April 28, 2009
IN THE MATTER OF JOAN IVAN
On appeal from a Final Administrative Decision of the New Jersey Merit System Board, Docket Nos. 2003-4093 and 2004-967.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 14, 2009
Before Judges A. A. Rodríguez, Payne and Lyons.
Following a hearing conducted on April 15, 2003, appellant, Joan Ivan, a Middlesex County Sheriff's Officer, was suspended for thirty days as the result of disciplinary charges stemming from her alleged failure to truthfully report smoking by a fellow officer while in an official vehicle. In contrast, the officer committing the prohibited offense, after pleading guilty, was given a four-day suspension that could be served by use of vacation days. Ivan appealed to the Merit System Board on May 16, 2003.
Thereafter, on August 22, 2003, Ivan was terminated when, in nine attempts over three days, she was unable to requalify for use of her service weapon. She appealed on September 12, 2003, and she filed an order to show cause on September 19, 2003, in which she contended that the Sheriff's Department had violated her right to due process of law as the result of its failure to conduct a hearing prior to termination. The Department reinstated Ivan and served her with a preliminary notice of disciplinary action on September 29, 2003. Following a hearing on September 30, 2003, Ivan was served, on October 14, 2003, with a final notice of disciplinary action removing her from her position.
The two matters were referred to the Office of Administrative Law for a hearing, where they were consolidated for that purpose without objection. Following the hearing, at which testimony was given by numerous witnesses, the administrative law judge (ALJ) recommended dismissal of the charge leading to Ivan's suspension, but affirmance of the termination decision. No attorney's fees were awarded. The Merit System Board adopted the ALJ's decision, and this appeal followed. In it, Ivan challenges the Board's failure to award counsel fees in connection with her appeal from the thirty-day suspension, and she challenges the Board's adoption of the ALJ's findings with respect to her termination and the ALJ's legal ruling with respect to the admissibility of expert testimony in connection with her termination.
The record indicates that Ivan was employed by the Middlesex County Sheriff's Department on January 4, 1999. Thereafter, as required by N.J.S.A. 52:17B-68, Ivan attended the Somerset County Police Academy, from which she graduated on June 15, 1999. While at the academy, she received training in the use of weapons. Additionally, Ivan had prior training in the use of firearms while a member of the United States Navy.
As a sheriff's officer, Ivan was required to requalify for use of her service weapon twice per year. See Attorney General's Semi-Annual Firearms Qualification and Requalification Standards for New Jersey Law Enforcement (Attorney General's Standards) § 2 (definition of Semi-Annual Qualification), § 4 (Agency Training and Qualification Requirements), and § 5 (Qualification Program) (Revised June 2003). To requalify, the candidate must shoot sixty rounds from various positions on the range, and to score eighty percent or forty-eight shots within the target. Id. Appendix A. Following a practice round, the candidate is given three opportunities to qualify. If the candidate fails, the candidate is given additional instruction and scheduled for an additional day at the range. The Attorney General's guidelines do not specify the number of opportunities that a candidate must be afforded prior to termination, leaving that decision in the discretion of the appointing authority. Id. § 9 (Non-Qualifying Participants). That section provides, in relevant part:
A participant who fails to achieve a passing score on a prescribed qualification course shall receive remedial instruction. This instruction shall be provided after the supervising firearms instructor analyzes the problems which may have led to the failure. The time allotted and method of remedial training to be conducted shall be determined by the supervising firearms instructor. The supervising firearms instructor, in consultation with the firearms instructors and the participant, will:
1. Review factors which may have contributed to or caused a participant's failure to qualify, including a check of the participant's firearm.
2. Document any subsequent attempts to qualify and the results of those attempts.
If after the remedial training and subsequent attempts to qualify the participant still does not fire a passing score, the supervising firearms instructor shall report this information to the chief or agency executive. The chief or agency executive will then determine what action is appropriate.
On February 27, 2002, the Middlesex County Sheriff's Department promulgated an inter-office memo, dealing with range qualifications, which stated:
The following are new procedures regarding range qualifications. They will be adapted into our Policy & Procedure Manual but until then, all sworn personnel will sign for a copy of this memo.
Upon an Officer's first day of qualification he/she will have one practice round and three (3) attempts at qualifications. The department shall pay for the practice round of ammunition and up to a maximum of three attempts to qualify by the Officer. Thereafter, the Officer shall be responsible for providing any subsequent ammunition. The type of ammunition shall be determined by the Range Master or his designee, and is not subject to deviation. The cost for this ammunition will be borne by the Officer. If the Officer does not qualify on the scheduled range date, his/her weapon will be retained by the Range Master. The Officer will report the next day to work in a modified duty capacity. The following day he/she will report to the range for remedial training.
