February 22, 2011
IN THE MATTER OF JEFFREY BORDLEY, CITY OF BRIDGETON, DEPARTMENT OF PUBLIC SAFETY.
On appeal from the New Jersey Civil Service Commission, No. 2009-2576.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued February 3, 2011 - Decided
Before Judges R. B. Coleman and J. N. Harris.
Bridgeton Police Officer Jeffrey Bordley appeals from a final decision of the Civil Service Commission that imposed a disciplinary sanction against him for $6,748.20 (equal to thirty days pay) for insubordination in violation of N.J.A.C. 4A:2- 2.3(a)(2) and Bridgeton Police Division*fn1 Rules and Regulations IV(A)(6)(a). We affirm.
On May 26, 2008, Bordley had been employed by the BPD for approximately four years. At approximately 12:04 a.m., Bordley received instructions from dispatch directing him to respond to the scene of a reported shooting on East Avenue in Bridgeton. At the time, there were two acting sergeants on duty: Police Officer Louis Santiago and Police Officer Brian Murphy. Lieutenant David C. Mander was the watch commander on the night of the shooting; his job was to oversee all police operations at the time.
When Santiago arrived at the East Avenue scene, he instructed his squad, which included Bordley, to "establish a crime scene." At approximately 12:40 a.m., Murphy, who had responded with his own squad to a separate location one block away on York Street, instructed dispatch to send Bordley to Bridgeton Hospital (located less than one mile from the scene) after learning that a possible shooting suspect was in the emergency room being treated for stab wounds. Murphy testified that he selected Bordley for the task because he had more experience than the other available officer. As Murphy put it, "[i]f this guy was also the shooter in this case, obviously I wanted a little bit more experienced officer to sit with him if he made any comments or anything -- of that nature." Dispatch passed along Murphy's order to Bordley, who responded, "all right, I [will] be . . . leaving momentarily."
Instead of immediately complying with Murphy's order, Bordley advised Santiago that dispatch had ordered him to Bridgeton Hospital "for a stabbing victim." Murphy testified that when he shortly thereafter encountered Bordley on the scene, he informed him that the stabbing victim was a possible suspect, and explained why he needed him, not another officer, at the hospital right away. Bordley testified, however, that Murphy "never specified that he wanted me specifically to be at the hospital," just that he "needed somebody to go stand by at the hospital until detectives arrive to question [the suspect]."
Meanwhile, Santiago contacted Mander and asked that Bordley remain at the East Avenue scene. The testimony presented to the Administrative Law Judge (ALJ) was mixed as to whether this was initiated at Bordley's or Santiago's request. Santiago testified that it was Bordley's idea to send another officer in his place and that Bordley "actually requested . . . to stay on scene and to have [the other officer] go over to the hospital." However, Bordley maintained that Santiago told him to send the other officer "to go stand by at the hospital." The ALJ found as a matter of fact that Bordley initially requested to stay on the scene. Mander, unaware of Murphy's earlier order delivered through dispatch and a face-to-face conversation with Bordley, acquiesced in Santiago's request to allow Bordley to remain at the scene.
Thereafter, Murphy overheard on the police radio that someone other than Bordley had arrived at the hospital. Confused, Murphy asked dispatch to confirm with Bordley that he was en route to the hospital, to which Bordley responded, "No." Murphy then radioed Bordley directly stating, "[y]ou are assigned there. Find yourself there." Ultimately, after speaking with Murphy, Mander radioed Bordley and ordered him to respond to the hospital, which he did.
Later that morning, around 6:00 a.m., Mander informed Bordley that he was being "ordered over" for the incoming shift because the BPD was short-handed. Mander testified that after giving this order, he overheard Bordley state, "[g]ive some guys stripes or bars and they forget where they come from," which Mander believed was an insult aimed at him. Bordley admitted to making the remark, but asserted that he was referring to Murphy, not Mander.
On June 4, 2008, Bordley was served with a Preliminary Notice of Disciplinary Action charging him with two specifications for insubordination: (1) for failure to obey the order of Murphy to respond to Bridgeton Hospital on May 26, 2008, N.J.A.C. 4A:2-2.3(a)(2)*fn2 and (2) for "belittling/ridiculing a supervisor in front of other officers" on the same date, BPD Rules and Regulations IV(A)(6)(b).*fn3 Following a local disciplinary hearing, both charges were sustained, and a Final Notice of Disciplinary Action was issued imposing a sanction of $6,748.20, equivalent to thirty days pay.
