August 13, 2010
I/M/O MICHAEL SHARIN BOROUGH OF BELMAR
On appeal from a Final Decision of the New Jersey Civil Service Commission, CSC Docket No. 2005-4942.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued February 1, 2010
Before Judges Carchman and Ashrafi.
Appellant Michael Sharin appeals from a final decision of the Civil Service Commission*fn1 (the Commission) removing him as a police officer in respondent the Borough of Belmar. The Commission adopted the findings of fact of the Office of Administrative Law (OAL) and the Administrative Law Judge (ALJ) but rejected its recommendation of no penalty. Instead, the Commission found that the findings sustaining the disciplinary charges against appellant warranted removal. Specifically, the Commission and the ALJ found that appellant conducted himself in a manner that was contrary to the impartial and unbiased exercise of discretion required of him in his position as a police officer. Appellant appeals, and we affirm.
These are the facts adduced from the record in the OAL and the Commission. On the evening of August 27, 2004, while off-duty, appellant, then a police officer of the Borough of Belmar Police Department (BPD), was walking on the Belmar boardwalk with his wife when he encountered Gary DeSarno.*fn2 Appellant asked Gary for his identification, as Gary had a glass in his hand and appeared to be intoxicated. During this initial exchange, a woman later identified as Mary DeSarno*fn3, Gary's wife, appeared on the scene.
According to appellant, Gary was behaving in an obnoxious and disruptive manner, prompting appellant to place a call to Special Officer Nicholas Cartmell asking for assistance in issuing Gary summonses. Appellant issued four summonses, which Gary tore-up and threw in the air, resulting in appellant placing Gary under arrest. Following his arrest, Gary was transported to Belmar Municipal Jail, arriving shortly before 11:00 p.m.
After her husband was first arrested, Mary, who had been attending a cocktail party that was jointly-sponsored by the Republican Club of Wall Township and Belmar Borough, made several telephone calls in an attempt to have her husband released from custody. Mary contacted David Rible, another Belmar Police Officer who had co-hosted the political function attended by the DeSarnos earlier that evening, to enlist his assistance in intervening on her behalf. Rible notified Mark Walsifer, yet another police officer, who was serving as President of the PBA, Local 50 and the Belmar Police Association and, with Rible, had co-hosted the political function. Walsifer contacted appellant and requested that he release Gary; appellant refused. As a result, Gary was detained in a holding cell for over five hours until appellant eventually released him to his wife at approximately 4:00 a.m.
According to appellant, the delay in Gary's release was due to the fact that he was "still highly intoxicated and very uncooperative" and the "report had not yet been completed due to a shortage of manpower on the midnight shift." It was later ascertained that appellant's wife had recently been denied an application for a variance to construct a veterinary hospital by the Wall Township Board of Adjustment. Mary was a member of that board and had voted to deny the application.
Provoked by claims that Gary's delay in release was due to improper retaliatory action for Mary's participation in the denial of appellant's wife's application, the DeSarnos filed a complaint with the Prosecutor's Office, whose investigation prompted the Borough to conduct its own investigation into the matter. After an internal investigation, the Borough, on January 19, 2005, served appellant with a Preliminary Notice of Disciplinary Action for the following charges: Failure to Perform Duties, in violation of N.J.A.C. 4A:2-2.3a1; Conduct Unbecoming of a Public Employee, in violation of N.J.A.C. 4A:2-2.3a6; Neglect of Duty, in violation of N.J.A.C. 4A:2-2.3a7; Standard of Conduct, in violation of Belmar Police Department (BPD) Rule & Regulation 3:1.1; Custody of Prisoners, in violation of BPD Rule & Regulation 3:8.1; Impartial Attitude, in violation of BPD Rule & Regulation 3:10.2; Obedience of Laws and Regulations, in violation of BPD Rule & Regulation 3:1.11; and Issuance of Summons/Warrant, in violation of Memorandum #100. Following departmental hearings, appellant, by a May 19, 2005 decision, was removed from his position as a Belmar police officer.
