July 8, 2011
IN THE MATTER OF EUGENE COLLINS.
On appeal from the Civil Service Commission, Docket Nos. 2008-3260 and 2008-3660.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued January 25, 2011 - Decided
Before Judges Espinosa and Skillman.
Eugene Collins appeals from a final decision of the Civil Service Commission (the Commission) that upheld his removal from his position as a Newark police officer. For the reasons that follow, we affirm.
Collins was hired by the Newark Police Department as a police officer in February 1995. An investigation was initiated by the Department in March 2007 after Officer Samad Washington presented an administrative report to the Office of Professional Responsibility in which he stated that his life had been threatened, that Collins had knowledge of the person who made the threat and refused to submit a report about the threat.
Two Internal Affairs officers, Lieutenants Antonio Domingues and Tijuana Burton, conducted a taped interview of Collins in March 2007. His statements in the interview can be summarized as follows:
Collins stated that a few weeks earlier, a male sitting in a car in Irvington, called out to him by name and said, "I just want to holler at you[.]" Although Collins said that he did not know him, the male said, "You know me, if you was to take time and think about it." When Collins agreed to speak with him, the unknown male said, "What's up with your man Smack?", a reference to Officer Washington. The male then said that there was "a job" that took place involving $85,000 but that only $16,000 of the money was turned in. He stated, "they got to answer for that, [be]cause that's not their money. They got to take that money to drop it off to somebody else." He said further, "Listen, I know where your man be at . . . So, I already know the places where Samad hang out at, you know[.]" The male then mentioned the name of the gym used by Washington, the street where his grandmother lives, and the location of a bar he frequented. Finally, he said, So, it ain't hard, you know, for somebody -- if somebody really wanted to get at him, it ain't hard for somebody to catch him be coming out the gym. It's not hard for somebody to catch him around there, it's not hard for somebody [to] catch out here . . .
[A]ll I'm saying is . . . give this message to your man[.]
Collins recognized the "job" as one he read about in an arrest report approximately two weeks earlier. The arresting officers, who included Washington, had stopped a jeep. There were forty to sixty bottles of narcotics and one or two bags with money. Collins said that each of the two persons arrested told him, while they were being processed, that $85,000 had been in the bag but only $16,000 had been reported as confiscated. One of the arrestees complained that if only $10,000 had been taken, they would have taken a loss "to the game" of the street but that when over 50% of the money was taken, "that's straight robbery." Collins told one of the arrestees that he would look into the matter for him.
Collins spoke to Washington the day after his encounter with the arrestees in the cell block. He told the Internal Affairs officers that Washington's demeanor was of one who "really didn't care." Washington said he was tired of people associating him with "clipping people," that "[s]ometimes you got to not be worried about everything that people say on the street and just - - and just go with the flow."
Collins contacted Washington again after he was approached by the male in Irvington. Collins told the Internal Affairs officers that when they met, Washington asked him to contact the male who had made the threatening remarks, but later sent him text messages saying, "You should put it on paper, you should do the right thing." Collins admitted to the officers that he declined to do so, despite the fact that he considered the information he received to be a "serious" threat to Washington. He explained, "[W]e tried to handle it, our stuff first . . . because I don't trust this Police Department, whatsoever, I really don't."
In May 2007, the Department issued a Preliminary Notice of Disciplinary Action that charged Collins with violations of Department rules and regulations. The charges were based upon his failure to arrest, detain or take appropriate action against the unknown male who approached him and made the threat against Washington, and his failure to report the incident. A Final Notice of Disciplinary Action was later issued, removing him from his position as police officer, effective February 8, 2008.
Collins filed an appeal with the Commission and the matter was transferred to the Office of Administrative Law.*fn1
The videotaped statement Collins gave was played at the hearing conducted by the ALJ. Among the witnesses who testified, Lieutenant Antonio Domingues testified regarding his investigation of the matter. Lieutenant Domingues testified that Collins violated several department regulations by not reporting the incident involving the threat to Washington and stated his opinion that Collins should be suspended based upon his violations of the certain Newark Police Department Rules and Regulations. Collins did not testify at the hearing.
The ALJ noted it was "uncontroverted that [Collins] refused to submit a written report to his superiors pertaining to" the threat against Washington. She concluded that Collins violated Newark Police Department Rules and Regulations, Chapter 5:5.2 Compromising Arrangements, Chapter 3:1.2-9 Report of Crime, Chapter 3:1.2-10 Knowledge of Crime, Chapter 5:3-5 Bound by Duty, and Chapter 3:1.2-3 Efficiency and Cooperation, "by not advising the police department of the possible threat made against a fellow police officer and by attempting to set up a meeting with the unknown male [and that such conduct] constituted conduct unbecoming a public employee." In addition, the ALJ concluded that Collins's admitted failure to notify a superior or to file a report of the March 15, 2007 incident constituted neglect of duty.
