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In re Curry


March 23, 2010


On appeal from a Final Administrative Decision of the New Jersey Merit System Board, Docket No. 2006-3872.

Per curiam.


Submitted March 2, 2010

Before Judges Carchman and Lihotz.

Appellant Keith Curry, a police officer with the Vernon Township Police Department (the Department), appeals from a final decision of the Merit System Board (the Board) rejecting the Administrative Law Judge's (ALJ) initial decision reducing appellant's suspension to fifteen days and imposing a thirty-day suspension for conduct unbecoming a public employee. We affirm.

The material facts are not in dispute and are presented in the Board's decision.

[O]n March 31, 2005, a murder-suicide occurred in Vernon Township. Detective Sean Talt participated in the crime scene investigation and took a photograph of the suicide victim on his cellular telephone.

Although not involved in the investigation, the appellant asked Talt if he could view the photograph, as he had never been involved in such an investigation. Talt forwarded the photograph to the appellant via cellular telephone and advised him not to share the photograph with anyone else, describing it as "for police eyes only."

Despite these instructions, the appellant forwarded the photograph to a civilian female friend and told her to view it and delete it. However, before being deleted, this individual's brother viewed the photograph, forwarded it to his own cellular telephone, and shared it with several other members of the public.

Appellant was charged with conduct unbecoming a public employee and violation of departmental rules and regulations. As to the latter, the ALJ concluded that the Department had not demonstrated a violation of a rule or regulation, but the ALJ concluded that "appellant's conduct constituted conduct unbecoming a public employee, as it clearly signaled poor judgment."

On appeal, appellant does not challenge the finding but argues that the thirty-day suspension was excessive. We disagree.

We first address our standard of review. Our review of agency determinations is limited. In re Taylor, 158 N.J. 644, 656 (1999); Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). We must give deference to such decision, unless it is arbitrary, capricious or unsupported by substantial credible evidence in the record as a whole. Carter v. Twp. of Bordentown (In re Carter), 191 N.J. 474, 482 (2007); In re Distribution of Liquid Assets Upon Dissolution of the Union County Reg'l High Sch. Dist. No. 1, 168 N.J. 1, 10-11 (2001).

It is not our function "'to substitute [our] independent judgment for that of [an] administrative' agency," such as the Board, "'where there may exist a difference of opinion concerning the evidential persuasiveness of the relevant [proofs].'" In re Certificate of Need Granted to the Harborage, 300 N.J. Super. 363, 379 (App. Div. 1997) (quoting First Sav. & Loan Ass'n v. Howell, 87 N.J. Super. 318, 321-22 (App. Div. 1965), certif. denied, 49 N.J. 368 (1967)). Further, we should not "'weigh the evidence, determine the credibility of witnesses, draw inferences and conclusions from the evidence, or resolve conflicts therein.'" Ibid. (quoting DeVitis v. N.J. Racing Comm'n, 202 N.J. Super. 484, 489-90 (App. Div.), certif. denied, 102 N.J. 337 (1985)).

We find no abuse of discretion here. The facts indicate that despite being instructed not to transmit the photo, appellant did so, and the result was predictable. Police investigatory materials were then transmitted to members of the public.

We need not expand on the obvious impact of such dissemination. The police investigation and rights of the family may have been compromised by this unlawful distribution.*fn1

We reject appellant's argument that his suspension was too harsh given Talt's one day suspension. There is a significant difference between sharing evidence with a fellow police officer, ostensibly on the premise of educating the officer, and exposing the same evidence to the public for no good or valid reason.

In sum, we have carefully reviewed the record in this matter and considered the arguments of counsel. We are satisfied that the Board's decision was not arbitrary or capricious, the suspension imposed was justified, and we affirm substantially for the reasons set forth in the Board's written decision of April 25, 2008.


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