily through the testimony of Rinaldo Gonzalez, a Detective in the Hoboken Police Department who investigated the matter, and a bank videotape that showed Wilnelia and appellant in the bank on the morning the money was withdrawn from the custodial account. Detective Gonzalez watched the videotape and determined that the male involved in this transaction, later identified as appellant, was wearing a short sleeve shirt that said "NJTPD" and a miniature charm police shield "like someone would give a spouse or boyfriend or girlfriend with that person's shield on it." Gonzalez also interviewed the bank teller who allowed Wilnelia to withdraw the money in the two custodial bank accounts. Gonzalez testified that the teller gave the following account of appellant's involvement in the transaction:
Q: What did the teller tell you, as best you can recall?
I said, "Why did you give up the money?" He put his head down, he said, you know, he was scared. He was "You know, I don't want no problems with the cops," which having heard that again, my concern was how does everyone know this guy is a cop. And he made reference to this shield, which again, later on, turned out to be some kind of charm or something.
Q: Did he say anything that the gentleman who's identified as wearing a police identification or whatever it would have been [sic]?
A: He had a shirt that said "New Jersey Transit Police."
Q: Did he say that that gentleman made any threatening remarks or did anything in a threatening manner?
A: No. The gentleman approached when she was denied. Initially, she was denied. He approaches, and I think his words were "Is there a problem" or "What's going on" or "What's taking so long." I don't think he was threatened. I think his -- the fear factor came in when he saw the badge, and he saw the shirt that said "police." So, I think where he got scared was by what he saw, not necessarily by what he heard.
Q: Okay. But specifically, though, he never related to you that some sort of threatening language or physical exertions were done?
A: Physical is what he referred to, meaning the charm and the shirt and the fact that he believed him to be a police officer.
The message he got across was "I'm a police officer." The message that was received was "I'm a police officer," and that's why he was scared, and not necessarily scared that he would do something to him, scared in the sense that he didn't really want to have a problem with a cop.
Appellant denied that he had any conversation with the bank teller. According to appellant, Wilnelia "filled out the proper slips, she walked up to the teller, she showed the teller the slips, the passbooks and the letter from the Judge . . . that said any and all records. It didn't mention passbooks, but it said any and all records and asked him how does this work." The teller then went to speak to another bank employee.
Appellant asked Wilnelia for her cell phone because he was having a problem with his car and wanted to call the dealer. Appellant went outside the bank to make the call, and when he returned, Wilnelia was again speaking to the teller. Appellant did not overhear what they were saying at that time. Appellant then asked Wilnelia for his wallet, which was in her purse, because he wanted to use his ATM card to withdraw money from his own bank, which was nearby. Appellant then left the bank a second time, and when he returned, Wilnelia was standing outside. Wilnelia got back into appellant's car and they drove away. Wilnelia told appellant the teller had given her the money in the custodial accounts and that she was going to open another trust account for the children "at their bank[.]"
Wilnelia corroborated appellant's version of what occurred at the bank. She testified that appellant had no discussion with the bank teller and that she withdrew the money from the custodial accounts by herself without any difficulty:
[W]hen I went in front of the teller, he asked me "Who's that person," the name on the -- on the withdrawal slip, and I told him "That's me. That's Wilnelia DeJesus." And he said, "Fine. No problem." He just kept on typing in [sic] the keys and typing in other keys. And he went to the back. He got approved from the other teller that was in the back, came back, and he asked me "How do you want them?" And I answered, "I don't care." Okay. He did what he had to do with the paperwork. He gave me the money. "Have a good day."
Wilnelia also testified that the source of money in the custodial accounts was the Social Security Administration, which had been paying survivorship benefits for the children because her husband had died.
The Transit Police did not present the testimony of the bank teller. There is no explanation in the record for the failure to present this witness.
Regarding the May 15, 2004 incident, the ALJ found that there was "no convincing evidence that [appellant] used threats of arrest to deprive [Merida] of [the passbooks]." The ALJ concluded that even though appellant may have "threatened to take [Merida] to court" if she did give the passbooks to Wilnelia, this form of threat would not support a charge of conduct unbecoming a police officer. The ALJ also found insufficient evidence to support a finding that appellant "knew that Wilnelia, as custodian of the children, was not now entitled to the monies in the passbooks."
Regarding the May 17, 2004 incident, the ALJ noted that the Transit Police had not produced the bank teller as a witness and indicated that he was unwilling to "infer that [the teller] would have testified adversely to [appellant]." The ALJ also found the evidence insufficient to support a finding that appellant threatened or intimidated the bank teller. Based on these findings, the ALJ concluded that the Transit Police had failed to sustain the charge of conduct unbecoming a police officer with respect to either the May 15 or May 17 incidents.
