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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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