May 12, 2011
IN THE MATTER OF CIRO MANGIONE, CITY OF NEWARK.
On appeal from the Civil Service Commission, CSC Docket No. 2009-3315.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 4, 2011
Before Judges Fisher and Fasciale.
Lieutenant Ciro Mangione, a member of the Newark Police Department since 1968, appeals a six-day suspension imposed because he improperly took his department-issued firearm beyond the State's boundaries on non-official business; the weapon was lost as a result of his carelessness but later retrieved. The appeal is not centered on the violation itself; there appears to be no dispute that Mangione violated regulations by taking his weapon out of state.
Instead, Mangione disputes the authority of the Deputy Police Director to issue the preliminary notice of disciplinary action. Although an administrative law judge (ALJ) summarily determined that the notice was unauthorized and the charges invalid, the Civil Service Commission concluded otherwise and found the City was authorized and justified in imposing the suspension.*fn1
Mangione filed this appeal, arguing:
I. THE CITY OF NEWARK VIOLATED N.J.S.A. 40A:14-118 AND THEREFORE THE CHARGES SHOULD BE DISMISSED.
II. THE CHARGES VIOLATE THE 45 DAY RULE, PURSUANT TO N.J.S.A. 40A:14-147.
III. THE FINAL DECISION OF THE CIVIL SERVICE COMMISSION WAS ARBITRARY AND CAPRICIOUS.
We find insufficient merit in these arguments to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We add only the following brief comments.
In support of his argument that the charges were unauthorized because the Deputy Police Director issued the preliminary notice of disciplinary action (PNID), Mangione relies on a consent order, which was entered in a suit commenced by the Superior Officers' Association-Newark Police Department against the City of Newark and the Office of the Police Director. The consent order, entered on October 7, 2008, stipulated that the Police Chief would issue PNIDs. The position of Police Chief, however, was later abolished and as a result, the consent order was vacated on March 24, 2010.
By way of a summary proceeding, the ALJ recognized that the PNID issued two weeks after entry of the consent order and that it was not later ratified by the Police Chief before the position was abolished. As a result, the ALJ concluded the disciplinary action was unauthorized. The Civil Service Commission rejected the ALJ's conclusion because it found no requirement in civil service law requiring a police chief to sign disciplinary notices. The Commission also determined that "any deficiencies were cured by the Police Director's issuance" of the final notice of disciplinary action on March 9, 2009, a few months after the position of Police Chief was abolished and, therefore, at a time when the Police Director had authority over police matters. The issuance of the final notice, in the Commission's view, ratified the charges. Moreover, as the Commission correctly recognized, Mangione was not deprived of any process that was due, and the facts regarding his regulatory violation were clear and undisputed. As a result, the Commission found the disciplinary proceedings were authorized and the result was fair and just. The Commission also rejected the contention that the discipline imposed was insufficient despite Mangione's failure to exercise good judgment in light of his forty years of service as a law enforcement officer in Newark.
In deferring to the Commission's expertise, and mindful of our standard of review, which counsels against intervening unless an agency decision is arbitrary, capricious or unreasonable, or not supported by substantial evidence in the record as a whole, Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 587 (1988), we affirm the final agency decision in question.