April 9, 2012
PETER SUKOLA, PLAINTIFF-APPELLANT,
TOWNSHIP OF HOWELL, TOWNSHIP OF HOWELL POLICE DEPARTMENT, RONALD CARTER, CHIEF OF POLICE AND HELENE SCHLEGEL, HOWELL TOWNSHIP MANAGER, DEFENDANTS-RESPONDENTS.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 place two or more years ago.
I think it was two years ago, I'm not sure, two or more years ago, she grabbed me and said that she had found out somebody made a copy of her paycheck. I said, why would anyone make a copy of your paycheck? At that time there was a lot of discussion by a group of people that all got hired around the same time as her and everybody was at a different pay scale and everyone believed she was at a higher pay scale. She said that somebody, but she never said who[,] had told her that Andy [Kudrick] had made the copy of the paycheck. I said [there's a] way I can fix it right now, because you don't know for sure, . . . and [I] asked Heather to put her paycheck in an envelope from now on.
Additionally, Cpl. Arancio said that Torres had spoken to him about the incident approximately one week before his statement was given, saying:
[R]emember when you told me you saw Lt.
Kudrick make a copy of that paycheck, and I [Arancio] said you must be mistaken, that is not how it went. She said I might be mistaken but I thought you said that you were standing [there] when he made that copy. I told her, had I seen him making a copy of her paycheck I certainly would have said something to him. Then I reminded her how her paycheck, after that incident, was the only paycheck being placed in an envelope and she said she just could have been mistaken about who told her who made the copy.
Cpl. Arancio denied being present when Lt. Kudrick allegedly made a copy of Torres's paycheck and it got crumpled in the copy machine. When asked whether he had ever discussed this particular incident with plaintiff, Cpl. Arancio responded: "I don't remember." The following exchange then occurred:
Q. If I told you Ptl. Sukola has stated you and he witnessed Officer Kudrick make the copy of the paycheck when it became crumpled in the copy machine would you say he told the truth?
Q. Can you think of any reason why he would make such a statement?
A. Probably to give whatever he is saying credibility. I didn't even know a paycheck got crumbled until right now. I thought she just had knowledge that somebody made a photocopy of it. This makes absolutely no sense because as I previously told you, I corrected the problem with the finance officer by having her paycheck put into an envelope from then on and I don't know why Officer Sukola would have just stood by and allowed his girlfriend's paycheck to be photocopied and not report it.
On October 27, 2008, a statement was also taken by Capt. Mayfield from Lt. Kudrick. Kudrick denied that he had photocopied Torres's check. Further, he stated that Cpl. Arancio had approached him on the previous day to discuss the disruptive effect that Torres and plaintiff were having on the squad and of "the need to separate them and remove them for the betterment of the squad." Lt. Kudrick stated that Cpl. Arancio had accused plaintiff of lying during the investigation of Torres's charges, and Lt. Kudrick stated that plaintiff had been found to have lied in the past.
On December 4, 2008, the Department issued a Notice of Disciplinary Action against plaintiff at the recommendation of Captains Mayfield and Dreher. The Notice charged plaintiff with the following violations of Howell Township Police Department Rules and Regulations: Chapter/Section 3.2.3, police officers shall conduct themselves in accordance with high ethical standards on and off duty; 4.1.5, Reporting Violations of Laws and Rules (members and employees knowing of other employees violating laws, ordinances, rules of the Department shall report same in writing to the Chief of Police through official channels); 4.1.6(b), Insubordination (members and employees shall not use any disrespectful or abusive language or action toward a supervisor); 4.1.15, Standards of Conduct (members shall conduct their private and professional lives in such a manner as to avoid bringing the Department into disrepute); 4.1.17, Cooperation (all members are strictly charged with establishing and maintaining a high spirit of cooperation within the Department); 4.1.22, Obedience to Laws and Rules (members and employees shall observe and obey all laws and ordinances, all rules and regulations of the Department, and all general and special orders of the Department); 4.12.6, Truthfulness (members are required to be truthful at all times whether under oath or not), and 6.1.1, Repeated Violations (repeated violations of the rules of conduct shall be indicative of members' disregard for their duty and may be cause for dismissal, regardless of the type or severity of the offense(s)).
In specifying the factual bases for the charges, the Notice set forth that Torres had alleged she was told that Lt. Kudrick had made a copy of her paycheck, but that she did not have the name of the officer who had given her that information. During the internal investigation of her charge, plaintiff was interviewed, and he stated that Lt. Kudrick was the culprit, and his conduct had been witnessed by him and Cpl. Arancio. Nonetheless, he never came forward with this information prior to the investigation, and sought not to disclose it during the investigation by claiming the protection of the marital privilege. Further, both Cpl. Arancio and Lt. Kudrick denied the allegation. The Notice additionally stated that a four-month sanction would be imposed, but stated that, if contested, that plaintiff would be afforded a hearing in the matter.
