April 25, 2012
IN THE MATTER OF GREGORY VOCI, ATLANTIC CITY DEPARTMENT OF PUBLIC SAFETY.
On appeal from the New Jersey Civil Service Commission, Agency Docket No. 2010-884.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued February 16, 2012
Before Judges Sapp-Peterson and Ostrer.
Gregory Voci, a sergeant employed by the Atlantic City Police Department (ACPD), was charged in January 2004 with violating ACPD Rule 4:5, barring outside employment without approval, and Rule 3:12.5, requiring employees to be truthful, contrary to N.J.A.C. 4A:2-2.3(a)(11), which subjects a civil service employee to discipline for "[o]ther sufficient cause." In August 2009, the ACPD sustained the charges and terminated Voci from the force, but agreed to stay the discipline pending Voci's appeal to the Merit System Board (Board), which referred the case to the Office of Administrative Law (OAL) for a hearing before an administrative law judge (ALJ).*fn1 In a July 2010 initial decision, the ALJ recommended removal after finding Voci, as charged, was employed without permission at a so-called "gentleman's club" called "Bare Exposure," and he was not truthful when answering three questions by ACPD Internal Affairs officers about his activities at the club. In September 2010, the Civil Service Commission (Commission) adopted the ALJ's findings of fact and conclusions of law, and then reaffirmed the sanction in February 2011 after Voci sought reconsideration.
Voci appeals from the Commission's decision. We reverse in part and affirm in part. We conclude the ACPD rule banning unapproved outside employment covered only paid activity. As the record does not support a finding that Voci was paid, we reverse as to that charge, although there was ample evidence to support a finding Voci assisted in aspects of the club's operations. We affirm the Commission's decision that Voci was not truthful in responding to two questions about the nature of his involvement with club operations. Consistent with our construction of the outside employment rule, we reverse as to Voci's denial that he was employed at the club. We remand for reconsideration of the sanction in light of our decision.
We briefly summarize the facts based on the evidence presented at the hearing before the ALJ. With the assistance of two Egg Harbor City undercover police officers, John and Robert,*fn2
the Atlantic City Police Department conducted an investigation into possible service of alcoholic beverages without a permit at Bare Exposures, a gentlemen's club in Atlantic City. ACPD used the Egg Harbor officers because club personnel might recognize Atlantic City police officers.
Before John and Robert conducted their on-site investigation on November 29, 2003, ACPD officers showed them photographs of Voci and several other officers who, the ACPD officers believed, might be present at the club. Witnesses testified Voci was not a target of the investigation, but it was important for John and Robert to be able to recognize any ACPD officers in the event of an emergency. It was, however, rumored Voci had frequented the club or worked there.
After a club employee at the exterior door "wanded" John and Robert for weapons, they entered a vestibule where they saw Voci standing before a second door. Attired in a dark sweatshirt with "ACPD" lettering, Voci said, "Twenty," and collected twenty-dollar entrance fees from the Egg Harbor City officers. Later, while inside the club, John noticed Voci in an area of the premises designated for employees only. When the undercover officers began to leave, an hour after they entered, John again saw Voci in the vestibule area. John told Voci he had to make a phone call and would be back. Voci then reached for a stamp and marked John's and Robert's hands so staff would know they had already paid admission.
After John and Robert reported their findings, ACPD's Internal Affairs Unit interviewed Voci about his activities at the club. The interview occurred on December 16, 2003. Sergeants Michael Russack and Daniel McCausland questioned Voci. Present was PBA President Sean McCausland. Before questioning, Voci was specifically informed that he was being questioned in connection with an allegation of unauthorized outside employment. During the questioning, Voci acknowledged his awareness of the departmental policy requiring an officer to request permission to engage in outside employment. In response to questioning, Voci acknowledged he was familiar with the Bare Exposures club, he knew what type of establishment it was and he knew the manager, the owner and other employees. He also admitted attending the club when off duty.
He was then asked the following questions regarding his activities on November 29th:
Q. Directing your attention specifically to the 29th of November, it was a Saturday night, do you recall whether you were in the club that night?
A. I don't know.
Q. You don't recall whether you were there or not that night?
A. I don't remember.
Q. Saturday night.
A. Offhand I don't remember.
Voci's answers to the next three questions form the basis of the charge he was not truthful:
Q. Okay. Have you ever been employed at Bare Exposures?
Q. Have you assisted them in any type of their operation or any operation at the club?
Q. Have you ever worked the front door or taken any money or anything of that nature while there?
Russack acknowledged at the OAL hearing that the department had not established that Voci received any pay or monetary compensation from the club. He also acknowledged the owners of the club denied Voci was employed there. He also knew Voci's nephew, Matthew Fox, was the general manager of the club, but did not interview him or obtain payroll records.