Remedial training will consist of classroom instruction and practical, which includes firing the weapon. This will be under the control of the Range Master or his designee.
After the remedial training is completed the Officer will be scheduled for qualifications once again.
If the Officer should fail again, this remedial training procedure will be repeated. The cost of the training ammunition will be borne by the Officer. If the Officer is not successful he/she may face dismissal for failure to perform the duties of a Sheriff's Officer.
During the early years of Ivan's employment by the Sheriff's Department, Ivan carried a nine millimeter pistol, and she qualified for use of that gun on a semi-annual basis from 1999 to April 2002, never needing more than one day to qualify. In April 2002, Ivan was issued a .45 caliber H&K weapon. She failed to qualify with that weapon on April 10, April 12, April 15, and April 17, but achieved a passing score on her third attempt on April 18, 2002. In September 2002, Ivan failed to qualify on September 4 and September 5, but qualified on September 6. In her next qualification round, Ivan failed to qualify on March 27, April 2, and April 4, 2003. At the Sheriff's recommendation, Ivan then took two weeks of unpaid leave, receiving coaching during this period. Upon her return, Ivan qualified on April 24 on her first attempt.
In April 2003, Ivan filed a complaint with the Equal Employment Opportunity Commission and filed suit in federal court against the Sheriff and various officers, alleging sexual discrimination, creation of a hostile work environment, and harassment. The events leading to Ivan's suspension, which the ALJ found were the result of personal animus, occurred one month later in May, 2003. Our review of the opinion of the ALJ discloses that he took into account Ivan's claims in the federal suit and the unfounded nature of the charges leading to Ivan's suspension when considering the circumstances leading to Ivan's termination.
Ivan again was required to seek requalification with her weapon in the summer of 2003. Her first attempt occurred on August 15, 2003, at which time she received scores of 51.7%, 70% and 68.3%, whereas an 80% score was required to qualify. During one of the requalification rounds, Ivan was observed to be crying. Ivan was approached by the Range Master, Officer Ansaldo who, upon determining that she was not physically ill or a safety threat, required her to continue. Ivan next sought to requalify on August 20, 2003, and she again failed all three rounds. A final attempt occurred on August 22, 2003, at which time Ivan again failed. During her final attempt, she was approached on the range by Officer Ansaldo. Ivan alleges that Ansaldo told her that if she were to fail that day, she would be required to see the Sheriff. It is Ivan's position that she was doing well prior to her conversation with Ansaldo, but that the added pressure occasioned by his comments caused her to fail.
Testimony was given at the hearing by Sheriff Spicuzzo. The Sheriff stated that he had not made a decision to terminate Ivan until she walked into his office on August 22, 2003 and was given her final score. The Sheriff testified, as he had done previously, that he terminated Ivan because of her failure to meet minimum requirements and her inability to cope with pressure.
In his opinion recommending affirmance of the termination decision, the ALJ found that the Sheriff had properly exercised his discretion to terminate Ivan for failing to qualify with her firearm in August 2003. The ALJ acknowledged Ivan's arguments that in reaching his conclusion he was required to consider "[e]vidence of divergence from past practice, the inability or refusal of range personnel to follow State guidelines and the personal animus of several employees towards appellant." The ALJ did so, addressing each of Ivan's arguments in turn. At the outset, the ALJ observed that a dispute existed as to the number of attempts a sheriff's officer should be given to achieve requalification. In this regard, he concluded that the Attorney General's Standards specifically authorize the sheriff to establish a maximum number of qualification rounds, prior to the exercise of his discretion to terminate the employee. The ALJ found further that the Middlesex County Sheriff had "appropriately set that number at nine shoots over a three-day period."
The ALJ next addressed Ivan's argument that other sheriff's officers had failed their first nine attempts, but had been given further opportunities to qualify - a matter that was not contested. Nonetheless, the ALJ found:
Appellant was given extra attempts on two occasions before her final failure in August 2003. In April 2002, she was given fifteen shoots. She again failed in her first nine shoots in April 2003. She was given special consideration by the sheriff, in that she was permitted two weeks of leave to relax and practice prior to her tenth attempt.
Upon her return from leave, she still failed in her tenth attempt, but succeeded in her eleventh. The failure that caused her termination in August 2003 was her third in four attempts. None of the evidence identifies any other [sheriff's officer] who had failed so consistently. Thus, it is difficult to attribute much significance to the claims of divergence from past practice.
