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In re Conway

September 8, 2009

IN THE MATTER OF SERGEANT MARYELYN CONWAY.


On appeal from a Final Decision of the New Jersey Transit Police Department.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.

I.

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 ...


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