John also testified before the OAL. He described his investigations and his observations on November 29, 2003. His written report was admitted into evidence.
At the hearing, Voci denied he was employed at the club. He explained that he visited the club only to speak to his nephew; he did so infrequently, and for periods of less than an hour. Voci's retired captain, and a retired sergeant testified they often entered the club on police business and never saw Voci present. The retired captain also testified that he had often reviewed, before the chief did, requests for permission to engage in outside employment and he understood the outside employment rule to cover only paid employment.
Voci admitted that he may have helped his nephew at the club, but he testified he did not believe he was required to seek permission for uncompensated work. Voci admitted that he could have taken money from John and Robert, and could have stamped them as they exited, but he did not recall. With respect to the alleged untruthful answers, he explained he denied he was employed at the club and denied he "assisted them in any type of their operation or any operation" because he understood the questions to refer to activities while engaged in paid employment. He denied he "worked the front door or had taken any money or anything of that nature" because he "never took money at the door in terms of outside employment."
The ALJ found John to be a credible witness. The ALJ accepted John's description of Voci's activities at the club. On the other hand, the ALJ found incredible Voci's responses in his 2003 Internal Affairs interview. He found Voci's lack of memory, just seventeen days after the incident, to be unbelievable, and his explanation seven years later at the hearing to be both implausible and evasive. The ALJ concluded Voci "lied" in response to the IA officers.
Neither the ALJ nor the Commission expressly addressed whether the ban on outside employment covered unpaid work. The ALJ found, however, that Russack "never established that [Voci] was paid or otherwise received a benefit" from the club. With respect to Voci's alleged failure to be truthful, neither the ALJ nor the Commission set forth the elements of the charge. However, implicit in the finding Voci lied was the legal conclusion that a violation of the truthfulness rule required at least a knowing failure to be truthful, and not the mere mistaken utterance of a false statement.
Voci sought reconsideration of the removal sanction, arguing removal was inconsistent with treatment of other police and corrections officers disciplined for untruthfulness and related rule violations. The Commission distinguished those cases Voci cited where the appointing authority itself did not seek removal, as the Commission is barred by statute from imposing removal when the appointing authority has not. N.J.S.A. 11A:2-19. However, the Commission did not address or otherwise attempt to reconcile its decision in In re Patrick Burns, CSV 11655-09, Initial Decision (March 18, 2010), adopted, Comm'r. (April 30, 2010) where a police department sought removal but the Commission reduced the sanction to six months' suspension for making untruthful statements to Internal Affairs, as well as improper demeanor, and improperly handing a weapon - pepper spray - to an unauthorized person.
On appeal, Voci presses three points: he was not employed by the club; he was truthful during the IA investigation; and, even if the violations are affirmed, the decision to terminate must be reversed. We address them in turn.
We shall not disturb the Commission's finding, based on John's credible testimony, that Voci was present at the club on November 29, 2003, collected entrance fees, moved about in an employee-only area, and stamped the undercover officers' hands as they left. We defer to agency fact findings supported by the record. Utley v. Bd. of Review, 194 N.J. 534, 551 (2008); see also Close v. Kordulak Bros., 44 N.J. 589, 599 (1965) (reviewing court must determine "whether the findings made could reasonably have been reached on sufficient credible evidence present in the record, considering the proofs as a whole," with due regard to the fact-finder's opportunity to assess credibility, and the agency's expertise where pertinent)(internal quotations and citation omitted). However, there was insufficient evidence upon which to conclude Voci was paid for his work at the club or that he had an interest in the business. Based on our determination that the outside employment rule is not "sufficiently definite" to inform police officers subject to the rule that outside employment applies to unpaid work, we conclude Voci did not violate the rule. See In re Review of Admin. Promulgation of Health Care Adm. Bd., 83 N.J. 67, 82 (regulations must be "sufficiently definite to inform those subject to them as to what is required"), appeal dism. and cert. denied, 449 U.S. 944, 101 S. Ct. 342, 66 L. Ed. 2d 208 (1980).
The interpretation of ACPD's rules and regulations is a purely legal issue, which we consider de novo. Klawitter v. City of Trenton, 395 N.J. Super. 302, 318 (App. Div. 2007). We may afford deference to an agency's interpretation of regulations "'within its implementing and enforcing responsibility.'" Utley, supra, 194 N.J. at 551 (quoting In re Appeal by Progressive Cas. Ins. Co., 307 N.J. Super. 93, 102 (App. Div. 1997)). We do so because the agency that drafted and promulgated the rule should know its meaning. Essex Cty. Bd. of Taxation v. Twp. of Caldwell, 21 N.J. Tax 188, 197 (App. Div.), certif. denied, 176 N.J. 426 (2003).