Appellant appealed the decision to the OAL. At the hearing before the ALJ, Walsifer confirmed that he had received a call from Rible, who Mary had contacted after her husband was arrested. According to Walsifer, he had a telephone conversation with appellant and told him "I'm not asking for anything, I don't even want to know why he's arrested but if the paper-[work] could get done, his wife's very upset and she would like him released to her[.]" According to Walsifer, appellant responded with, "[a]bsolutely [n]ot." Walsifer continued, "So then there was a pause for a minute and then [appellant] said, '[Mary's] on the Wall Township  Board,' so I said, 'Okay,' and I hung up the phone."
According to Walsifer, at the time of the conversation, the mention of the Wall Township Planning Board held no meaning for him. When asked if appellant indicated the significance of the Wall Township Board of Adjustment, Walsifer replied with "he just said, 'He's not getting any breaks,' or it was some words like that, but he said because of the Wall Township -- '[Gary]'s on the Wall Township Board [of Adjustment].'" After his phone conversation with appellant, Walsifer called Rible back and relayed the conversation to him and asked Rible about the significance of Gary being on the Board. Rible responded that it was Mary who was actually on the Board. Rible then asked Walsifer if this had to do with appellant's wife not getting the hospital approved, to which Walsifer replied "You make your own conclusion." Walsifer indicated that he later remembered that he had, prior to August 27, learned about appellant's wife's application.
When questioned as to his knowledge of any relevant Borough policies in regard to detaining intoxicated individuals, Walsifer stated that even though BPD Rule and Regulation 3:8.1 stated that "prisoners shall be kept securely, treated firmly and humanely, and shall not be subjected to unnecessary restraint," officers had very broad discretion in determining whether the arrestee was to be released or continue as a detainee in a holding cell, and that based on his knowledge, Gary's detainment was not in retaliation for the rejected application.
Rible, who was aware of the Board application prior to August 27, related his conversation with Walsifer. "[Walsifer] said, 'I spoke to [appellant] and it doesn't look like [Gary's] going to be released because,' he said something about, 'this could be pay backs [sic] towards something from the Board of Adjustment.'" Rible reportedly told Mary how information regarding the Board had come up in the conversation between him and Walsifer.
Sergeant William Aker, also of the Belmar Police Department, was the officer on duty (or officer in charge, OIC) when Gary was first brought in on the evening of August 27. While Aker's shift was ending when he observed Gary and only had the opportunity to see him for thirty seconds, according to him, Gary did not appear intoxicated.
Regarding his knowledge of any policies pertaining to the detainment of intoxicated arrestees, Aker stated that the practice in Belmar was to release intoxicated persons as soon as possible to avoid responsibility for that person; however, if the individual was aggressive, combative, excessively intoxicated or otherwise a danger to themselves or others it was customary to have them remain in the holding cell until they "slept it off." Aker went on to note that even if an individual is "too intoxicated to leave" but a sober person is willing to accept responsibility for the intoxicated individual, they are released. According to Aker, if an intoxicated person was so out of control that they would have to be restrained in a cell, the individual would be sent to the hospital.
The ALJ also heard from Captain Thomas Palmisano who had conducted an internal affairs investigation when appellant's alleged departmental violations came to the attention of the Borough. Palmisano summarized his findings from the various police records, officer statements and the jail report from August 27, and concluded that Gary was calm and should have been released upon the completion of his paperwork, which had not been completed in a timely manner. Palmisano's testimony confirmed the statements made by previous witnesses that revealed that the Borough's policy was to release a detainee if he is calm; but if the detainee "can't stand up and [is] falling all over," he would remain in custody. However, according to Palmisano, even if someone is intoxicated but someone sober is willing to take the responsibility for them, the policy is to release them. Palmisano opined that in this case, major discipline was warranted because Gary was detained longer than necessary. However, as he had no information regarding whether appellant had an improper motive for holding Gary, Palmisano did not offer an opinion as to whether Gary's detention was a result of retaliation.
