September 8, 2009
IN THE MATTER OF SERGEANT MARYELYN CONWAY.
On appeal from a Final Decision of the New Jersey Transit Police Department.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 25, 2009
Before Judges Sabatino and Chambers.
Sergeant Maryelyn Conway appeals from the administrative determination of the New Jersey Transit Police Department suspending her for a period of four days for two related minor disciplinary infractions. We affirm.
On the night of December 13, 2004, a car crashed onto an embankment above the New Jersey Transit train tracks in Waldwick. The vehicle was in a precarious position, with only a small tree preventing it from falling onto the tracks. Due to the danger that the vehicle might fall, train traffic in both directions was stopped.
Conway, a sergeant with the New Jersey Transit Police Department, was the supervising officer on duty at the time of these events. She did not go to the scene of the accident, but rather New Jersey Transit Police Officer Victor Migliorino was sent there. He reported to her that the Waldwick fire department, police, and emergency medical personnel were present, and that Waldwick personnel had taken charge of the scene. He did not believe that Conway's presence at the scene was necessary. She later deployed two other officers to the scene, contending that she did so in order that one of the officers could acquire more experience. She received periodic reports of the status of the scene from the officers present. She acknowledged in one radio transmission that it would have been easier if she were present. The New Jersey Transit police officers present did not play an active role in attending to the accident scene since Waldwick personnel were in charge.
However, Migliorino relayed to New Jersey Transit Rail Operations personnel when train travel was permissible. At one point, New Jersey Transit Rail Operations personnel began to "walk through" trains in one direction. About an hour and one half after Conway was advised of the incident, the car was removed, and normal train traffic resumed.
Disciplinary charges were filed against Conway on January 10, 2005, due to her failure to go to the accident scene. She was charged with violating General Order 3.11, Item #4, which requires a police sergeant, as part of her duties and responsibilities, to "direct and participate in activities at the scene of emergencies." Conway was also charged with "unsatisfactory performance" due to her failure to respond to the scene herself.
The disciplinary hearing, originally scheduled for June 6, 2006, was adjourned at Conway's request, in order that discovery could be provided to her counsel. That discovery was provided on June 8, 2006. The hearing, then scheduled for June 20, 2006, was further adjourned by Conway. The case was thereafter scheduled for 2008. The record does not adequately explain the reasons for the delay.*fn1
The internal disciplinary hearing was conducted on May 20, 2008. At the hearing, Conway's commanding officer Captain Al Stiehler, Officer Migliorino, and Conway testified. In a lengthy written opinion, the hearing officer found the charges to be substantiated. He found that Conway "had information that there were still open issues at the scene that could be reasonably expected to necessitate a supervisor response, along with an available car... to utilize and the decision was made not to respond until the car fell to the tracks." He also noted that Migliorino did not know how to ascend to the tracks from his location and as a result, "he did not maintain communications and coordination with [New Jersey Transit Rail Operations] personnel at the scene." He found that "[t]he inaction of the three responding [New Jersey Transit Police Department] officers (two  were novice officers) along with their inability to articulate and carry out their expected duties at this scene speak directly to the necessity for on-scene direction and supervision." In the final agency decision dated July 1, 2008, New Jersey Transit Police Chief Joseph C. Bober found Conway guilty of both charges and imposed a two-day suspension for each charge, for a total suspension of four days. Conway now appeals that determination.
In this appeal, Conway raises due process and fundamental fairness issues, maintaining that the three-year delay between the filing of the charges and the hearing violated her constitutional rights. In addition, she asserts that in conducting the investigation in this matter, New Jersey Transit violated the internal affairs guidelines promulgated by the New Jersey Attorney General's Office. Conway also contends that New Jersey Transit has failed to meet its burden of proof with respect to the charges.
In reviewing an agency decision, we must determine whether the agency followed the law, whether substantial evidence in the record supports the decision, and "whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors." In re Herrmann, 192 N.J. 19, 28 (2007) (quoting Mazza v. Bd. of Trs., 143 N.J. 22, 25 (1995)). We give "substantial deference to the agency's expertise and superior knowledge of a particular field." Ibid. An agency's decision will not be overturned unless it is "arbitrary, capricious, or unreasonable, or  it lacks fair support in the record." Id. at 27-28.
