October 11, 2011
KELLY RUROEDE, PLAINTIFF-RESPONDENT,
BOROUGH OF HASBROUCK HEIGHTS, HASBROUCK HEIGHTS POLICE DEPARTMENT, CHIEF MICHAEL COLANERI, MAYOR ROSE M. HECK, COUNCIL MEMBERS STEPHEN ALTOBELLI, SONYA BUCKMAN, ANTHONY DINANNO, JUSTIN A. DIPISA AND DAVID GONZALEZ, DEFENDANTS-APPELLANTS.
On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-993-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 13, 2011
Before Judges Reisner, Simonelli and Hayden.
While on sick leave from his position as a police lieutenant with defendant Borough of Hasbrouck Heights Police Department (HHPD), plaintiff Kelly Ruroede allegedly left his home without authorization, went to a bar in East Rutherford, assaulted George Egbert, a police captain from the Rutherford Police Department, outside the bar, and displayed a handgun he was not authorized to carry. Following an investigation, the HHPD suspended plaintiff without pay and charged him with violating numerous departmental rules and regulations, and with conduct unbecoming a police officer and public employee. Plaintiff denied the allegations and requested a hearing.
At the municipal-level administrative hearing, defendant Borough of Hasbrouck Heights (Borough) presented no eyewitness testimony to establish that plaintiff initiated the altercation and displayed a handgun. Instead, it relied on two eyewitness statements given to the police and Egbert's unsworn complaint against plaintiff. The Borough also presented no expert testimony to establish plaintiff's fitness for duty. Instead, it relied on a written report from its psychological expert to establish that plaintiff was unfit for duty.
Plaintiff was represented by counsel during three days of the hearing. Counsel filed a motion to be relieved prior to the last hearing day. Counsel did not appear that day even though the motion had not yet been decided. Plaintiff did not request an adjournment in order to retain new counsel, and agreed to proceed pro se at the final day of the hearing.
Relying on the eyewitness statements, Egbert's complaint, and the Borough's expert's report, the hearing officer found that plaintiff initiated the altercation with Egbert, carried his off-duty weapon when not authorized to do so, gave an untruthful account of the incident to HHPD and the East Rutherford Police Department, and was unfit for duty. Although plaintiff only had prior minor disciplinary infractions, the hearing officer recommended his termination based on the serious nature of the incident, plaintiff's untruthful responses during the investigation, and the expert's conclusion that he was unfit for duty. The Borough accepted the hearing officer's findings and recommendation, and terminated plaintiff.
Plaintiff filed a complaint in lieu of prerogative writs, seeking to overturn the termination, among other things. Following a hearing, the Law Division judge concluded that the hearing process was unfair and in contravention of plaintiff's due process rights because plaintiff proceeded without legal counsel on the final, pivotal day of the hearing, and was deprived of the opportunity to confront and cross-examine adverse witnesses, including Egbert and the Borough's expert. The judge entered an order on December 23, 2010, vacating the termination, ordering the Borough to pay back-pay for plaintiff's period of suspension, and placing plaintiff on inactive status pending either voluntary resolution of the matter or a new hearing. This appeal followed. We subsequently stayed the December 23, 2010 order pending resolution of this appeal.
On appeal, the Borough first contends that plaintiff's failure to obtain authorization to leave home while on sick leave warrants termination in and of itself. However, the hearing officer did not recommend termination based on plaintiff's failure to obtain authorization. He recommended termination based on the serious nature of the incident, plaintiff's untruthful account of the incident, and the Borough's expert's conclusion that he was unfit for duty. Thus, we reject the Borough's contention.
The Borough also contends that the judge erroneously applied an abuse of discretion standard of review, failed to conduct a de novo review, failed to apply the residuum rule, and lacked jurisdiction to order "additional" hearings and reverse the disciplinary conviction. We reject these contentions, as well.
A municipality charging an employee with a disciplinary infraction and seeking to impose punishment must establish the truth of the charges by a preponderance of the evidence. In re Phillips, 117 N.J. 567, 575 (1990) (citing Atkinson v. Parsekian, 37 N.J. 143, 149 (1962)). Although hearsay evidence is admissible in agency hearings, findings and conclusions based on such hearsay must be supported by a residuum of legally competent evidence in the record. N.J.A.C. 1:1-15.5(b); DeBartolomeis v. Bd. of Review, 341 N.J. Super. 80, 85 (App. Div. 2001). As the Supreme Court stated, a fact finding or a legal determination cannot be based upon hearsay alone. Hearsay may be employed to corroborate competent proof, or competent proof may be supported or given added probative force by hearsay testimony. But in the final analysis for a court to sustain an administrative decision, which affects the substantial rights of a party, there must be a residuum of legal and competent evidence in the record to support it. [Weston v. State, 60 N.J. 36, 51 (1972).]