However, "[a]n appellate tribunal is . . . in no way bound by the agency's . . . determination of a strictly legal issue." Mayflower Securities Co. v. Bureau of Securities, 64 N.J. 85, 93 (1973); see also Mortgage Bankers Ass'n v. N.J. Real Estate Comm'n, 102 N.J. 176, 191 (1986). Our standard of review allows us to intervene when an agency action rests upon a misinterpretation of a regulation or statute. See Mazza v. Bd. of Trustees, 143 N.J. 22, 25 (1995) (stating an appellate court "can intervene" when, among other grounds, "the agency's action violates express or implied legislative policies," that is, where the agency did not "follow the law").
"[A]n agency may not use its power to interpret its own regulations as a means of amending those regulations or adopting new regulations." Venuti v. Cape May Cnty. Constr. Bd of Appeals, 231 N.J. Super. 546, 554 (App. Div. 1989). Also, while administrative regulations must be flexible, they must also be "sufficiently definite" to provide notice to those governed by them. In re Review of Admin. Promulgation of the Health Care Adm. Bd., supra, 83 N.J. at 82; see also Jansco v. Waldron, 70 N.J. 320, 328 (1976) (police department adoption of disciplinary rule "subject to standards of due process and reasonableness"). "The test is whether the statute gives a person of ordinary intelligence fair notice that his conduct is forbidden and punishable by certain penalties." In re Suspension or Revocation of the License of DeMarco, 83 N.J. 25, 37 (1980) (construing statute authorizing Board of Medical Examiners to impose penalties for violating provision of regulatory law).
In interpreting a regulation, we look to the same canons of construction applied to statutes. Essex Cty. Welfare Bd. v. Klein, 149 N.J. Super. 241, 247 (App. Div. 1977). We look first to the regulation's plain language. Cruz-Diaz v. Hendricks, 409 N.J. Super. 268, 275-76 (App. Div. 2009) (stating, when interpreting regulations, court must consider plain meaning of the language used, assuming the drafter meant to ascribe to the words their ordinary meaning), certif. denied, 200 N.J. 548 (2009). If there is ambiguity, we endeavor to construe the regulation to implement the apparent intent or purpose of its adoption. Seacoast Builders Corp. v. Jackson Twp. Bd. of Educ., 363 N.J. Super. 373, 378-79 (App. Div. 2003) (where regulation is ambiguous and court is unassisted by prior history of agency construction, "the key to decision lies in the public policy" underlying the regulation). In searching for the underlying policy, we may look to the intent of the statute authorizing the promulgation of the regulation. Czar, Inc. v. Heath, 398 N.J. Super. 133, 139 (App. Div. 2008) (construing regulation in light of "plain reading" and "intent of the Act" authorizing it), aff'd as modified, 198 N.J. 195 (2009). The regulation must also be read in pari materia with other regulations and statutes on the same subject. Ibid.
Where ambiguity remains, we should construe the disciplinary provision strictly, given the potentially extreme consequences of violation - removal from office. See State Bd. of Med. Exam'rs v. Warren Hosp., 102 N.J. Super. 407, 414 (Cty. Ct. 1968) (strictly construing provision authorizing civil penalties for violation of medical licensing law, N.J.S.A. 45:9-22), aff'd o.b., 104 N.J. Super. 409 (App. Div.), certif. denied, 54 N.J. 100 (1969); see also Norman J. Singer, 3 Sutherland Statutory Construction § 59:1 at 155 (7th ed. 2008) ("If there is some sanction in the statute to compel obedience beyond mere redress to an individual for injuries received, the statute is penal."); id. at § 59:2 (noting rule of strict construction has been applied to statutes governing revocation of licenses, attorney disbarrment, and teacher dismissal); cf. Marter v. Repp, 80 N.J.L. 530, 531-32 (Sup. Ct. 1910) (forfeiture of a license is penal in nature); City of New Brunswick v. Speights, 157 N.J. Super. 9, 21 (Cty Ct. 1978) ("[a] court may find that the loss of a police officer's position with a city is sufficiently severe and carries with it . . . penal and quasi-criminal overtones").
Applying these principles, we conclude the regulation covered only remunerated activities. We first consider the plain language of the outside employment rules.
4:5 OUTSIDE EMPLOYMENT
Prior to engaging in any outside business or employment, the member or employee shall request permission to do so to the Chief of Police through channels prescribed in the approved form[.] 4:5.1 Permits for Outside Employment The decision of the Chief of Police to approve or deny permission to work outside of the Department is final. An appeal to higher or other levels within the Department will not be considered. Department general orders shall govern the policy and procedures to be employed when considering off-duty employment requests."