The ALJ also addressed Ivan's argument that range personnel had failed to follow the Attorney General's Standards because they had not completed a written comprehensive report to the Sheriff for each failed attempt at qualification. However, after reviewing the Standards, the ALJ determined that they contained no requirement that a written report be given to the chief or agency executive. The only written report required was one to the county prosecutor.
The ALJ additionally addressed Ivan's argument that the personal animus of range personnel, including Officers Ansaldo and Papi, affected her ability to qualify. In this regard, the ALJ credited the testimony given by Officer Hernandez confirming that Officer Ansaldo had approached Ivan during her last qualification attempt while she was firing from the ten-yard line, and that after the conversation, which Hernandez could not hear, Ivan did not look happy. The ALJ also considered Ivan's testimony regarding other incidents involving Ansaldo, as well as her testimony that Papi had made mocking comments and gestures while Ivan was on the firing line and that he on one occasion allegedly had stalked her. Nonetheless, the ALJ concluded:
The behavior attributed to Papi and Ansaldo, if accurately described, could establish that appellant had not been provided with a fair opportunity to qualify. This is especially true in light of my conclusion that her conviction and suspension from the smoking incident were the result of animus on the part of the sheriff and/or his staff. However, as shown very clearly in her testimony on cross-examination, appellant never complained about the behavior of Papi or Ansaldo in any of the prior forums wherein she testified. Most noteworthy is her deposition testimony where she described her complaints about the qualification process. She took the time to list them numerically:
1. I don't know if those are my targets;
2. I kept requesting remedial help which I was not given;
3. I felt I was being treated differently, that's it.
[Deposition transcript, Vol. 6, p.116.]
These reasons, given during a deposition where she was represented by counsel, make no mention whatsoever of any harassment by Ansaldo and Papi. Likewise, her statement to the sheriff immediately after her last failed attempt made no mention of any harassment. Similarly, every member of the range staff who observed appellant in her qualification attempts in August 2003 testified that he or she observed no harassment of appellant by Papi, Ansaldo, or any other member of the range staff. All of this evidence tends to prove that any animus towards appellant held by any of respondent's personnel had no effect on the fairness of appellant's attempts at qualification.
The ALJ likewise rejected Ivan's claim that the training afforded to her was inadequate, finding "ample testimony from numerous witnesses who identified appellant's problems and instructed her how to correct them." The ALJ noted testimony by Officer Baran that Ivan lacked strength, particularly when performing one-handed firing. Additionally, the ALJ noted Baran's testimony that Ivan had an improper trigger squeeze, improper sight-picture, improper breath control, and improperly timed firing, defects that were addressed by Baran, Officer Hernandez, Officer Kurtz, and Officer Ansaldo. The ALJ found further that Ivan's own private instructor, Sergeant Redding, "agreed with the range staff that slapping the trigger was a significant problem" for Ivan. The ALJ concluded:
The evidence presented in this matter proves that appellant is responsible for her failure to qualify. Although in her view the range staff has a duty to guarantee her successful qualification, such an outlook is unrealistic and ignores the individual characteristics and effort that must be a part of this process. An instructor can only do so much before the ultimate responsibility passes to the individual firing the weapon. Appellant was not willing to carry out her part of the bargain. This is most obvious in her abject failure to make any attempt to practice prior to the qualification course. Her prior history of failing should have led her to the conclusion that at some time prior to her first qualification shoot she should practice-fire her weapon. . . .
Appellant readily admitted that she never practiced until she failed her first attempt. She admitted that in the month preceding her August 2003 attempt, when she was suspended from duty, she made no attempt to practice with her weapon. This, even though she was suspended from work activities for that month. Based on the foregoing, I CONCLUDE that in spite of any animus that may have been established by her unwarranted suspension for the smoking incident, appellant's inability to qualify with her service weapon was not the result of any inappropriate conduct or action by the respondent. It is clear that the most obvious and significant cause of appellant's failure to qualify was her own decision not to prepare for the qualification round in August 2003.
On appeal, Ivan challenges the adoption by the Merit System Board of the ALJ's conclusion that Ivan received the required minimum number of "healthy" attempts to qualify with her firearm, claiming the Board's action was arbitrary, capricious and unreasonable. In that connection, she argues that the round on August 15, 2003 when she was observed to be crying was not "healthy." She similarly characterizes the round on August 22 when, according to Officer Hernandez, she was approached by Officer Ansaldo.
It is noteworthy that the record contains no adequate description of what constitutes a healthy round. In this regard, Ivan states in her brief that:
The term "healthy" refers to a qualification attempt where the officer is mentally and physically able to shoot his/her weapon.