Bordley appealed the decision to the New Jersey Civil Service Commission (the Commission). The matter was transferred to the Office of Administrative Law (OAL) and scheduled for hearings before an ALJ. On November 16, 2009, the ALJ issued an Initial Decision in which he sustained the local finding of insubordination for failure to comply with Murphy's order, but dismissed the other charge, finding insufficient evidence that the remark was made in the presence of other officers and further concluding that the comment "is not the type of comment that is offensive (i.e., insubordinate) but rather more akin to [Bordley] just 'blowing off steam' out of frustration."
The ALJ found that any miscommunication on the date in question stemmed not from Bordley's superior officers but from his own conscious decision to disregard orders. In addition, the ALJ concluded that Bordley had set into motion the failures of communication when instead of heeding Murphy's order to go to Bridgeton Hospital, he requested to be excused. Additionally, Bordley's contention that Murphy stated only that he needed "someone" at the hospital was found "not credible in the face of the evidence and testimony." In general, the ALJ found Bordley's account of events "self-serving and less reliable"; Murphy's version was corroborated by recorded transmissions and was "reliable and credible."
The ALJ concluded that Bordley violated the insubordination provisions of N.J.A.C. 4A:2-2.3(a)(2) when he "failed to comply with the original order communicated to him by the dispatcher which was also verbally explained in-person by [Officer]
Murphy." The ALJ further concluded that Bordley failed to properly follow the BPD directive on conflicting orders, which states:
Upon receipt of an order conflicting with any previous order, the employee affected will advise the person issuing the second order of this fact. Responsibility for countermanding the original order rests with the individual issuing the second order. If so directed, the latter order shall be obeyed first. Orders will be countermanded, or conflicting orders will be issued, only when reasonably necessary for the good of the Division. [BPD Rules and Regulations IV(B)(2)(d).]
Weighing Bordley's prior disciplinary record -- including one prior sustained charge of insubordination -- against the seriousness of the offense of "[f]ailing to follow an important order shortly after a shooting incident," the ALJ affirmed the sanction of loss of thirty days pay. Appellant appealed the Initial Decision to the Commission, which adopted the ALJ's findings of fact and conclusion, thereby affirming the action imposing the sanction. This appeal followed.
Firmly established principles govern our task on appeal. Appellate review of an administrative agency decision is limited. Circus Liquors, Inc. v. Governing Body of Middletown Twp., 199 N.J. 1, 9 (2009); I.L. v. N.J. Dep't. of Human Servs., Div. of Med. Assistance & Health Servs., 389 N.J. Super. 354, 364 (App. Div. 2006). Absent a "clear showing" that the decision was "arbitrary, capricious, or unreasonable, or that it lacks fair support in the record," a reviewing court will not upset it, even if it would have reached a different result. Circus Liquors, Inc., supra, 199 N.J. at 9; In re Herrmann, 192 N.J. 19, 27-28 (2007). Nevertheless, we are obliged to conduct a thorough review of the record and may not merely "rubber-stamp" the agency action. Klusaritz v. Cape May Cnty., 387 N.J. Super. 305, 315 (App. Div. 2006) (quoting Gerba v. Bd. of Trs. of Public Employees' Ret. Sys., 83 N.J. 174, 190 (1980) (Pashman, J., dissenting)), certif. denied, 191 N.J. 318 (2007); Riverside Gen. Hosp. v. N.J. Hosp. Rate Setting Comm'n, 98 N.J. 458, 468 (1985).
Our scope of review is guided by three major inquiries:
(1) whether the agency's decision conforms with relevant law; (2) whether the decision is supported by substantial credible evidence in the record; and (3) whether in applying the law to the facts, the agency "clearly erred" in reaching a result that was either arbitrary, capricious, or unreasonable. Circus Liquors, Inc., supra, 199 N.J. at 10; In re Virtua-West Jersey Hosp. Voorhees for a Certificate of Need, 194 N.J. 413, 422 (2008). When an agency decision meets the above criteria, we accord substantial deference to the agency's fact-finding and legal conclusions. See In re Alleged Improper Practice Under Section XI, Paragraph A(d) of the Port Auth. Labor Relations Instruction, 194 N.J. 314, 332, cert. denied sub nom., Port Auth. Police Benevolent Ass'n v. Port Auth., __ U.S. __, 129 S. Ct. 754, 172 L. Ed. 2d 726 (2008). The burden is on the party opposing the action to demonstrate grounds for reversal. McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 563 (App. Div. 2002).