On November 2, 2009, plaintiff's attorney forwarded a compact disc to Howell Township's counsel containing a recording of a conversation between plaintiff and Cpl. Arancio that had been made, without Arancio's knowledge on October 19, 2008, before either man had given his statement. The disc was accompanied by a cover letter that claimed the recording proved plaintiff's claims that Cpl. Arancio had witnessed the copying of the check by Lt. Kudrick. The recording, which was approximately forty minutes in length and consisted of an obscenity-laced diatribe by plaintiff on multiple topics, contained a short segment in which plaintiff introduced the subject of Torres's complaint and the check copying. During it, Cpl. Arancio stated that he had understood that Torres had not wished to get everyone involved. Plaintiff responded, that was so because everyone would deny having seen anything. Plaintiff then continued:
And I, I can't get involved and it's none of my business. Dude, I was there. You were there when fucking Andy was making copies of her checks. You were standing right next to the fucking copier. And now they're gonna sit there and say, they did not see nothing, oh no, I didn't see nothing. I didn't do that. That's a bunch of bullshit. That's fucking, you know, and I told her, I said I'm not getting involved in it. I really can't.
To this, Cpl. Arancio responded, "Yeah."
When confronted on November 4, 2009 with this statement together with his prior statement, Cpl. Arancio said that he recalled the recorded conversation, during which plaintiff, who was highly upset, was venting about the internal affairs investigation involving plaintiff's wife. Although Cpl. Arancio acknowledged again that Torres had told him she believed Lt. Kudrick was the perpetrator, she never said that Cpl. Arancio was present and had witnessed the act. If he had been present, Cpl. Arancio stated, he would have stopped the conduct, but he was not there. When asked what his "yeah" response meant, Cpl. Arancio stated it was not an "affirmative answer," but merely a means of letting plaintiff rant, without causing marital problems by attempting to clarify what Torres had told Arancio regarding the extent of her knowledge of the incident.
The fact that plaintiff had not been truthful when he failed to disclose his conversation with Cpl. Arancio and his recording of that conversation in October 2008 led, on February 18, 2010, to additional charges of violation of regulation 4.12.6, Truthfulness; 6.1.1 Repeated Rule Violations; 4.1.17, Cooperation; and 4.12.5, requiring members of the Department to answer questions, file reports, and render material and relevant statements in Departmental investigations.
The charges were consolidated and heard on March 17, 2010 by Howell Township Manager, Helene Schlegel. Ms. Schlegel held the marital privilege to be inapplicable to plaintiff's testimony because that testimony concerned his conversations other than those with his wife, conversations with his wife prior to their marriage, or conversations that he and his wife did not keep confidential. Schlegel resolved credibility issues in favor of Capt. Mayfield, Lt. Kudrick and Cpl. Arancio. She determined that plaintiff had lied when he stated that he witnessed Lt. Kudrick photocopying Torres's paycheck, when he said the photocopying was witnessed by Cpl. Arancio, and when he stated that did not discuss the paycheck copying incident with Cpl. Arancio before giving his statement on October 21, 2008. She further found that there was sufficient credible evidence in the record to support the charges against plaintiff and to warrant termination.
Plaintiff filed an action in lieu of prerogative writs in the Superior Court seeking de novo review of the administrative determination pursuant to N.J.S.A. 40A:14-150.*fn1 Following argument, the trial judge issued a lengthy written opinion addressing the issues raised by plaintiff in connection with his action and sustaining the majority of the charges. In doing so, the judge gave deference to Schlegal's credibility determinations, and he regarded it to be "suspicious" that plaintiff found the need to surreptitiously record his conversation with Cpl. Arancio on October 19, 2008. Further, he concurred with Cpl. Arancio's explanation of his response to plaintiff's recorded description of the copying incident,determining that it did not signal agreement with what plaintiff had stated. The judge further agreed that plaintiff had lied when he stated during the investigation that he had not discussed the check copying incident with Cpl. Arancio, finding plaintiff's explanation of his response not to have been credible. The judge thus concluded: "[T]here is simply no evidence which offers such strong support of plaintiff's version of events to warrant this judge's rejection of Manager Schlegel's credibility determinations."