The source of the definition of healthy adopted by Ivan is not specified, and the term does not appear in the Attorney General's Standards or Departmental material.
Ivan then states that if a person is removed from the firing line for health or safety reasons, that person would be entitled to a re-shoot. However, the record demonstrates that Ivan declared herself to be healthy when she appeared for each of the August 2003 attempts. Although she suggests that she should have been permitted another opportunity to qualify once she became emotional, we do not find any support for that contention. Indeed, our review of the Attorney General's Standards suggests that an element of pressure is intentionally built into the specified requalification procedures. The ALJ was entitled to conclude, as he evidently did, that Ivan's emotional response constituted a reaction to pressure, and not a reaction to harassment on the range. George Harms Constr. Co., Inc. v. Tpk. Auth., 137 N.J. 8, 27 (1994).
Ivan also claims that Officer Ansaldo's approach to her during her final qualifying round on August 22 rendered that round unhealthy. In this regard, Ivan claims that Ansaldo approached her in an effort to increase the pressure upon her. Nonetheless, the ALJ was entitled to conclude, that Ansaldo was merely fulfilling his duty to ensure Ivan's safety on the range, See Attorney General's Standards, supra, § 7 (Supervising/ Firearms Instructor Responsibilities), particularly in light of Ivan's testimony that she had been crying while on the range and the absence of any evidence that she had reported Ansaldo's conduct to the Sheriff when she faced termination. The ALJ was not required to accept Ivan's uncorroborated version of what Ansaldo had said. We thus reject Ivan's argument that she was given insufficient opportunity to qualify with her weapon.
On appeal, as she did before the ALJ, Ivan argues that the judge should have admitted at the hearing the testimony of Thomas P. O'Donnell, Ivan's firearms requalification expert. O'Donnell is a retired Lieutenant from the Mercer County Department of Public Safety, where he served for twenty-six and one-half years. He is an accomplished marksman with an operating knowledge of a wide variety of weapons. The majority of his experience in law enforcement had been as a trainer. In his report, O'Donnell concluded:
It is my opinion within a reasonable degree of certainty, that if Officer Ivan was afforded the appropriate transitional training, remedial training, and ability to practice with her own duty weapon, she would have ultimately achieved a passing score in August 2003. Further, it's my opinion that Officer Ivan's attempts to qualify were unfairly hampered by the failure of the Range Instructor to address Officer Ivan's emotional condition and his inability to assure her a fair and unencumbered attempt to qualify. In addition, it is my opinion that the Middlesex County Sheriff's Department inappropriately limited the number of attempts to qualify by Officer Ivan and failed to provide reasonable alternative remediation efforts as per their past practice. Lastly, it is my opinion that Officer Ivan did, in fact, shoot a qualifying score in August 2003 as evident by my analysis of target C-18. As a result of these deficiencies, Officer Ivan was improperly terminated from her position as a Sheriff's Officer with the Middlesex County Sheriff's Department.
The ALJ concluded that testimony embodying these opinions, even insofar as it was relevant, consisted of factual interpretation that required no special expertise, and that it was therefore barred. The judge similarly barred testimony by the County's expert. Subsequently, the ALJ revisited his ruling regarding Ivan's expert, determining that he would allow expert testimony only with respect to whether target C-18 should have been scored as passing.*fn1
N.J.R.E. 702 provides:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.
The Court has emphasized that such testimony is inadmissible unless "so distinctively related to some science, profession, business or occupation as to be beyond the ken of the average layman." State v. Kelly, 97 N.J. 178, 208 (1984); see also State v. Odom, 116 N.J. 65, 71 (1989). A judge, like a jury, may hear expert testimony in its role as factfinder, and "[a] judge sitting on a bench trial is in the best position to determine if expert testimony on a particular issue will assist that judge." N.J. Div. for Youth & Family Servs. v. Z.P.R., 351 N.J. Super. 427, 439 (App. Div. 2002) (citing Wilkerson v. Pearson, 210 N.J. Super. 333 (Ch. Div. 1985)).
However, expert testimony is inadmissible insofar as it addresses matters of law, which are the responsibility of the court to decide, alone. See Boddy v. Cigna Prop. and Cas. Cos., 334 N.J. Super. 649, 659 (App. Div. 2000) (interpretation of contract provision); Troxclair v. Aventis Pasteur, Inc., 374 N.J. Super. 374, 384-85 (App. Div. 2005) (statutory interpretation). Nor may an expert opine as to the application of law to fact. See In re Commitment of D.M., 313 N.J. Super. 449, 454, 456 (App. Div. 1998) (psychiatrist may describe significance of symptoms of mental condition but may not testify whether mental condition meets statutory criteria for commitment); see also State v. Nesbitt, 185 N.J. 504, 516-17 (2006) (discussing appropriate parameters of hypothetical questions, given the prohibition on expert testimony embracing ultimate issue at trial).
