On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-3082-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 29, 2011
Before Judges Payne, Reisner and Simonelli.
Plaintiff, Peter Sukola, appeals from an order, entered following de novo review, containing the determination that he was guilty of violating multiple regulations promulgated by the Township of Howell Police Department and affirming his removal from employment as a police officer. On appeal, plaintiff makes the following arguments:
THE ARBITRARY, CAPRICIOUS AND UNREASONABLE STANDARD OF REVIEW IS APPLICABLE.
POINT II THE CREDIBILITY FINDINGS OF THE LOWER COURT ARE CLEARLY MISTAKEN AND SO PLAINLY UNWARRANTED THAT THE INTERESTS OF JUSTICE DEMAND INTERVENTION AND CORRECTION.
POINT III THE LOWER COURT'S FAILURE TO RECOGNIZE APPELLANT'S DISPARATE TREATMENT WAS ARBITRARY, CAPRICIOUS AND UNREASONABLE. POINT IV THE LOWER COURT'S FINDING APPELLANT VIOLATED ANY HOWELL TOWNSHIP POLICE DEPARTMENT RULES OR REGULATIONS IS ARBITRARY, CAPRICIOUS AND UNREASONABLE.
POINT V THE LOWER COURT'S DECISION TO TERMINATE APPELLANT IS ARBITRARY, CAPRICIOUS AND UNREASONABLE.
POINT VI THE LOWER COURT'S FAILURE TO RULE ON THE ISSUE OF WHETHER HOWELL TOWNSHIP IS REQUIRED TO DISCLOSE APPELLANT'S ALLEGED UNTRUTHFULNESS IS ARBITRARY, CAPRICIOUS AND UNREASONABLE.
The record discloses that plaintiff was hired as a Howell Township police officer in July 2000. In 2002, Minelli Torres was also hired by the Department as a patrolwoman. At some point, plaintiff and Torres commenced dating, and they married in 2007.
In 2008, Torres complained to her union of differential treatment and harassment, and in mid-January of that year, an internal affairs investigation was commenced by Police Captains Jeffrey Mayfield and Steven Dreher. Among Torres's complaints was the allegation that, in late 2002, she was informed that Lieutenant Andrew Kudrick had photocopied one of Torres's paychecks, which she said was confirmed by the fact that the paycheck, when she received it, appeared to have been crumpled by a photocopier. Torres brought the breach of her privacy and other matters concerning her work assignments to the attention of Corporal Guy Arancio, the President of the Police Benevolent Association. At his direction, her checks were thereafter delivered to her in sealed envelopes.
Following unsuccessful efforts by Captains Mayfield and Dreher to take a statement from Torres, who stated that she did not wish to pursue her charges, she was directed by them to prepare a report and to submit it on January 26, 2008.
Additionally, the two captains interviewed the three evening supervisors to whom Torres reported. With respect to the check, Lt. Kudrick stated that he recalled Torres's accusations, but that he was not personally involved in copying it. Following their investigation, the captains found Torres's allegations of harassment and differential treatment to be unfounded, and they recommended that she be charged with insubordination as the result of Torres's failure to produce, as instructed, the notebook of allegations of wrongdoing that she stated she had maintained, and with lack of truthfulness, as the result of Torres's new claim that she did not maintain such a notebook and as the result of the lack of other factual support for her accusations.
After charges were filed against Torres, but before a hearing occurred, the investigation was reopened and formal statements were taken from all evening squad officers. On October 21, 2008, Captain Mayfield sought a statement from plaintiff. However, plaintiff requested an opportunity to speak with the Police Chief, sought time to contact an attorney, and attempted to invoke the marital privilege. In response, the Police Chief declined to speak to plaintiff, but he was given time to contact an attorney. However, when he was unable to do so in twenty-four or so minutes, he was informed that a statement would be taken, nonetheless. Plaintiff was denied the right to exercise the marital privilege.
In connection with Torres's allegations of harassment arising from the alleged check copying incident, plaintiff was asked, "Who made a copy of her paycheck?" Plaintiff responded:
Lt. Kudrick. I was at the copier as well as [Cpl.] Arancio and witnessed the check get stuck in the copy machine. We weren't married at the time, we were only dating and no one on this department knew we were dating. After that she requested her check be placed in an envelope instead of a large pile like they used to be.
Plaintiff denied that he "ever" discussed the incident with "Officer" Arancio.
On October 22, 2008, a statement was taken by Capt. Mayfield from Cpl. Arancio and witnessed by Capt. Dreher. In response to questions regarding Torres's allegations of harassment, Cpl. Arancio testified that Torres had complained about a sector assignment ordered by Lt. Kudrick. He additionally testified:
She did mention another incident but I am not even sure if Lt. Kudrick was a part of that incident because it took ...