Chief Jack Hill also outlined the Borough policy, stating that detainees were to be released as soon as possible, unless there was a valid reason to do otherwise. Similar to the responses provided by other officers, Hill stated if there is a sober, responsible person to release an intoxicated person to, that person is normally released despite extreme intoxication. Hill concluded that it should have taken appellant only about fifteen minutes to complete the complaint form, but the complaint status history indicated appellant completed the complaint for Gary at 3:42 a.m., nearly five hours after Gary arrived at the municipal jail. As various records indicated that no major event took place that evening, and he received only two calls for service, appellant had no justifiable reason for the delay in paperwork. Hill concluded that while appellant acted appropriately up until and including the time Gary was originally placed in the holding cell as Gary was clearly intoxicated at the boardwalk, he should have been released to his wife after he had calmed down and there was no indication of combativeness or hostility after his initial placement in confinement. Hill opined that appellant abused his authority in not releasing Gary for what Hill believed were for retaliatory reasons. Quoting relevant BPD rules and regulations, Hill stated that he believed Gary was not treated humanely.
Other officers testified as to their knowledge of Borough policies, if any, relevant to the detaining and releasing of intoxicated individuals. Special Officer Cartmell who had assisted appellant in Gary's arrest stated that while he was not aware of the particulars of a policy regarding when intoxicated prisoners should be released, it was his understanding that they were required to be released as soon as possible after their paperwork was completed. Cartmell did confirm that Gary was aggressive, combative and intoxicated when he was arrested on the boardwalk and uncooperative during the booking process, which was before 11:30 p.m. However, Cartmell knew nothing of and did not relay any information indicating that Gary remained in such a state after 11:30 p.m.
Additionally, James Van Etten, who worked as a Belmar police officer from 1984 to 2002, stated that he was not aware of a written policy in Belmar concerning when prisoners should be released. He did recall, however, that the unwritten procedure was that the arresting officer, along with the OIC, would make a joint decision about when to release the detainee and that it was normal to hold someone until sometime between 5:00 and 7:00 a.m., and if a person was uncooperative, he would be held overnight. This discretion would last until the arresting "officer has the opportunity to... fill out the necessary reports, and until that person has maintained control of themselves so they are not putting themselves in jeopardy and or public safety in jeopardy."
Richard Lynch, former officer with the Borough from 1967 to 2003, the last nine years as Chief of Police, proffered information regarding a complaint that Karen Ketchum, another police officer, filed against appellant regarding appellant's criticisms of her report writing and his rude behavior towards her. Ketchum and appellant purportedly worked out their disagreements, no disciplinary action was taken against appellant, and there is no record of any further complaints Ketchum made against appellant. Lynch testified to appellant's "great work" as a police officer and the letters of commendation he wrote on his behalf, vouching for appellant's credibility.
Both Gary and Mary were called as witnesses and urged that appellant had detained Gary much longer than was necessary and proper under the circumstances. A recorded tape of a conversation Mary had with appellant on the evening of August 27 was presented. On the tape, Mary stated she had heard that Gary was being detained because appellant was "holding a grudge against [Gary] because [appellant's] wife was not given  some kind of variance[,]" to which appellant stated "Absolutely not, ma'am."
When appellant testified on his own behalf, he stated he did not recognize Gary when he first encountered him on the boardwalk, nor did he recognize the surname DeSarno as having any connection with the Wall Township Board of Adjustment and only realized the significance later. Appellant also denied making any statement to Walsifer suggesting he was detaining Gary because of Mary's involvement with the Board, stating that he merely told Walsifer that Gary "was giving [Cartmell] a hard time in the booking room, and I didn't really think he was a good candidate for early release." Appellant confirmed that he received a call from Mary and that "[s]he then told [him] that someone had told her that [he] had said that [Gary] was being held because of a decision that she made on a board of adjustment in Wall Township." Appellant denied it and stated he tried to explain the Borough policy to her. It was during this conversation that appellant realized Mary's connection with his wife.