We note at the outset that the record contains substantial credible evidence supporting New Jersey Transit's finding that Conway committed the two infractions. General Order 3.11 provides that as part of the "regular duties" of a police sergeant at New Jersey Transit, the sergeant "[d]irects and participates in activities at the scene of emergencies." This Conway did not do, and the record, including her own testimony, provides substantial evidence that she was aware of the nature of the accident scene and did not go to it, in contravention of this directive. The hearing officer found that she had enough information to know that there were "issues at the scene that could be reasonably expected to necessitate a supervisor response" and that she had a car available to go to the scene, but failed to do so. The record contains no evidence of a competing responsibility preventing her from responding to the scene.
We find no merit in Conway's contention that her due process rights or that principles of fundamental fairness were violated because of the delay between the filing of the charges against her on January 10, 2005, and the hearing conducted on May 20, 2008. Nor do we find that principles of laches bar the prosecution due to this gap in time.
The statutes governing New Jersey Transit police provide that a disciplinary complaint must be filed against the New Jersey Transit police officer within forty-five days from the date on which the complaining officer obtained sufficient information to file the complaint. N.J.S.A. 27:25-15.1c. Since the events took place on December 13 and 14, 2004, and the disciplinary charges were filed on January 10, 2005, the complaint was timely filed.
Conway cites no statute or regulation that places a time limitation for disposing of a timely filed disciplinary complaint against a New Jersey Transit police officer. While she does reference N.J.S.A. 40A:14-147, which places a thirty day limitation on disposing of complaints against county and municipal police officers, that statute does not apply to New Jersey Transit police officers. The New Jersey Transit Police Department was established by N.J.S.A. 27:25-15.1 to work for New Jersey Transit Corporation, a state agency, N.J.S.A. 27:25-4(a). New Jersey Transit police officers are governed by the "rules and regulations, directives, advisory opinions, and other guidelines" of the Attorney General. N.J.S.A. 27:25-15.1. Plaintiff has not pointed to any promulgation by the Attorney General setting forth a time frame in which a disciplinary hearing for a New Jersey Transit police officer must be held.
In support of her argument that the delay violated her constitutional rights, Conway refers to the following legal principles:
Due process is not a rigid concept. Its flexibility is in its scope once it has been determined that some process is due. It calls for such procedural protections as the particular situation demands recognizing that not all situations calling for procedural safeguards require the same kind of procedure. Relevant considerations are the public interest, the rights involved and the nature of the proceeding. The manner of holding and conducting the hearing may vary.
As long as principles of basic fairness are observed and adequate procedural protections afforded, the requirements of administrative due process have been met. [Kelly v. Sterr, 62 N.J. 105, 107, cert. denied, 414 U.S. 822, 94 S.Ct. 122, 38 L.Ed. 2d 55 (1973) (citation omitted).]
We find no constitutional violations here. Conway had written notice of the charges, the opportunity to present evidence and witnesses, the ability to cross-examine witnesses, and representation by counsel. Principles of procedural due process and fundamental fairness are not violated merely because a fact-finding hearing takes place more than three years after the underlying event. Conway contends that she was prejudiced by the delay in that the memories of witnesses were dimmed due to the passage of time and that not all of the audiotapes of the time in question were preserved. However, the fundamental facts surrounding the events and supporting the charges were undisputed, including the fact that Conway was aware of the nature of the accident, that she failed to go to the scene, and that she sent junior officers in her place when she could have gone there herself. While it would have been preferable to have the disciplinary matter adjudicated earlier, we find no constitutional violation in the delay.
For similar reasons, Conway's equitable defense of laches fails. The defense of laches may be imposed where no statute of limitations governs the matter. Nw. Covenant Med. Ctr. v. Fishman, 167 N.J. 123, 140 (2001). For the defense of laches to succeed, the party must show "an 'inexcusable delay in asserting a right'" and the delay must have been prejudicial. Ibid. (quoting City of Atl. City. v. Civil Serv. Comm'n, 3 N.J. Super. 57, 60 (App. Div. 1949)). "The primary factor to consider when deciding whether to apply laches is whether there has been a general change in condition during the passage of time that has made it inequitable to allow the claim to proceed." Id. at 141. For the reasons noted above, we do not find that Conway was inequitably prejudiced by the delay.
The remaining arguments of Conway do not merit further discussion. R. 2:11-3(e)(1)(E).