Pursuant to the above principles, O'Donnell's testimony would be admissible only insofar as it would aid the ALJ as a factfinder in understanding the significance of evidence in the record in light of O'Donnell's specialized training and experience. However, our review of O'Donnell's report satisfies us that the vast majority of his opinions would not have been of the sort that would aid the ALJ. Many of his opinions were interpretations of fact that required no special expertise, such as:
To allow an officer that is visibly upset to remain on the firing line with a loaded weapon would be an extreme liability and place all persons present in danger.
I would further state that if a shooter is permitted to continue to shoot a failing qualification course without intervention to correct their improper habits and/or techniques, this will actually reinforce their improper habits and techniques which continually lead to the same negative results.
Additional comments by O'Donnell focused on whether Ivan's allegedly troubled emotional state or the officers' alleged continued harassment during Ivan's firearm qualification attempts might affect the outcome of those attempts. However, drawing that causal connection does not require expert guidance. Similarly, the ALJ needed no guidance to determine, on the basis of the lay testimony provided at the hearing, whether or not Ivan had been afforded proper remedial training. Furthermore, O'Donnell's testimony was inadmissible insofar as it purported to interpret the Attorney General's Standards, which was a matter for the ALJ, unaided by expert testimony.
We recognize that some of O'Donnell's conclusions are informed by his specialized training and experience. For example, although obvious from the results of her qualification trials that Ivan experienced difficulty adjusting to the .45 caliber weapon issued to her in April 2002, O'Donnell explained specifically how the difference in weapons might have contributed to her difficulty. Nonetheless, because O'Donnell did not then demonstrate any specific deficiencies in Ivan's training that would have alleviated that difficulty, the testimony would not aid the ALJ in reaching his conclusions in the case.
In summary, our review of O'Donnell's report in this matter in light of the principles and precedent we have cited satisfies us that the ALJ did not abuse his discretion in determining to bar O'Donnell's testimony at trial. The judge was not required to accept O'Donnell's conclusion that Ivan in fact had forty-nine hits on her last attempt, and his determination to the contrary was properly based upon substantial credible evidence in the record.
As a final matter, Ivan claims an entitlement to counsel fees on her successful appeal from her suspension. In this regard, N.J.S.A. 11A:2-22 authorizes the Merit System Board to "[a]ward back pay, benefits, seniority and reasonable attorney fees to an employee as provided by rule." The relevant administrative rule provides:
The Merit System Board shall award partial or full reasonable counsel fees incurred in proceedings before it and incurred in major disciplinary proceedings at the departmental level where an employee has prevailed on all or substantially all of the primary issues before the Board. [N.J.A.C. 4A:2-2.12(a).]
In this case, the Board concluded that:
In the case at hand, the Board agrees with the appointing authority's argument that given the interrelated nature of these matters, and the fact that the appellant's removal has been upheld, the appellant has not prevailed on all or substantially all of the primary issues of the appeal. Consequently, as appellant has failed to meet the standard set forth in N.J.A.C. 4A:22-2.12(a), counsel fees must be denied.
Ivan argues on appeal that the Board's denial of attorney's fees was improper because the initial disciplinary action against Ivan and her subsequent termination were largely unrelated. In the circumstances presented, she contends that the consolidation of the two matters for hearing, occurring as a matter of efficiency, should not operate to deprive her of counsel fees to which she would have been entitled if the matters had been tried separately, as they would have been if the occurrences had not taken place in such a short temporal frame.
Additionally, Ivan argues as a matter of public policy she should not have been deprived of full vindication, having succeeded in the assertion of her civil service rights in connection with the suspension. See Burris v. Police Dept., 338 N.J. Super. 493, 497 (App. Div. 2001).
We acknowledge that Ivan's arguments have some merit. Nonetheless, we conclude that the two matters were consolidated because both were founded on Ivan's allegations of ongoing harassment, discrimination against women, and the existence of a hostile work environment. Although Ivan prevailed in part on those allegations, as the Board found, she did not prevail on "all or substantially all of the primary issues before the Board." We conclude that the Board's decision constituted a valid interpretation of its regulation, and that we owe great deference to that interpretation, which is not inconsistent with the enabling statute. Div. of Alcoholic Beverage Control v. Maynards, Inc., 192 N.J. 158, 177 (2007). Accordingly, we affirm the Board's determination not to award partial counsel fees.