Addressing the penalty imposed, the ALJ observed, "Where appropriate, concepts of progressive discipline involving penalties of increasing severity are used in imposing a penalty and in determining the reasonableness of a penalty." Although there was "a significant aggravating factor here in not reporting the incident to ensure the safety of a fellow officer," she noted that there were no major disciplines in Collins's record. The ALJ concluded that Collins was subject to discipline for his violations but that the discipline should be a six-month suspension rather than removal.
Both Collins and the City of Newark filed exceptions to the ALJ's Initial Decision with the Commission. Following an independent evaluation of the record, the Commission accepted and adopted the ALJ's findings of fact but upheld the removal, declining to adopt the ALJ's recommendation to modify the discipline to a six-month suspension.
The Commission stated:
Upon it[s] de novo review of the record, . . . the Commission agrees with the ALJ's assessment of the charges but does not agree with the ALJ's recommendation to modify the removal to a six-month suspension. In determining the proper penalty, the Commission's review is de novo. In addition to its consideration of the seriousness of the underlying incident, the Commission also utilizes, when appropriate, the concept of progressive discipline. See West New York v. Bock, 38 N.J. 500 (1962). However, it is well established that when the underlying conduct is of an egregious nature, the imposition of a penalty up to and including removal is appropriate, regardless of an individual's disciplinary history. See Henry v. Rahway State Prison, 81 N.J. 571 (1980). It is settled that the theory of progressive discipline is not a "fixed and immutable rule to be followed without question." Rather, it is recognized that some disciplinary infractions are so serious that removal is appropriate notwithstanding a largely unblemished prior record. See Carter v. Bordentown, 191 N.J. 474 (2007); In re Herrman, 192 N.J. 19 (2007). In the instant matter, the appellant's employment record contains no prior disciplinary history since his employment with Newark in 1995. However, in this case, the appellant's conduct in ignoring Police Department procedure in properly reporting the threat warrants the upholding of the charges and his removal. Such conduct is indicative of the appellant's exercise of poor judgment, which is not conducive to the performance of the duties of a Police Officer. As such, the appropriate penalty in this case is removal.
The Commission notes that a municipal Police Officer is a law enforcement employee who must enforce and promote adherence to the law. Municipal Police Officers hold highly visible and sensitive positions within the community and the standard for an applicant includes good character and an image of utmost confidence and trust. It must be recognized that 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 or her 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 . . . See Moorestown v. Armstrong, 89 N.J. Super. 560, 566 (App. Div. 1965), cert. denied, 47 N.J. 80 (1966). See also, In re Phillips, 117 N.J. 567 (1990).
In the instant matter, the appellant failed to report to his superiors that a threat was made against a fellow officer which may have resulted in harm to the officer and his family. This conduct is extremely egregious and cannot be tolerated. Moreover, the Commission is dismayed by the appellant's attempts in his exceptions to minimize his utterly unacceptable actions. Therefore, after a thorough and independent review of the entire record, the Commission concludes that, based on the appellant's misconduct, the penalty of removal imposed by the appointing authority is neither unduly harsh nor disproportionate to the offense, and should be upheld.
In this appeal, Collins presents the following issues for our consideration:
THE DECISION OF THE CIVIL SERVICE COMMISSION (CSC), ACCEPTING THE ALJ'S FINDINGS OF FACT AND CONCLUSIONS OF LAW IS NOT SUPPORTED BY SUFFICIENT CREDIBLE EVIDENCE IN THE RECORD AS A WHOLE AND IS THEREFORE INVALID[.]
A. THE CSC'S DECISION TO ACCEPT THE ALJ'S ERRONEOUS LEGAL CONCLUSION THAT THE COMMUNICATION BY AN UNKNOWN MALE WHO APPROACHED APPELLANT ON MARCH 15, 2007, CONSTITUTED A "THREAT" AGAINST OFFICER WASHINGTON IS ARBITRARY AND CAPRICIOUS AND IS NOT SUPPORTED BY SUBSTANTIAL CREDIBLE EVIDENCE IN THE RECORD.
B. THE CSC'S ACCEPTANCE OF THE ALJ'S FINDINGS OF FACT THAT APPELLANT UNILATERALLY ATTEMPTED TO ARRANGE A MEETING BETWEEN THE UNKNOWN MALE AND OFFICER WASHINGTON IS ARBITRARY, CAPRICIOUS AND UNSUPPORTED BY SUFFICIENT EVIDENCE IN THE RECORD AS A WHOLE.