In rejecting the ALJ's conclusion that the Transit Police failed to sustain the charge of unbecoming conduct regarding the May 15, 2004 incident, the Police Chief stated:
There is . . . undisputed testimony that [appellant] was yelling at [Merida] . . . to turn over the bank books. . . . Although she testified that she did not know that [appellant] was a police officer, she testified that he yelled at her, demanded that she turn over the passbooks to him and [Wilnelia] and threatened to take her to court.
I REJECT the finding of ALJ Giordano that this evidence does not support a charge of unbecoming conduct. To the contrary, I FIND that the mere presence of [appellant] during this highly charged family confrontation, while wearing a Department shirt and a police badge charm and then yelling at a frail 90 year old woman constitutes behavior that is inappropriate for a police officer to display - even while off-duty.
In rejecting the ALJ's conclusion regarding the May 17, 2004 incident, the Police Chief stated:
[Appellant] accompanied [Wilnelia] to the bank where he knew that she intended to withdraw funds from two bank accounts that did not belong to her.
[T]here is undisputed testimony and evidence that, while in the presence of the teller, [appellant] was wearing a shirt that said "Police" on it and was wearing a police badge charm. The ALJ concluded that there was insufficient evidence to determine his precise actions and what, if anything, he said to the teller. However, I do not agree that this is dispositive.
Rather, the statements made to Det.
Gonzalez by the teller contemporaneous with the events are highly significant and are uncontroverted.
The Police Chief then quoted at length from Detective Gonzalez's testimony concerning what the teller had told him about appellant's involvement in Wilnelia's withdrawal of the money in the custodial accounts. Based on this description of the bank teller's version of the May 17, 2004 incident, the Police Chief found that "[appellant's] mere presence while wearing a shirt and neck charm badge that identified him as a police officer was sufficient to have led the teller ('I don't want no problems with the cops') to allow [Wilnelia] to close out the two bank accounts that were not hers[,]" which constituted conduct unbecoming a police officer.
The Administrative Procedure Act requires an agency head to extend substantial deference to an ALJ's factual findings based on issues of credibility. N.J.S.A. 52:14B-10(c) provides in relevant part:
The agency head may not reject or modify any findings of fact as to issues of credibility of lay witness testimony unless it is first determined from a review of the record that the findings are arbitrary, capricious or unreasonable or are not supported by sufficient, competent, and credible evidence in the record. . . . In rejecting or modifying any findings of fact, the agency head shall state with particularity the reasons for rejecting the findings and shall make new or modified findings supported by sufficient, competent, and credible evidence in the record.
Under this provision, when the record of an administrative hearing involving lay witnesses "can support more than one factual finding, it is the ALJ's credibility findings that control, unless they are arbitrary or not based on sufficient credible evidence in the record as a whole." Cavalieri v. Bd. of Trs., Pub Employees Ret. Sys., 368 N.J. Super. 527, 537 (App. Div. 2004); see also S.D. v. Div. of Med. Assistance & Health Servs., 349 N.J. Super. 480, 481-83 (App. Div. 2002).
Although the Police Chief stated in the course of his opinion that he was "not questioning the findings of ALJ Giordano as to witness credibility[,]" it is clear he actually did reject certain of the ALJ's credibility findings. One of those findings was that there was not "sufficient evidence to support the conclusion that [appellant] knew that Wilnelia, as custodian of the children, was not now entitled to the monies in the passbooks." This finding was obviously based primarily upon the ALJ's assessment of the credibility of appellant's testimony. However, the Police Chief found, contrary to the ALJ, that "[appellant] accompanied [Wilnelia] to the bank where he knew that she intended to withdraw funds from two bank accounts that did not belong to her." The Police Chief did not give any explanation for his rejection of the ALJ's contrary finding. Moreover, this finding was an essential foundation of the Police Chief's conclusion that appellant's actions constituted conduct unbecoming a police officer, particularly with respect to the May 17, 2004 incident at the bank.
The Police Chief also erred in stating that "there is undisputed evidence [appellant] was wearing an NJTPD shirt" at the time of the May 15, 2004 incident. In fact, there was no evidence he was wearing such a shirt. Although there was evidence he was wearing a police badge charm around his neck, this did not violate any Transit Police regulation. Indeed, the Chief observed that such charms are "often worn by officers." In any event, Merida testified that she did not know appellant was a police officer when she turned over the passbooks to Wilnelia.
The Police Chief also erred in stating that there was "undisputed" testimony that appellant and Wilnelia yelled at Merida to turn over the bank passbooks to him. Appellant in fact testified that the dispute over the passbooks was between Wilnelia and Merida and that he 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."
