On appeal from Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-1870-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Chambers and Kestin.
Burlington County Sheriff's Officer Joseph Poplawski appeals from the order of June 11, 2009, affirming the one day suspension imposed on him in a disciplinary matter. We affirm.
On April 11, 2008, Poplawski, a sheriff's officer assigned to the Burlington County Courthouse, left work without notifying his supervising officer. As a result, he was charged with incompetency, inefficiency or failure to perform duties, N.J.A.C. 4A:2-2.3(a)(1); neglect of duty, N.J.A.C. 4A:2-2.3(a)(7); and other sufficient cause, N.J.A.C. 4A:2-2.3(a)(11). A minor disciplinary hearing was held before the undersheriff. Poplawski's supervisor, Sergeant Rauch, two co-workers, and Polpawski testified. The basic facts are not in dispute. On April 11, 2008, Officer Poplawski awoke not feeling well. He went to work anyway because he was the only officer scheduled to be on duty at 6:30 a.m. When his co-worker Officer Scott arrived at 7:30 a.m., Poplawski told Scott he was not feeling well and was going home. He did not speak to the Sergeant about leaving work due to illness. Rather, he asked Scott to wait five minutes*fn1 and then to let the Sergeant know he had gone home sick.
The hearing officer found that Poplawski's conduct was contrary to Standard Operating Procedure #05196, which provided that:
When the Officer leaves the post in an emergency situation, it is their (sic) responsibility to notify the supervisor by the quickest means in order to insure: 1.
The post remains attended by an Officer; 2.
The Officer is provided with any necessary assistance required for the situation that has arisen.
In a written decision dated June 5, 2008, the hearing officer concluded that Poplawski had violated N.J.A.C. 4A:2-2.3(a)(1) and (7). Although the Sergeant had requested that a two day suspension be imposed, the hearing officer sanctioned Poplawski with a one day suspension in consideration of the fact that "Poplawski was indeed ill and yet came into work that day in an effort to assist the department."
Poplawski filed a complaint in lieu of prerogative writs in the Law Division, appealing the suspension. The Law Division judge remanded the case to the hearing officer for a new hearing in order that the hearing could be recorded. The witnesses testified again. The hearing officer issued a second written opinion dated November 26, 2008, stating that no new information had been presented and that his prior decision remained unchanged. He noted that "Officer Poplawski admitted leaving his post and telling Officer Scott to wait before notifying the supervisor, Sergeant Rauch."
The action in lieu of prerogative writs then came before the Law Division judge on May 26, 2009. At that time, counsel for Poplawski requested permission to supplement the record of the hearing below by offering additional testimony from Poplawski. Despite the objection of defense counsel, the judge allowed Poplawski to provide further testimony in court and under oath. In his decision rendered from the bench, the judge acknowledged that Poplawski had come in sick for the benefit of the courthouse and that his sickness affected his judgment. Nonetheless, the judge concluded that Poplawski had violated a clear and important policy and affirmed the hearing officer's decision.
On appeal, Poplawski contends that the judge should not have based his decision on the record before the hearing officer. Rather, he maintains that he was entitled to a new hearing in the Law Division at which time the judge should have heard testimony from the witnesses. This issue was ...