C. THE CSC'S REJECTION OF THE ALJ'S RECOMMENDATION DECREASING THE PENALTY FROM REMOVAL TO A SIXTH-MONTH SUSPENSION AND AFFIRMING THE REMOVAL IS DISPROPORTIONATE TO THE CHARGED OFFENSE AND SHOCKING TO JUDICIAL NOTIONS OF FAIRNESS[.]
1. THE CSC'S BLANKET
ACCEPTANCE OF THE ALJ'S FINDING THAT APPELLANT'S CONDUCT CONSTITUTED A "SIGNIFICANT AGGRAVATING FACTOR" IN DETERMINING THE PENALTY IS NOT SUPPORTED BY A PREPONDERANCE OF SUFFICIENT, COMPETENT AND CREDIBLE EVIDENCE. POINT II
THE CSC'S DECISION TO REMOVE APPELLANT VIOLATES THE EXPRESS LEGISLATIVE POLICIES OF THE CIVIL SERVICE ACT.
A. THE CSC'S DECISION
VIOLATES N.J.S.A. 11A:1-2(b) AND N.J.S.A. 11A:2-24.
After carefully reviewing the record, briefs and arguments of counsel, we are satisfied that none of these arguments have merit.
The scope of our review in an appeal from a final decision of an administrative agency is limited. Circus Liquors, Inc. v. Governing Body of Middletown Twp., 199 N.J. 1, 9 (2009). In the absence of "a clear showing that it is arbitrary, capricious, or unreasonable, or that it lacks fair support in the record," the decision will be sustained. In re Herrmann, 192 N.J. 19, 27-28 (2007); see also Brady v. Bd. of Review, 152 N.J. 197, 210-11 (1997); Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). This deferential standard "is not limited to whether a violation warranting discipline has been proven; . . . [it] 'applies to the review of disciplinary sanctions as well.'" In the Matter of Stallworth, ____ N.J. _____, ______ (slip op. at 15)(quoting Herrmann, supra, 192 N.J. at 28).
Here, the Commission adopted the factual findings of the ALJ, which were amply supported by the evidence, but differed on the appropriate discipline to be imposed. In reaching this decision, the Commission did not ignore any credibility finding by the ALJ or reach any erroneous legal conclusion. Both the Commission and the ALJ recognized the seriousness of Collins's violation. The issue that separated the Commission and the ALJ was whether progressive discipline should be applied. The Commission considered the factors relevant to a determination whether progressive discipline should be applied and concluded that the nature of Collins's conduct was sufficiently egregious to warrant removal.
As our Supreme Court has recognized, "some disciplinary infractions are so serious that removal is appropriate notwithstanding a largely unblemished prior record." In re Carter, 191 N.J. 474, 484 (2007)(citing Rawlings v. Police Dep't of Jersey City, 133 N.J. 182, 197-98 (1993), which upheld the dismissal of a police officer who refused drug screening as "fairly proportionate" to offense). "[T]he question for the courts 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." Ibid. (internal quotations omitted). Further, when the discipline of police officers is involved, "public safety concerns may also bear upon the propriety of the dismissal sanction." Id. at 485.
In imposing the sanction of removal, the Commission considered Collins's special status as a police officer, and found that his conduct in failing to report a serious threat to a fellow officer was "extremely egregious and cannot be tolerated." The Commission also concluded that his conduct was "indicative of the appellant's exercise of poor judgment, which is not conducive to the performance of the duties of a Police Officer." In reviewing its actions, we defer "to an agency's expertise and superior knowledge of a particular field," Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992), and recognize that "the significance or impact of [an employee's] prior disciplinary record [is] a subject particularly within the expertise of the Commission." Stallworth, supra, _____ N.J. at _____ (slip op. at 23). Therefore, we do not ordinarily overturn such a decision "in the absence of a showing that it was arbitrary, capricious or unreasonable, or that it lacked fair support in the evidence," Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963); see also Stallworth, supra, ____ N.J. at ______ (slip op. at 14).
Here, the Commission applied its expertise in evaluating the conduct of police officers in determining the appropriate discipline for Collins. The findings of fact it adopted, based largely on Collins's own admissions, were amply supported by the evidence. The Commission's determination that Collins's conduct was egregious and indicative of poor judgment incompatible with his status as a police officer was not arbitrary, capricious or unreasonable. We are satisfied that under the circumstances presented, the punishment of removal was not "so disproportionate to the offense . . . as to be shocking to one's sense of fairness."
Collins's remaining arguments lack sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(D) and (E). Affirmed.