On appeal from a Final Administrative Action of the New Jersey Civil Service Commission.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges J. N. Harris and Newman.
Appellant John Lenhardt, a fire captain employed by the Hamilton Township Fire District #2, seeks our review of a final administrative action of the Civil Service Commission (Commission) imposing a forty-five day suspension. We affirm.
On May 1, 2007, Captain Lenhardt was aboard a fire truck returning from a call with fellow firefighters John Burton, Ray Krajesovics and volunteer firefighter Jarred Pierson. During that time, Captain Lenhardt told Pierson that he (Pierson) was volunteering himself out of a paid firefighter job by responding to calls at night. Captain Lenhardt essentially stated that if Pierson wanted to keep his call response percentage up, he ought to respond to day calls instead.
Concerned about the implications of these comments, Pierson ultimately mentioned them to a fire commissioner. As a result, on June 9, 2007, Captain Lenhardt called Pierson into his office and shouted words, essentially accusing Pierson of being a crybaby. Captain Lenhardt then angrily called firefighter Pierson a "pussy" and avowed that he would not give Pierson any sort of leniency like he had in the past.
The May 2007 statements by Captain Lenhardt were interpreted as discouraging volunteer firefighters' responses to nighttime fire calls in order to push the fire district to employ additional paid firefighters to respond to those same nighttime calls. It arguably constituted conduct unbecoming of a public employee in violation of N.J.A.C. 4A:2-2.3(a)(6). Captain Lenhardt's alleged June 2007 berating of Pierson for relaying what had happened on the fire truck; calling him an unflattering, derogatory name; and making veiled threats of retaliation against Pierson for expressing what happened, set the stage for another instance of conduct unbecoming a public employee in violation of N.J.A.C. 4A:2-2.3(a)(6), and other sufficient cause for discipline in violation of N.J.A.C. 4A:2-2.3(a)(11).
Because of increased difficulties of maintaining an entirely volunteer-staffed fire service by the Mercerville Fire Company, Hamilton Township hired several full-time firefighters and apparatus operators through its Fire District #2. At the time of the proceedings in the Office of Administrative Law (OAL), Fire District #2 had a fully-staffed fire truck twelve hours per day; the other twelve-hour shift was staffed by one volunteer firefighter. Four firefighters were required to fully staff an individual vehicle. The apparatus operator handled the fire truck while a paid fire captain oversaw the operations of the crew. The fire captain was responsible for the supervision of subordinates, along with implementing the policies of the board of fire commissioners. The fire chief is the individual in charge of overall operations.
Chief Jon B. Holcombe first became aware of an incident involving Captain Lenhardt and Pierson through an email communication from Fire Commissioner Norm Molis. Chief Holcombe commenced an investigation and contacted Pierson, who had been a junior firefighter since 2000 and was twenty years old at the time of the incidents at issue. Pierson was viewed as an active volunteer firefighter and had taken the Civil Service test for a paid position in May 2007. Pierson was interviewed by Chief Holcombe, and also provided a written statement. Pierson sensed that he used to be a close personal friend of Captain Lenhardt, but since the incidents, he no longer considered himself to be such a good friend. Because of the confrontations, he no longer felt welcome and rarely showed up for fire calls. He also indicated that he never went directly to Fire Commissioner Molis to complain, but told other firefighters about his concerns, which eventually got back to the commissioner. Pierson did not ask that Captain Lenhardt be disciplined for the two incidents.
Firefighter Burton testified that he was present when the comments were made by Captain Lenhardt to Pierson about the firefighter volunteering himself out of a job. He testified that he thought Captain Lenhardt was joking, as was his custom. Burton heard the other firefighters laughing, but he neither saw nor heard any reaction from Pierson. He indicated that Captain Lenhardt regularly joked with other firefighter, and that all of the comrades called each other numerous nicknames that were not meant to be demeaning or derogatory.
Raymond Krajesovics testified that he was employed by the fire district as an apparatus operator. He was working on May 1, 2007, and recalled the conversation on the fire truck when Pierson was talking about the fire district not hiring from the ranks of volunteer firefighters unless they increased their call response percentages. He remembered Captain Lenhardt saying that Pierson was going to volunteer himself out of a job, after which there was laughing. Krajesovics did not construe this comment to be serious and treated it as an inconsequential joke.
Captain Lenhardt testified on his own behalf. With twenty-two years of experience as a firefighter, he became captain of A Platoon several years ago. He had known Pierson for quite a while, and until May 2007, the two individuals had a very close relationship. Pierson would come to his house and they socialized and attended sporting events together outside of the firehouse. Their on-the-job relationship was ...