Moreover, Wilnelia corroborated appellant's version of his role in the turnover of the passbooks and also stated that he was calm throughout the incident. Although the ALJ did not make an express finding of fact regarding the conflicting testimony on this point, the Police Chief gave no explanation for his rejection of appellant's and Wilnelia's testimony regarding Merida's turnover of the passbooks.
Furthermore, even if appellant yelled at Merida and told her that he and Wilnelia would "take her to court" if she did not turn over the bank passbooks, this would not by itself support the conclusion that he engaged in conduct unbecoming a police officer that justified his termination. Appellant testified that he believed Wilnelia was entitled to obtain the passbooks together with the children's other papers. Moreover, there is no evidence he was even aware at the time of the May 15, 2004 incident that the passbooks were for custodial accounts in the name of Merida. Therefore, there was no basis for rejecting his testimony regarding Wilnelia's entitlement to the passbooks and, even crediting Merida's version of the incident, appellant's conduct was at worst rude.
The specification of charges against appellant relating to the May 15, 2004 incident was that he and Wilnelia went to Merida's home and through intimidation and acting under the color of the 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.
However, the Transit Police failed to prove that appellant "act[ed] under the color of law" or "threatened [Merida] with arrest" during this incident, and the only "threat" that was proven was that he and Wilnelia would return to court to obtain clarification of Wilnelia's rights with respect to the bank passbooks. We conclude that this was insufficient to prove conduct unbecoming a police officer with respect to the May 15, 2004 incident.
Regarding the May 17, 2004 incident, as previously discussed, the essential foundation of the Police Chief's conclusion that appellant engaged in conduct unbecoming a police officer was his finding that appellant knew Wilnelia intended to withdraw money from two bank accounts to which she had no legal right. This finding was contrary to the ALJ's finding and therefore unsustainable.
The Police Chief's other findings regarding the May 17, 2004 incident were all based on Sergeant Gonzalez's testimony regarding what the bank teller told him about his communications with appellant. This testimony was obviously hearsay. Under the "residuum rule," such testimony is admissible in administrative proceedings. Weston v. State, 60 N.J. 36, 50-51 (1972).
However . . . a fact finding or a legal determination cannot be based upon hearsay alone. Hearsay may be employed to corroborate competent proof, or competent proof may be supported or given added probative force by hearsay testimony. But in the final analysis for a court to sustain an administrative decision, which affects the substantial rights of a party, there must be a residuum of legal and competent evidence in the record to support it.
It is not possible to state a hard and fast rule as to the extent hearsay may be utilized in evaluating the sufficiency of the evidentiary basis of a particular administrative determination. Suffice it to say that much may be left to the discretion of the administrative official who should be aware of the principle which warrants reception of hearsay, as well as the qualification thereon that the decision should not be predicated on hearsay alone. [Citations omitted.]
See also Dolan v. City of East Orange, 287 N.J. Super. 136, 145 (App. Div. 1996).
In this case, the Police Chief based his findings regarding appellant's involvement in the withdrawal of the money from the custodial accounts solely on Detective Gonzalez's hearsay testimony regarding what the bank teller told him. The only other evidence regarding appellant's role in the withdrawal of the money was the bank surveillance videotape, which the ALJ described as "inconclusive, at best[,]" and the Police Chief did not view.
We note that the ALJ's decision alluded to the insufficiency of the Transit Police's proofs regarding appellant's alleged conversations with the bank teller, stating that "[t]he bank teller did not testify, and I will not infer that he would have testified adversely to [appellant]." We also note that the bank teller was apparently available to testify. Indeed, at the end of the January 10, 2006 hearing date, the Deputy Attorney General representing the Transit Police stated that the bank teller would not be available at 9 a.m. the next scheduled hearing date "because he'll be on other bank business," but that "they [presumably referring to the teller's supervisors] expect that he should be able to get here. I don't know what time." However, there was no mention of the bank teller on the record at the next hearing date. Therefore, we cannot determine whether the Transit Police made a strategic decision not to call the bank teller as a witness or whether he became unavailable before the next hearing date and the Transit Police decided not to seek a continuation of the hearing so he could be called as a witness.
Finally, in view of the ALJ's finding that the evidence did not support a finding that appellant knew that Wilnelia's withdrawal of the money in the custodial accounts was improper, we conclude substantially for the reasons set forth in the ALJ's decision that a finding of conduct unbecoming a police officer would not have been warranted even if the bank teller had been called as a witness and presented a version of the incident that conformed with Detective Gonzalez's account of his interview of the teller.
Accordingly, we reverse the final decision of the Police Chief terminating appellant's employment and remand the matter to the Transit Police for reinstatement of appellant and a determination of mitigated back pay for the period of his suspension as well as any other emoluments of employment of which he was deprived as a result of the termination.