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In the Matter of

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


April 5, 2012

IN THE MATTER OF PAUL MESSINA, CITY OF TRENTON.

On appeal from the Civil Service Commission, CSC Docket No. 2009-2296.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 21, 2012

Decided

Before Judges Graves and J. N. Harris.

Paul Messina, a police captain employed by the City of Trenton, appeals from the Final Administrative Action of the Civil Service Commission imposing an aggregate fifty-day suspension without pay. The Commission adopted the findings of fact of the Office of Administrative Law (OAL) as presented in the Administrative Law Judge's (ALJ) initial decision, but did not accept the ALJ's recommendation for a thirty-five-day suspension without pay. In light of the record and applicable law, and following our review of the arguments on appeal, we affirm.

I.

The Commission's disciplinary action and sanctions relates to two separate events: (1) an August 13, 2008 public quarrel between Messina and a subordinate police officer, and (2) a settlement of a prior disciplinary matter in which Messina agreed to a future thirty-day suspension (in addition to a penalty for any new charge) if there were a later finding that Messina engaged in conduct unbecoming a public employee within one year.*fn1

We begin with the events of August 13, 2008. At around 4:25 p.m., Messina was driving an unmarked police vehicle on Perry Street in Trenton when he observed traffic congestion on the roadway. From his vehicle, Messina scanned the area and saw a patrol officer standing nearby who was not actively directing traffic. Messina spoke to the patrol officer -- suggesting a more proactive approach such as entering the roadway to guide the flow of motor vehicles -- and then Messina drove away. Messina, however, immediately returned by driving his vehicle westbound in an eastbound lane of Perry Street and then parked his vehicle against the flow of traffic. At no time did Messina activate his emergency lights or siren.

When Messina re-encountered the patrol officer an argument ensued. Messina scolded the subordinate in loud and profane language, and ordered him to stand and direct traffic from the middle of the nearby intersection. Almost immediately, a police lieutenant arrived on the scene and intervened in the matter. Messina then left the scene promising to file disciplinary charges against the patrol officer. Instead, the next day, the patrol officer filed an internal affairs complaint against Messina.

An investigation launched shortly thereafter. Eventually, on October 17, 2008, nine charges and specifications were lodged against Messina by Internal Affairs Bureau Supervisor Detective Lieutenant Timothy Thomas: four charges of conduct unbecoming a public employee, N.J.A.C. 4A:2-2.3(a)(6) and five charges of violating Trenton Police Department Rules and Regulations: §3:1.1 (conduct in public and private), §3:1.2-4 (demonstration of respect), §3:5.2 (chronic inefficiency or incompetency), §4:23 (criminal law), §4:26 (indecent language). On October 21, 2008, Messina was served with a Preliminary Notice of Disciplinary Action (PNDA).

After a December 2008 departmental hearing, Messina was found guilty of two charges of conduct unbecoming a public employee, and two charges of violating §3:5.2 (chronic inefficiency or incompetency) and §4:23 (criminal law). An aggregate sanction was imposed by the City of fifty days suspension without pay, which consisted of twenty days for the incident of August 13 and thirty days pursuant to the abeyance agreement. Messina appealed to the Commission, which transmitted the matter to the OAL.

In August 2010, after three days of evidentiary hearings, the ALJ issued her initial decision. First, the ALJ rejected Messina's argument that the City violated the so-called forty-five-day rule of N.J.S.A. 40A:14-147.*fn2 The ALJ found no evidence that the PNDA was issued more than forty-five days after Detective Lieutenant Thomas obtained sufficient information to file the complaint. Second, the ALJ determined that the City had proven that Messina was guilty of two charges of conduct unbecoming a public employee, but dismissed the other charges that involved putative violations of the police department's internal rules and regulations. The ALJ recommended a five-day suspension without pay as the sanction for the conduct unbecoming a public employee, plus a thirty-day suspension without pay pursuant to the abeyance agreement.

In October 2010, the Commission rendered its final decision. It agreed with the ALJ "that there [was] no basis to dismiss the charges based on the '45-day rule.'" Furthermore, the Commission found that (1) it was dangerous and inappropriate for Messina to have driven on the wrong side of the road without his emergency lights or sirens and (2) Messina's yelling and use of profanity "was certainly not discreet in reprimanding" the patrol officer. It concluded that Messina did not present good judgment. His conduct [was] especially egregious considering he is a Police Captain and is expected to show restraint in all of his actions.

The Commission agreed with the ALJ and found Messina guilty of conduct unbecoming a public employee.

