On appeal from the Civil Service Commission, CSC Docket No. 2005-4965.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 30, 2011
Before Judges Graves and Harris.
Jamie C. McCarron appeals the Final Administrative Action of the Civil Service Commission (the Commission) terminating his employment with the Middletown Police Department (the Department). We affirm.
The Commission's decision was based upon several instances of untoward conduct, including a mishandled burglary investigation, along with an unfavorable fitness-for-duty evaluation. McCarron applied for, and was granted, ordinary disability retirement based upon his medical condition. He contends on appeal that because the effective date of his retirement was four days prior to the date of his termination, the Commission's ruling should be reversed as moot. We disagree, because the Commission's grounds for termination were not solely based upon McCarron's medical or psychological unfitness to serve as a law enforcement officer. In addition, if McCarron's disability abates, he could be reinstated to the Department, which prospect obviates any mootness.
McCarron was employed as a police officer by Middletown Township from July 1997 until May 2005. In December 2004, Middletown's chief of police ordered McCarron to submit to a psychological fitness-for-duty examination. Following six hours of testing and interviewing, a psychological report was issued later that month finding McCarron "not fit for duty." After taking an authorized paid sick leave, McCarron applied for ordinary disability retirement in mid-January 2005.
On January 24, 2005, Middletown issued a preliminary notice of disciplinary action seeking to terminate McCarron's employment with the Department. The charges included incompetence, inefficiency, failure to perform duties, insubordination, inability to perform duties, neglect of duty, violation of the Department's rules and regulations, and more specifically, failure to properly investigate a burglary in early December 2004.
A final notice of disciplinary action against McCarron was issued by Middletown on May 5, 2005, terminating his employment effective that day. McCarron filed a timely appeal of his termination with the Merit System Board.*fn1
One year later, on May 9, 2006, the Department of the Treasury, Division of Pensions and Benefits (the Division), approved McCarron's application for ordinary disability retirement. The Division set the effective date of the retirement as May 1, 2005, four days before Middletown issued its final notice of disciplinary action.
Meanwhile, the disciplinary proceeding continued to be processed in the Office of Administrative Law (OAL). McCarron moved for summary decision, N.J.A.C. 1:1-12.5, on the ground of mootness, but the Administrative Law Judge (ALJ) denied the motion. After several days of testimonial hearings, the ALJ issued a twenty-three page written decision upholding Middletown's decision to terminate McCarron.
The ALJ heard testimony in support of Middletown's case from six police officers and supervisors. These witnesses indicated that McCarron: (1) was involved in multiple motor vehicle accidents with police vehicles, two of which were found to be his fault or preventable; (2) failed to maintain his breathalyzer certificate; (3) mishandled a burglary investigation; (4) was observed standing alone in the dark in front of a mirror in the police bathroom talking to himself; (5) was seen exhibiting odd behavior by staring at his vehicle for long periods of time; (6) overreacted to constructive criticism; (7) interfered with other police officers' investigations by conducting excessive follow-ups; (8) displayed paranoid and agitated behavior; and (9) was too emotionally involved in his work.
The ALJ also considered the evidence presented by two psychologists who testified for Middletown, and a psychiatrist and a psychologist who testified on behalf of McCarron. These experts differed as to whether McCarron was psychologically fit to serve as a law enforcement officer. The ALJ found all of the experts "very qualified, but not equal in ...