The judge next addressed plaintiff's claims that both he and Cpl. Arancio had lied when denying discussion with the other about the check copying incident prior to giving their October 2008 statements, but that plaintiff was charged, whereas Cpl. Arancio was not. That plaintiff was terminated for lying, but Cpl. Arancio was not charged, let alone terminated, was, according to plaintiff, disparate treatment. In this regard, the judge noted that Cpl. Arancio had merely claimed a lack of memory of that portion of a lengthy conversation; he did not deny that the subject had arisen, as had plaintiff. The judge concluded: "There is no way to know whether Cpl. Arancio did in fact remember plaintiff talking about the paycheck copying incident." Plaintiff, on the other hand, had intentionally tape recorded the conversation, and he had made the statements regarding the copying of the paycheck. Moreover, plaintiff and Cpl. Arancio were not similarly situated, in that plaintiff had been previously charged with untruthfulness and settled the matter in 2007 by accepting discipline for insubordination, whereas Cpl. Arancio's twenty-four-year record with the Department did not contain any such charges.
The judge additionally addressed each of the charges against plaintiff and their factual support, concluding that there was sufficient evidence to find that plaintiff had violated regulations 3.2.3, 4.12.6, 4.1.15, 4.1.17 (with respect to the February 18, 2010 Notice of Disciplinary Action), 4.1.22 and 6.1.1. *fn2 The judge rejected the Department's position that plaintiff had violated regulation 4.1.5, requiring that violations of law by other officers be reported in writing;
6.1.6(b), prohibiting the use of disrespectful or abusive language or action directed toward a supervisor; 4.1.17 (lack of cooperation with respect to the December 4, 2008 Notice of Disciplinary Action); and 4.12.5, requiring members to answer questions, file reports, or render material and relevant statements in a Department investigation when such questions and statements are directly related to job responsibilities.
The judge next considered the applicability of the marital privilege set forth in N.J.R.E. 509 to the statements given by plaintiff. Although the judge found that "a few questions in plaintiff's statement of October 21, 2008, could have required disclosure of confidential communications in order for plaintiff to answer completely, none of the answers to those questions form the bases of the charges against plaintiff." Accordingly, any error was harmless.
The judge properly declined to address whether the Supreme Court's decision in Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), required the Howell Township Police Department to disclose plaintiff's personnel file and disciplinary records to defense attorneys representing clients against whom plaintiff might testify.
As a final matter, the judge found that termination was an appropriate discipline for plaintiff's violations. The judge held:
Not only does plaintiff have a prior disciplinary record, but the "numerous occurrences over a reasonably short space of time . . . evidence an attitude of indifference amounting to neglect of duty. Such conduct is particularly serious on the part of employees whose job is to protect the public safety . . . ." See [West New York v.] Bock, 38 N.J. [500,] 522-23 [(1962)]. Moreover, plaintiff has been found to have leveled false accusations against two (2) of his superior officers, in addition to surreptitiously recording a conversation with one of them. Therefore, his return to the Department will be so disruptive to the good order and morale of the Department that termination is the best option. Moreover, it is hard to imagine that his fellow officers will be able to trust plaintiff in the future.
The judge thus found the discipline imposed to have been appropriate.
On appeal, plaintiff raises the same arguments that he raised before the trial judge, while additionally asserting that the judge's decision to terminate plaintiff's employment was arbitrary, capricious and unreasonable.
The Supreme Court has held in a police disciplinary context:
An appellate court plays a limited role in reviewing the de novo proceeding. In State v. Johnson, 42 N.J. 146 (1964), we explained that the court's "function on appeal is not to make new factual findings but simply to decide whether there was adequate evidence before the  Court to justify its finding of guilt." Id. at 161 (quoting State v. Dantonio, 18 N.J. 570, 575 (1955). Thus, unless the appellate tribunal finds that the decision below was "arbitrary, capricious or unreasonable" or "[un]supported by substantial credible evidence in the record as a whole," the de novo findings should not be disturbed. [In re Disciplinary Procedures of Phillips, 117 N.J. 567, 579 (1990).]
Utilizing that standard, we affirm the order of the trial judge, finding it to have been amply supported by the record and the analysis set forth in his comprehensive written opinion, upon which we substantially rely in affirming on appeal.
We add only that, in upholding the discipline imposed upon plaintiff, the trial judge considered appropriate factors, reasonably drawn from the record and thoroughly analyzed by him. In reaching his conclusion, the judge recognized that he could not consider plaintiff's past record to prove the present charges, West New York v. Bock, 38 N.J. 500, 523 (1962), and he properly utilized that record, along with evidence supporting the multiple present charges, in determining the appropriate penalty for plaintiff's conduct. We find no error to have occurred.