July 22, 2010
CHRISTOPHER CASAL, PLAINTIFF-APPELLANT,
BOROUGH OF DUNELLEN AND DUNELLEN POLICE DEPARTMENT, DEFENDANTS-RESPONDENTS.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued November 12, 2009
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 Officers Romano and Reedy to discuss their role in the investigation, he attempted to avoid having his phone records examined by denying that he owned a cell phone. While he did not own a cell phone, he used a cell phone registered to his wife.
Judge Hurley concluded:
With regard to the disciplinary action of termination[,] this court finds that such a decision is reasonable and appropriate under all of the circumstances of this case.
Police officers are rightfully held to a higher standard of conduct. The citizenry of this state is entitled to rely on the honesty and integrity of its police officers. Casal failed in that regard by mistreating a citizen of Dunellen, by attempting to intimidate and influence potential witnesses during an investigation and by attempting to mislead an investigator in the performance of his duties.
The present appeal followed. Casal raises the following points for our consideration:
THE DECISION OF THE COURT BELOW SHOULD BE REVERSED BECAUSE IT IS ARBITRARY AND CAPRICIOUS.
A. THE COURT BELOW DID NOT PROPERLY APPLY THE DE NOVO REVIEW STANDARD.
B. THE DECISION BELOW IS ARBITRARY AND CAPRICIOUS AND SHOULD BE OVERTURNED BECAUSE IT MERELY RUBBER[-]STAMPED THE POLICE COMMITTEE'S FINDINGS.
THE DECISION BELOW LACKS SUPPORT OF SUBSTANTIAL CREDIBLE EVIDENCE FROM THE RECORD AS A WHOLE AND MUST BE REVERSED.
EVEN IF THE DECISION BELOW IS NOT FOUND TO BE ARBITRARY AND CAPRICIOUS, THE POLICE COMMITTEE AND THE LOWER COURT STILL IMPOSED AN OVERLY HARSH PENALTY THAT DOES NOT COMPORT WITH NEW JERSEY'S POLICY OF PROGRESSIVE DISCIPLINE.
We have carefully considered the record in light of the applicable legal principles and arguments of counsel and reject all of the arguments advanced. We affirm substantially for the reasons expressed in Judge Hurley's cogent and well-reasoned February 29, 2008 written opinion. We add the following brief comments.
Under N.J.S.A. 40A:14-150, a trial judge's de novo review of the dismissal of a police officer requires that the trial judge "consider the matter anew, afresh and for a second time" and make [his] own findings of fact." In re Philips, 117 N.J. 567, 578 (1990) (internal citations omitted). While the trial judge accords deference to the original tribunal's credibility determinations, those findings are not controlling. Id. at 579-80 (citing State v. Johnson, 42 N.J. 146, 157 (1964)).
In our review of Judge Hurley's decision, we are guided by the principle that we will not disturb his findings absent proof that the findings are "arbitrary, capricious or unreasonable or [un]supported by substantial credible evidence in the record as a whole." Id. at 579. In other words, we are bound by a trial judge's findings unless those findings are wholly unsupportable or would result in a denial of justice. Cosme v. Borough of E. Newark Twp. Comm., 304 N.J. Super. 191, 202 (App. Div. 1997), certif. denied, 156 N.J. 381 (1998).
Here, Judge Hurley, in his well-reasoned opinion, discussed the factual basis for each charge and his reasons for affirming the Borough's findings. He did not, in summary and conclusory fashion, affirm the Borough's findings. Rather, he carefully sifted and weighed the evidence and reached his own conclusions. King v. Ryan, 262 N.J. Super. 401, 412 (App. Div.), certif. denied sub nom., King v. Borough of S. Bound Brook, 134 N.J. 474 (1993).
Likewise, we are in complete agreement with Judge Hurley's determination that plaintiff's dismissal from the police force "is reasonable and appropriate under all of the circumstances of this case." Apart from the fact that the disciplinary charges for which plaintiff was adjudged guilty were serious, they did not represent the first disciplinary infractions committed by plaintiff during the course of his career as a Borough police officer. In May 2001, plaintiff was reprimanded for "failing to properly preserve and identify evidence collected... in relation to a narcotics investigation." Three months later, plaintiff was reprimanded for failing "to follow the chain of command, and insubordination." Additionally, one month later, plaintiff agreed to serve a ten-day suspension for again failing to follow the chain of command. These prior incidents demonstrate plaintiff's propensity for disobedience. Further, plaintiff's conduct in connection with the underlying incident reflected poor judgment from one who "'represents law and order to the citizenry and must present an image of personal integrity and dependability in order to have the respect of the public.'" In re Carter, 191 N.J. 474, 486 (2007) (quoting Twp. of Moorestown v. Armstrong, 89 N.J. Super. 560, 566 (App. Div. 1965), certif. denied, 47 N.J. 80 (1966)).
Our Supreme Court has previously cautioned that in matters of police discipline, we must be careful not to substitute our judgment for the judgment exercised by those charged with making disciplinary decisions. Ibid. See also In re License Issued to Zahl, 186 N.J. 341, 353-54 (2006). We are satisfied from this record that plaintiff's dismissal was not "so disproportionate to the offense" that it is "shocking to one's sense of fairness." In re Polk, 90 N.J. 550, 578 (1982); see also In re Herrmann, 192 N.J. 19, 28-29 (2007).