There is no residuum of legal and competent evidence in the record supporting the hearsay contained in the eyewitness statements, Egbert's complaint, and expert report. Except for these hearsay documents, there was no evidence establishing that plaintiff initiated the altercation with Egbert, possessed a weapon at the time of the incident, or was unfit for duty.
Thus, it was error for the hearing officer to have made factual findings and conclusions based on those hearsay documents, and further error for the Borough to accept those findings and conclusions.
That being said, we address the Borough's remaining contentions. Because the Borough is a non-civil service municipality, N.J.S.A. 40A:14-150 governs judicial review of this disciplinary matter. Phillips, supra, 117 N.J. at 577; see also Cosme v. Borough of E. Newark Twp. Comm., 304 N.J. Super. 191, 194 (App. Div. 1997) (noting that discipline of police officers in non-civil service municipalities is governed by N.J.S.A. 40A:14-147 to -151) certif. denied, 156 N.J. 381 (1998). N.J.S.A. 40A:14-150 requires the Law Division judge to hear the disciplinary conviction de novo on the record below, and permits the judge to "reverse, affirm or modify any such conviction." Phillips, supra, 117 N.J. at 577. If the employee has been removed from his office, the judge "may direct that he be restored to such office, employment or position and to all his rights pertaining thereto, and may make such other order or judgment as said court shall deem proper." N.J.S.A. 40A:14-150.
"In a de novo proceeding, a reviewing court does not use an 'abuse of discretion' standard, but makes its own findings of fact." Id. at 578; see also Grasso v. Borough Council of Glassboro, 205 N.J. Super. 18, 25 (App. Div. 1985), certif. denied, 103 N.J. 453 (1986). The judge is not bound by the hearing officer's findings, and could reject them. Phillips, supra, 117 N.J. at 579-80.
The appellate court plays a limited role in reviewing a de novo proceeding. Phillips, supra, 117 N.J. at 579. We do not make new factual findings but simply decide whether the record contains adequate evidence to justify the court's findings. Ibid. (quoting State v. Johnson, 42 N.J. 146, 161 (1964)); see also Cosme, supra, 304 N.J. Super. at 202. We owe no deference, however, when issues of law are involved. Cosme, supra, 304 N.J. Super. at 203.
Following her de novo review of the record, the judge determined that due process violations deprived plaintiff of a fair hearing. The judge vacated plaintiff's termination and ordered that he be reinstated on inactive status "pending either resolution of his status voluntarily . . . or, if same cannot be reached on or before February 14, 2011, that additional disciplinary hearings continue to properly afford [plaintiff] due process to a conclusion." The judge also ordered the Borough to pay plaintiff back-pay from the time of his suspension until resolution of the matter.
Employees facing termination are entitled to due process protections. Nicoletta v. N. Jersey Dist. Water Supply Comm'n, 77 N.J. 145, 154 (1978). The Court has adopted six "minimum requirements" of due process that should be preserved at a public employee's disciplinary hearing:
"(a) written notice of the claimed violations . . . ; (b) disclosure . . . of evidence . . . ; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) neutral and detached hearing body . . . members of which need not be judicial officers or lawyers; and (f) a written statement by the factfinders as to the evidence relied on and reasons [for acting]." [Id. at 165 (quoting Morrissey v. Brewer, 408 U.S. 471, 488--89, 92 S. Ct. 2593, 2604, 33 L. Ed. 2d 484, 498--99 (1972)).]
The Court added that the accused "should generally be permitted . . . a right . . . to be advised by counsel, if he chooses . . . ." Id. at 166.
Plaintiff had no due process right to be advised by counsel on the day of the final hearing. He only had a general right to counsel, which he waived by choosing to proceed without counsel at the final hearing. However, plaintiff had a due process right to confront and cross-examine adverse witnesses. Id. at 165-66; Dolan v. City of E. Orange, 287 N.J. Super. 136, 145 (App. Div. 1996) ("Traditional notions of fairness require that [the employee] have an opportunity to confront and cross-examine [an adverse witness]."); In re Limongelli, 137 N.J. 317, 329 (1993) ("When an administrative determination may have profound consequences . . . administrative due process requires that the one affected by opposing testimonial evidence have the opportunity to cross-examine the witness."); Paco v. Am. Leather Mfg. Co., 213 N.J. Super. 90, 96 (App. Div. 1986) ("It is firmly established in our jurisprudence that parties must be afforded the right to cross-examine witnesses and to produce evidence to address the relevant issues in a contested proceeding.")
The violation of plaintiff's due process right to confront and cross-examine adverse witnesses denied him a fair hearing. Accordingly, the judge properly vacated the disciplinary conviction and ordered additional disciplinary hearings. The judge also properly ordered plaintiff's restoration to his position on inactive status, and that the Borough pay him back-pay. See N.J.S.A. 40A:14-150; Dolan, supra, 287 N.J. Super. at 145-46.*fn1