Appellant further stated that he complied with the unwritten policy to hold drunk and disorderly persons overnight.
He proffered a list of all intoxicated persons arrested for disorderly conduct during the summer of 2004, most of whom were released between 6:00 and 7:00 a.m. The data revealed that the average time in custody was six hours and forty-seven minutes, which was more than the five hours and forty-three minutes that Gary was held.
Appellant also stated that Walsifer already knew about the board application and further, that appellant was not angry with the board's denial of his wife's application. According to appellant, Walsifer had motive to lie as there had "been other occasions where he's made false allegations against [him]. He actually suffered some discipline from a case that [he] was involved in."
In his findings, the ALJ concluded that the policy concerning the release of drunk and disorderly arrestees was inconsistent and that the customary practice in 2004 was that drunk and disorderly detainees would be kept in a holding cell at the discretion of the arresting officer, concluding that "there was so set or definitive practice which was uniformly applied concerning the release of drunk and disorderly arrestees in Belmar." However, the ALJ went on to say that appellant could have completed Gary's paperwork earlier than he did and intentionally delayed processing him because he could and "this decision was motivated by his desire to frustrate and/or aggravate [Mary] for her negative vote on his wife's variance application in Wall Township." Finding that "the ultimate decision to be made in this matter is whether or not [appellant] violated a rule, regulation or policy of the Borough in holding [Gary]" and as there was no clear policy in place, the arresting officer had wide latitude in determining when a calm and non-threatening individual could be released. As such, the ALJ ordered that appellant be reinstated as a police officer.
After review of the ALJ's initial decision and the exceptions, the Commission issued an October 10, 2008 final decision and order, wherein it accepted and adopted the ALJ's findings of fact. However, finding that appellant's retaliatory action warranted termination of his employment, the Commission did not adopt the ALJ's recommendation to reverse the sanction of removal and instead ordered that it be upheld. Specifically, the Commission found that "[t]he fact that the appellant had some discretion in determining [Gary's] length of detention does not give him absolute license to detain him for improper and retaliatory reasons."
Th[at] discretion given to Officers was meant to include consideration of factors such as the detainees' combative conduct while in custody and the availability of a responsible adult to whom a detainee can be released. That discretion was not meant to permit an Officer to unreasonably detain an arrestee based on personal bias or retaliatory motivations. If such factors drive an Officer to detain an arrestee for a significant length of time, that Officer has clearly abused the discretion he has been afforded, and such abuse cannot be tolerated.
The Commission further stated that "it is evident that the appellant allowed his personal distaste for the DeSarnos to cloud his judgment when given the opportunity. He abused his power, authority, and discretion when he intentionally delayed [Gary]'s release, and such behavior undermines the integrity of the law enforcement system."
Having found that appellant abused his discretion, the Commission found termination appropriate. Citing West New York v. Bock, 38 N.J. 500 (1962), the Commission stated that when determining proper penalty, it could consider the concept of progressive discipline. As appellant's disciplinary record reflected a previous 120 working day suspension, and "the offending conduct is extremely serious," the Commission "conclude[d] that the removal was neither unduly harsh nor disproportionate to the offense and should be upheld."
On appeal, appellant asserts that the Commission's decision was unwarranted. Although not explicitly stated as such, he challenges the quality of the proofs, suggests that no departmental policy was violated and that his actions were not retaliatory. He also challenges the imposition of the sanction of removal as violative of the principle of progressive discipline.
