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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...