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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...