Our analysis requires a recognition of the standard of review that informs our consideration of an appeal from the final decision of the Commission. We will not overturn such a decision unless it is arbitrary, capricious or unreasonable, or it lacks fair support in the record. In re Carter, 191 N.J. 474, 482 (2007). As such, we are required to affirm a decision of the Commission as long as it is supported by the evidence, even if we may question the wisdom of the decision or would have reached a different result. Campbell v. N.J. Racing Comm'n, 169 N.J. 579, 587 (2001).
Furthermore, a strong presumption of reasonableness attaches to a decision of the Commission. In re Carroll, 339 N.J. Super. 429, 437 (App. Div.), certif. denied, 170 N.J. 85 (2001). With respect to factual findings, the findings of an ALJ "are considered binding on appeal, when supported by adequate, substantial and credible evidence." In the Matter of Eva Taylor, 158 N.J. 644, 656 (1999).
We also give due respect to the Commission's expertise on matters falling within its province. Gloucester County Welfare Bd. v. State Civil Serv. Comm'n., 93 N.J. 384, 396 (1983). The choice of accepting or rejecting testimony of witnesses rests with the administrative agency, and where such choice is reasonably made, it is conclusive on appeal. Application of Howard Sav. Bank, 143 N.J. Super. 1, 9 (App. Div. 1976).
If we find that the evidence and the inferences to be drawn therefrom support the Commission's findings, we are required to affirm. Campbell, supra, 169 N.J. at 587 (citing Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 588 (1988)). This deferential standard also applies when reviewing disciplinary actions. In re Herrmann, 192 N.J. 19, 28 (2007).
We conclude that the ALJ's findings of fact, as adopted by the Commission, were based on substantial credible evidence, and as such, the Commission's determination that appellant acted improperly in his role as a police officer was not arbitrary or capricious.
Appellant challenges the bona fides of critical testimony. We agree with appellant that statements made by witnesses were challenged as to their truthfulness. For example, Walsifer indicated that appellant revealed to him that he would not release Gary because of Mary's connection with appellant's wife. Appellant, however, argued that Walsifer was lying, "was out to get him" and was conspiring against him. The ALJ and Commission made findings that Gary was not so out of control, threatening or abusive that confinement was required. In adopting these findings and thereby determining that appellant acted improperly in his capacity as a police officer, the Commission was not so "wide of the mark" that it would prompt this court to reverse. Taylor, supra, 158 N.J. at 656 ("whether the findings made could reasonably have been reached on sufficient credible evidence present in the record considering the proofs as a whole with due regard to the opportunity of the one who heard the witnesses to judge their credibility") (internal quotation marks omitted). To the contrary, the ALJ was charged with the responsibility to make these assessments and determine the factual disputes between the parties.
We, likewise, cannot fault the Commission for rejecting the ALJ's recommendation to reinstate appellant as the Commission determined that termination was proper. The critical finding was that appellant abused his authority not simply by detaining Gary but for detaining Gary as retaliatory for matters that were unrelated to appellant's role as a police officer. The Commission was not confronted with a simple delayed retention but a delayed retention prompted by an improper motivation. While the Commission did not disagree that appellant had some discretion in determining Gary's length of detention, it found that this discretion did not "give him absolute license to detain [Gary] for improper and retaliatory reasons."
As the Commission noted, quoting Moorestown v. Armstrong, 89 N.J. Super. 560, 566 (App. Div. 1965), certif. denied, 47 N.J. 80 (1966), and In re Phillips, 117 N.J. 567 (1990):
Municipal Police Officers hold highly visible and sensitive positions within the community and the standard for an applicant include good character and an image of utmost confidence and trust. It must be recognized than a municipal Police Officer is a special kind of public employee: His primary duty is to enforce and uphold the law. He carries a service revolver on his person and is constantly called upon to exercise tact, restraint and good judgment in his relationship with the public. He 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.
