On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-1081-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher and Sapp-Peterson.
Plaintiff, Christopher Casal, appeals from the Law Division order affirming the Borough of Dunellen's (Borough) dismissal of plaintiff from his position as a police officer in the Borough.
We affirm substantially for the reasons expressed by Judge James P. Hurley in his February 29, 2008 written opinion.
Casal's dismissal stems from his involvement with Adam Sylvester, an individual who, in the past, had been an informant for the Borough police. Sylvester was involved in a motor vehicle incident that resulted in two motor vehicle charges, disregarding a stop sign and failure to produce a driver's license. According to Sylvester, the officer who issued the ticket, Officer Philip Romano (Romano), had indicated that he was only going to cite Sylvester for being unlicensed. When Sylvester's mother brought it to his attention that the officer had also cited him for disregarding a stop sign, Sylvester telephoned Romano. At the time, Romano was on patrol, but agreed to meet with Sylvester. Before arriving at the station, Romano spoke with dispatch, apparently to advise that Sylvester would be coming to the station. Plaintiff, who was on duty that evening as the officer in charge, overheard the conversation. Plaintiff then placed a call to Romano's cell phone. According to a handwritten transcript of this telephone conversation, which transcript Romano authenticated, plaintiff told Romano that Sylvester used to be a narcotics informant for the police and had "motherfucked" the department when he "backed out on" a scheduled "buy from a [local gang member]." Plaintiff instructed Romano not to help Sylvester unless he was willing to help the police in return.
When Romano returned to the station and met with Sylvester, he acknowledged that he mistakenly issued the citation for disregarding the stop sign, but told Sylvester that he would not do anything about the matter unless Sylvester worked for the police. Sylvester became upset, believing that Romano had reneged on his word.
Plaintiff claims that Sylvester became so verbally disruptive during the conversation with Romano that, as the officer in charge, he felt obliged to intervene. Plaintiff told Sylvester, "You need to leave.... Get out of headquarters[,]" to which Sylvester replied, "Fuck you, I'm not talking to you. I'm talking to Officer Romano. I'm not leaving." Upset with this response, plaintiff "cuffed... underneath [Sylvester's] left arm, and... went to yank him up to escort him out of headquarters[,]" but "[Sylvester] pulled his arm away from [plaintiff] and... said, 'I can get out myself.'" Sylvester then left the station on his own.
On the other hand, Sylvester claimed that plaintiff stormed into the room where he and Romano were talking, "yelling and screaming" that he had "screwed" the department in the past and had "no right to be down [there] yelling at his officers[,] telling them what to do." Sylvester also alleged that plaintiff "grabbed the back of [his] shirt and pulled [him] up out of the chair, and [he] ended up falling over the chair." Plaintiff then "usher[ed] [him] outside[,] walking behind [him], kind of gruff, throwing his hands around[.]"
The Middlesex County Prosecutor's Office opened an investigation into the matter, after which the Borough's Chief of Police, Robert Moore, preferred disciplinary charges against plaintiff, alleging five "specifications" of misconduct: one count of assaulting a civilian; two counts of attempting to influence an official investigation; and two counts of lying during an official investigation. Following a Loudermill*fn1 hearing on August 5, 2004, the Borough's Police Committee (Committee) recommended that plaintiff be suspended pending resolution of the charges, and at its next regular session, the Borough Council adopted the Committee's recommendation. Beginning September 20, 2005, the Committee held seven hearings, during which it heard testimony, taped conversations, and argument from counsel regarding the allegations against plaintiff. On December 30, 2006, approximately three months after the final hearing, the Committee issued a written decision finding plaintiff guilty of four of the five specifications. The Committee recommended that the Borough Council terminate plaintiff from his employment as a police officer. On January 8, 2007, the Mayor and Borough Council discharged plaintiff from the force.
Plaintiff filed a complaint in lieu of prerogative writs against the Borough in the Superior Court on January 24, 2007, seeking judicial review of his dismissal pursuant to N.J.S.A. 40A:14-150, which affords "a de novo [review] on the record" to the dismissed officer. Judge Hurley affirmed the dismissal.
In reaching his decision, Judge Hurley, deferring to the credibility determinations reached at the departmental hearing, found the testimony of Officer Romano and Sylvester established that plaintiff assaulted Sylvester, noting that plaintiff's hatred of Sylvester was obvious, as well as the fact that plaintiff had more to lose by lying. Judge Hurley also concluded that irrespective of plaintiff's motives, he improperly attempted to interfere with the investigation by contacting Romano and another witness, Officer Reedy, the dispatcher on duty the night of the incident with Sylvester, in an apparent effort to discuss the investigation. Finally, Judge Hurley was satisfied, by the preponderance of credible evidence in the record, plaintiff attempted to mislead an investigator during the investigation by denying that he owned a cell phone. Knowing that the allegations against him included the contention that he telephoned ...