On appeal from the New Jersey Civil Service Commission, Docket No. 2009-4235.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Grall, Alvarez and Skillman.
Appellant Christopher Marucci was employed as a police officer by respondent Township of West Orange. On March 19, 2009, West Orange issued a preliminary notice of disciplinary action against appellant for neglect of duty (N.J.A.C. 4A:2- 2.3(a)(7)), insubordination (N.J.A.C. 4A:2-2.3(a)(2)), and other sufficient cause (N.J.A.C. 4A:2-2.3(a)(11)). Appellant waived his right to a departmental hearing, and on June 1, 2009, West Orange issued a final notice of disciplinary action providing for appellant's immediate removal. Appellant appealed his removal to the Civil Service Commission, which referred the matter to the Office of Administrative Law (OAL).
Appellant's removal was based upon his actions after he was dispatched to the scene of an arrest of two suspects by other police officers. One of the suspects had allegedly discarded apparent drugs down a storm drain. Appellant was assigned to retrieve the objects discarded by the suspect. Although a public works department employee who was also dispatched to the scene removed the cover to the storm drain, appellant failed to remove the discarded objects lying in the drain. Instead, he took photographs of what he allegedly believed looked like crack cocaine or uncut regular cocaine. Appellant claimed in a report submitted to his superiors that he had been unable to remove the objects in the storm drain because it was five feet deep. However, a subsequent investigation revealed that the storm drain was only twenty-two to twenty-three inches deep and that the objects discarded into the drain were easily retrievable. Moreover, when the objects were retrieved, they turned out not to be drugs but rather little white Styrofoam balls used by a nearby flower store. As a result of appellant's failure to retrieve those objects and his report that they appeared to be drugs, one of the suspects spent three days in jail.
Based on the evidence presented at the OAL hearing, the Administrative Law Judge (ALJ) assigned to the case found that "the storm drain was twenty-three inches in depth; could easily be entered by a police officer once it had been opened by [the public works department employee]; that the contents of the storm drain were readily retrieved; and that the items retrieved were found not to be CDS." The ALJ also found that "[appellant] told the investigators that although he photographed the contents of the storm drain, he could not retrieve its contents both due to the depth of the drain, and due to a 'lip' which obstructed his ability to reach the objects at the bottom of the drain[,]" and that appellant's statements to the investigators "were clearly false, as his colleagues were easily able to [retrieve the objects in the storm drain] only days later." Notwithstanding these factual findings, the ALJ concluded that "a penalty short of dismissal is warranted" and reduced the penalty to a six-month suspension.
The Civil Service Commission accepted the ALJ's factual findings but disagreed with her conclusion that only a six-month suspension was warranted under the circumstances of this case. In concluding that removal was the appropriate penalty for appellant's conduct, the Commission stated:
. . . [A]ppellant responded to the scene of Williams' arrest for alleged possession of CDS. After observing what was allegedly CDS in a storm drain, the appellant waited for a public works employee to open the drain and then, he merely took photographs of the substance. He failed to physically retrieve the evidence in order that it could be conclusively established that the substance was, indeed, illegal drugs that had been in the possession of Williams. It must be emphasized that the storm drain was only 23 inches deep, and the appellant could [have] easily entered the drain and reached the evidence. . . . Although the parties have gone to great lengths to argue about the appellant's intent and whether his conduct was deliberate, the Commission finds that, regardless of whether or not the appellant intentionally neglected his duty in order to cover up another officer's error, his conduct is unacceptable. Even if, as the appellant argues, he did not act deliberately, this level of incompetence from a Police Officer cannot be countenanced. Moreover, his untruthfulness when questioned about his activities on the night of August 5, 2008 cannot be ignored. The appellant took absolutely no responsibility for his neglectful conduct; rather, he lied about why he failed to retrieve the alleged evidence and presented excuses that were not factual. This untruthfulness, when taken with his incompetent behavior at the crime scene, is particularly egregious.
As appellant acknowledges, our review of a penalty imposed by the Civil Service Commission is limited to determining whether it was "arbitrary, capricious and unreasonable." In re Carter, 191 N.J. 474, 482 (2007); see also In re Herman, 192 N.J. 19, 30-39 (2007); Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). We are satisfied, substantially for the reasons stated by the Commission, that its determination that the penalty of removal was appropriate in this case was reasonable, and therefore, there is no basis for us to disturb that penalty.
We reject appellant's argument that the Commission's final decision must be reversed because West Orange failed to file the preliminary notice of disciplinary charges within the forty-five day period provided by N.J.S.A. 40A:14-147 substantially for the reasons set forth in the ALJ's decision. This argument does not warrant any additional discussion. R. 2:11-3(e)(1)(E).
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