On review, we are limited in our ability to adjust a sanction. "A reviewing court should alter a sanction imposed by an administrative agency only when necessary to bring the agency's action into conformity with its delegated authority. The Court has no power to act independently as an administrative tribunal or to substitute its judgment for that of the agency." Herrmann, supra, 192 N.J. at 28 (internal quotation marks omitted). "[A]fter reviewing the statutory authorization and the record, if the court concludes that the sanction is not illegal or unreasonable, the sanction will be affirmed[.]"
Ibid. (quoting 37 New Jersey Practice, Administrative Law and Practice, § 328, at 334 (Steven L. Lefelt) (1d ed. 1988)). As such, when reviewing administrative sanctions, we are limited to determining "whether such punishment is so disproportionate to the offense, in light of all the circumstances, as to be shocking to one's sense of fairness." Id. at 28-29 (quoting In re Polk, 90 N.J. 550, 578 (1982)). Defining shocking is not subject to any standard or rigid rules and it is "not met whenever the court would have reached a different result." Id. at 29.
The Commission, in fashioning an appropriate penalty for an employee found guilty of misconduct, may consider past misconduct. Ibid. See also In re Phillips, supra, 117 N.J. at 581 ("Although we recognize that a tribunal may not consider an employee's past record to prove a present charge, that past record may be considered when determining the appropriate penalty for the current offense.") (internal citations omitted).
Although progressive discipline is an accepted principle, it does not have to be utilized in every disciplinary action. Progressive discipline is not a necessary consideration when the misconduct is severe, when it is unbecoming to the employee's position or renders the employee unsuitable for continuation in the position, or when application of the principle would be contrary to the public interest.
The Commission found that appellant's misconduct was unbecoming of someone in his position as a law enforcement officer. In Div. of State Police v. Jiras, 305 N.J. Super. 476, 478 (App. Div. 1997), certif. denied, 153 N.J. 52 (1998), we affirmed a State Trooper's dismissal for an unprovoked assault on a prisoner. We found that termination was proper as it went "to the heart of his capacity to function appropriately as a State [T]rooper." Id. at 481. Furthermore, we noted that we would defer to the judgment of the Superintendent who had determined removal was appropriate, because of the State Police's need to maintain order and discipline among its troopers.
In Cosme v. E. Newark Twp. Comm., 304 N.J. Super. 191, 206 (App. Div. 1997), certif. denied, 156 N.J. 381 (1998), we affirmed the dismissal of a police officer for charges for eight ordinance violations that went to the heart of the officer's ability to be trusted to function appropriately in his position. These violations alleged unauthorized absence, incompetence, willful disobedience of orders, neglect of duty, and conduct subversive of the "good order and discipline of the Police Department[.]" We acknowledged that a police officer is a "special kind of public employee" and "must present an image of personal integrity and dependability in order to have the respect of the public[.]" Id. at 206. "Acts that subvert good order and discipline in a police department 'constitute conduct so unbecoming a police officer as to warrant dismissal.'" Id. at 205-06 (citing City of Newark v. Massey, 93 N.J. Super. 317, 322-23 (App. Div. 1967)).
The Commission, upon its de novo review of the record, N.J.S.A. 52:14B-10(c), agreed with the ALJ's findings of fact and deferred to the findings of credibility of the witness, a critical issue in these proceedings. In re Return of Weapons to J.W.D., 149 N.J. 108 (1997). As such, the Commission stated it would give due deference to the ALJ's determinations regarding credibility findings. Despite the deference accorded, the Commission found that in light of the ALJ's findings, "it [did] not follow that the charges against the appellant should be dismissed and his removal reversed." Considering appellant's prior suspension and that appellant detained a citizen for an unreasonable amount of time for improper and retaliatory reasons, the Commission determined that "no penalty" was not supported by sufficient credible evidence. The Commission's review of the ALJ's findings based on extensive testimony and other evidence supports the Commission's ultimate determination that "appellant's actions do not promote an image of utmost confidence and trust." Such a conclusion is not arbitrary and capricious.