Bordley's first four points on appeal may be readily distilled into the single argument that the ALJ's determination (as adopted by the Commission) was against the weight of the evidence. Where a party asserts an error of fact, as here, our role is limited to determining whether the contested finding is supported by sufficient credible evidence in the record. See In re Taylor, 158 N.J. 644, 658 (1999). Also, a reviewing court "'should give due regard to the opportunity of the one who heard the witnesses to judge of their credibility.'" Id. at 659 (quoting Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 587 (1988)).
Contrary to Bordley's assertions, the ALJ fully considered the convoluted chain of communications that unfolded on May 28, 2008. Even in the cross-currents of contradictory facts and clashing inferences, there was ample support for the ALJ's conclusion that "[i]t wasn't until [Bordley] requested he be excused from going to the emergency room that the conflict came into fruition." In addition, the ALJ's credibility assessments are beyond reproach. The AJL was entitled to discount Bordley's version of events and adopt Murphy's perspective because he was able to observe both in the crucible of direct and cross-examination. We have no occasion to second-guess the facts as found by the ALJ. See Moiseyev v. N.J. Racing Comm'n, 239 N.J. Super. 1, 10-11 (App. Div.), certif. denied, 117 N.J. 666 (1989).
Bordley's last point on appeal argues against the severity of the sanction. In the context of disciplinary actions, we will not disturb the penalty imposed unless it is "'utterly disproportionate to the offense' as to amount to a clear abuse of discretion." City of Newark v. Massey, 93 N.J. Super. 317, 324-25 (App. Div. 1967) (quoting City of Newark v. Civil Serv. Comm'n, 115 N.J.L. 26, 30-31 (1935)). Appellate courts are cautioned against substituting their own views on the penalty imposed for that of the administrative body. In re Carter, 191 N.J. 474, 486 (2007). Rather, we owe substantial deference to the agency's "'choice of remedy or sanction, seeing it as a matter of broad discretion, . . . especially where considerations of public policy are implicated.'" In re Herrmann, supra, 192 N.J. at 34-35 (quoting N.J. Div. of State Police v. Jiras, 305 N.J. Super. 476, 482 (App. Div. 1997), certif. denied, 153 N.J. 52 (1998)). The question for us to answer is "'whether such punishment is so disproportionate to the offense, in the light of all the circumstances, as to be shocking to one's sense of fairness.'" In re Carter, supra, 191 N.J. at 484 (quoting In re Polk License Revocation, 90 N.J. 550, 578 (1982)).
Principles of progressive discipline have been applied where the offending party has a "substantial record of employment that is largely or totally unblemished by significant disciplinary infractions." In re Herrmann, supra, 192 N.J. at 32-33. However, progressive discipline is never immutable and can be patently inappropriate depending upon the nature of the violation. See id. at 33-36.
As noted by the ALJ, the circumstances surrounding the incident giving rise to Bordley's charge of insubordination were serious in nature and posed a threat to public safety. Moreover, although the ALJ correctly noted that Bordley had been charged with only one prior act of insubordination, his entire record was not so unblemished as to constitute a mitigating factor.
Finally, New Jersey has acknowledged the particular importance of discipline and obedience to authority in the context of law enforcement organizations. In re Carter, supra, 191 N.J. at 485-86; In re Phillips, 117 N.J. 567, 576-77 (1990); Rivell v. Civil Serv. Comm'n, 115 N.J. Super. 64, 72 (App.
Div.), certif. denied, 59 N.J. 269 (1971).
In light of the totality of the circumstances, we do not consider the sanction of a thirty day wage loss to be disproportionate to the offense or "shocking to one's sense of fairness." In re Carter, supra, 191 N.J. at 484. We discern no arbitrariness, capriciousness, or unreasonableness in either the outcome reached or in the explanation given. We are therefore required to respect the Commission's expertise and to defer to the Commission's calibrated determination and exercise of principled discretion. See Campbell v. N.J. Racing Comm'n, 169 N.J. 579, 587-88 (2001); Karins v. City of Atlantic City, 152 N.J. 532, 540 (1998).