However, the Commission disagreed with the ALJ regarding the charge of violating §3:5.2 (chronic inefficiency or incompetency). It held the following:

The ALJ indicated that [Messina] was not on duty at the time of the incident, since he was leaving work. Nonetheless, [Messina's] off duty conduct may be considered. See e.g., Karins v. City of Atlantic City, 152 N.J. 532 (1998). Particularly in this case, [Messina] was acting as a supervisory officer at the time by attempting to give [the patrol officer] an order. The Commission reiterates that high standards are placed on supervisory officers, who are expected to exhibit good judgment and character in the performance of their duties. [Messina] is a Police Captain and did not demonstrate adequate performance in the manner in which he handled [the traffic officer], from driving his vehicle on the wrong side of the road to yelling at [the patrol officer] in public and using profanity. Accordingly, the Commission upholds the charge of inefficiency or incompetency.

The Commission reviewed Messina's disciplinary history and imposed the same sanction originally imposed by the City: an aggregate fifty-day suspension without pay. This appeal followed.

II.

Well-established legal principles guide our review of the Commission's decision. First, our scope of review is limited. In re Stallworth, 208 N.J. 182, 194 (2011). Second, a strong presumption of reasonableness attaches to the Commission's decision. In re Carroll, 339 N.J. Super. 429, 437 (App. Div.), certif. denied, 170 N.J. 85 (2001). Third, "[a]n administrative agency's final quasi-judicial decision will be sustained unless there is a clear showing that it is arbitrary, capricious or unreasonable, or that it lacks fair support in the record." In re Herrmann, 192 N.J. 19, 27-28 (2007).

We defer to "the agency's expertise and superior knowledge of a particular field." Id. at 28. We do not substitute our own judgment for that of the Commission, "even though [we] might have reached a different result." In re Carter, 191 N.J. 474, 483 (2007). Nonetheless, we are not bound by an agency's decision on a question of law. Thurber v. City of Burlington, 191 N.J. 487, 502 (2007). While we accord substantial deference to an agency's interpretation of the statutes it was created to enforce, we still reverse where the decision is "plainly unreasonable." Stevens v. Bd. of Trs., 294 N.J. Super. 643, 652 (App. Div. 1996).

Messina bears the burden to demonstrate grounds for reversal. In re Arenas, 385 N.J. Super. 440, 443-44 (App. Div.), certif. denied, 188 N.J. 219 (2006) (citing McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 563 (App. Div. 2002). "Courts can intervene only in those rare circumstances in which an agency action is clearly inconsistent with its statutory mission or with other State policy." George Harms Constr. Co. v. N.J. Tpk. Auth., 137 N.J. 8, 27 (1994).

Our review of disciplinary sanctions is also governed by this deferential standard. In re Stallworth, supra, 208 N.J. at 195. The pertinent question for this court is "whether such punishment is so disproportionate to the offense, in light of all the circumstances, as to be shocking to one's sense of fairness." In re Carter, supra, 191 N.J. at 484 (internal citations and quotation marks omitted).

In light of this standard of review, we affirm the Commission's final decision. The ALJ's factual findings, which the Commission adopted, were fully supported by substantial credible evidence at the hearing. Public safety concerns are a legitimate issue to consider in addressing the propriety of sanctions against police officers.

Furthermore, we agree that the forty-five day rule was not violated. The forty-five-day period only begins to run from "the date on which the [official] filing the complaint obtained sufficient information to file the matter upon which the complaint is based." N.J.S.A. 40A:14-147. The record supports the ALJ's determination -- adopted by the Commission -- that Messina did "not establish when [Detective Lieutenant] Thomas had information sufficient to file the complaint." Finally, we note that N.J.S.A. 40A:14-147 applies only to charges based upon the City's internal rules and regulations. Messina was charged with both internal violations and violations under N.J.A.C. 4A:2-2.3(a)(6), which is a statewide regulation adopted pursuant to the Commission's authority pursuant to N.J.S.A. 11A:2-20. Consequently, even if the charges under the internal rules and regulations had been untimely, the charges under N.J.A.C. 4A:2-2.3(a)(6), which were essentially the same, would not have been similarly barred. See McElwee v. Bor. of Fieldsboro, 400 N.J. Super. 388, 394 (App. Div. 2008).

In sum, the Commission's decision has not been shown to be arbitrary, capricious, or contrary to applicable law. Consequently, we have no basis to set it aside.

Affirmed.


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