On appeal from a Final Decision of the Civil Service Commission, Docket No. 2007-199.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing and LeWinn.
Eugene I. Otto appeals from a Final Decision of the Civil Service Commission finding that his removal as a member of the Irvington Police Department was justified and dismissing his appeal. After reviewing the record in light of the contentions advanced on appeal, we affirm.
On February 1, 2006, Otto was served with fifteen separate disciplinary charges for violating various provisions of the Irvington Police Manual. Various offenses were alleged, including withholding information, failing to perform his duties, insubordination, using derogatory terms, and being untruthful. Following a departmental hearing, all the charges were sustained, and Otto was removed from the force. He appealed to the Merit System Board (now known as the Civil Service Commission), and a hearing was held before an administrative law judge who sustained the following charges: one count of conduct unbecoming a public employee, in violation of N.J.A.C. 4A:2-2.3(a)(6); two counts of being untruthful, in violation of Township Rule 3.10.9; and one count of using derogatory terms, in violation of the Township Rule 3.1.27. The administrative law judge also concluded that there was insufficient evidence to sustain the remaining charges, and they were dismissed. He also concluded that the charge of using derogatory language was not of sufficient import to warrant significant discipline, but the remaining charges constituted "mutinous and disruptive behavior" that, in light of Otto's disciplinary history, warranted his dismissal from the force. The Civil Service Commission agreed, and this appeal followed.
The charges against Otto arose primarily out of an incident that occurred in the early morning hours of September 7, 2004. Otto testified that between 2:00 and 2:30 A.M., he received an anonymous telephone call informing him that "something is getting ready to go down between Lieutenant Mitch[ell], Doral Love and Ana Perez." Mitchell, Love and Perez were all members of the Irvington Police Department, and Otto said the caller gave a specific address at which this incident was to occur, which happened to be Perez's home. Otto understood that Love and Perez had dated one another but had broken up. He also understood that Perez had since begun dating Mitchell.
Otto was at home and off-duty when he received this call. He said he took his video camera, got into his car and drove to the area, arriving at approximately 3:00 A.M. He parked his car at a spot where he would not be observed but yet would have a view of Perez's house. He said he saw Officer Love pull up in his patrol car. He got out, leaving his partner in the car. He went and knocked on the door of Perez's house. Otto said he saw Perez open the door and come out of the house to talk to Love. He characterized their conversation as a "verbal argument," based upon their hand gestures, although he could not hear what they said to each other. A taxi then pulled up, Perez got into it, and the taxi drove away. Love returned to his patrol car and also drove away.
Otto, however, said he remained on the scene to see if anything further developed. At around 6:00 A.M., Love returned. This time, he was out of uniform and driving his personal car. Shortly after Love's return, Mitchell came out of the house and the two men conversed. Otto again characterized the discussion as an argument based upon the hand gestures he saw; he could not hear what the men said to each other.
Otto said that while the two men were speaking, Michael Chase, Chief of the Irvington Police Department, pulled up in an unmarked police car. Chase lowered the window of the car and spoke to the two men. Otto said this took one to two minutes; Chase, who said he just happened upon the two men as he was driving from a personal appointment, said it was just a few seconds. Chase then drove off, and Love and Mitchell departed, as did Otto, who said he had taped all of these events on the video camera he had brought with him. Otto did not immediately tell anyone else what he had witnessed.
Nearly a year later, in August 2005, Otto made his first mention of this incident in a written report to Irvington's Director of Police, Michael Damiano. The principal subject of this report was Otto's complaint that he was being subjected to continual harassment, which commenced, he said, after he told Chief Chase that in his opinion, Chase "was worst [sic] than Chief Steven Palamara during the time he was chief." In this report, Otto made the following allegation:
Chief Michael Chase was present when three Irvington Police officers were involved in a DOMESTIC VIOLENCE incident . . . and as chief of police he did nothing. Chief Michael Chase sworn [sic] in two depositions he was never on . . . [at] said DOMESTIC VIOLENCE incident, time and date. When infact [sic] this officer (Eugene I Otto) saw him on scene and video taped him on scene. Chief Michael Chase has not being [sic] charged with TRUTHFULNESS.
Several weeks later, on September 19, 2005, Otto filed a second report with Damiano, complaining of harassment and a hostile working environment. This report stated in full:
At approximately 1330 on September 5, 2005, while on vacation in Antigua West Indies, at my second place of residence, I received a phone call from my wife, who was in New Jersey. My wife angrily and furiously told me that an unknown person from the police department called the house. Stating "Chief Michael Chase and Sergeant Collura are looking ...