Rule 4:5 thus requires a police officer to request permission before "engaging in any outside business or employment." The ordinary meanings of both "business" and "employment" include the element of profit or remuneration. See Black's Law Dictionary 9th edition (2004) (defining "employment" to mean "[w]ork for which one has been hired and is being paid by an employer" and defining "business" to mean "[a] commercial enterprise carried on for profit; a particular occupation or employment habitually engaged in for livelihood or gain").
This interpretation is not inconsistent with the subparagraph empowering the Police Chief "to approve or deny permission to work outside of the Department." ACPD Rule 4:5.1. Although "work" may be understood to refer to any physical or mental efforts, whether paid or not, the word appears under the heading, "Permits for Outside Employment," and, in context, simply refers back concisely to the phrase "outside business or employment" in ACPD Rule 4:5.
The department's outside employment application form is the only extrinsic material in the record that illuminates the department's intent in adopting the regulation. We have not been provided with the "general orders" that "shall govern the policy and procedures to be employed" when considering outside employment applications. ACPD Rule 4:5.1 Although the application form has a place for the applicant to indicate his or her agreement to "abide by the guidelines of the procedures for outside employment as set forth by the Department," the record before us does not include those guidelines.
However, the application form supports our construction of the rule. The form requires the applicant to describe the "type of business" where the officer would be employed, which reflects an intention to cover profit-making enterprises. And the form requests disclosure of salary, which reflects an understanding that outside employment is remunerated.
The form also requires the applicant's commander to disclose the days the applicant has been on sick leave or failed to report for duty, reflecting an intent to prevent outside employment from interfering with an officer's on-the-job performance. Concededly, any outside activity - paid or unpaid - could affect an officer's health and stamina. However, the reference to salary and business reflects an apparent intent to cover the narrower category of paid activities.
We also note that while the ACPD apparently construed its rule in Voci's case to cover outside work whether paid or not, unrebutted evidence was presented at the hearing from a retired captain that the rule was consistently applied only to paid work. Thus, the apparently unprecedented application of the rule to unpaid work is not entitled to the deference we may otherwise accord an agency's interpretation of its own regulation. See State, Dep't of Env't Prot. v. Stavola, 103 N.J. 425, 435 (1986) (the maxim that courts should defer to an agency's reasonable interpretation of a statute it is charged with implementing carries greater force when the interpretation is a longstanding one, as opposed to when it involves "its first application . . . to a new situation").
The statute authorizing ACPD to adopt its outside employment rule provides little help in interpreting the rule. N.J.S.A. 40A:14-118 generally authorizes adoption of police department "rules and regulations for the government of the force and for the discipline of its members." That broad policy statement does not illuminate the outside employment rule.
However, in construing another municipality's ordinance that stated police officers "shall engage in no other business, profession or occupation" unless permitted, we identified the intent to assure officers' undivided loyalty, to conserve their physical and mental strength, and to assure their availability in times of emergency. Isola v. Borough of Belmar, 34 N.J. Super. 544, 552 (App. Div. 1955). Certainly, these purposes may be implicated by an officer's involvement in purely voluntary activities. However, in Isola, supra, we did not reach the issue whether the ordinance affected unpaid or volunteer work. Instead, we struck the ordinance on other grounds.*fn3
On the other hand, when we have upheld discipline for a violation of a outside employment restriction, we have been confronted with remunerated activity. We upheld seven-day suspensions of twenty-two New Jersey State Police Troopers who were employed as truck checkers by a contractor, in violation of a State Police rule requiring troopers to "devote their entire time and attention to the service of the Department and shall not engage in any other business or calling except on written permission of the Superintendent." In re Bernaducci, 85 N.J. Super. 152, 153-54 (App. Div. 1964). Our former Supreme Court upheld a patrolman's dismissal for violating a ban on outside employment where the activity was patently for profit. Hofbauer v. Bd. of Police Comm'rs of E. Orange, 133 N.J.L. 293, 294 (Sup. Ct. 1945) (upholding dismissal of patrolman who worked part-time as a toolmaker in violation of rule requiring officers to "devote their entire time to police service engaging in no other business or occupation").
Finally, given the harsh sanction of removal that may result from violating the outside work rule, any remaining ambiguity should be resolved in the officer's favor. The regulation is not "sufficiently definite to inform those subject" that permission was required for unpaid outside work. In re Review of Admin. Promulgation of the Health Care Bd., supra, 83 N.J. at 82. We need not address the permissible scope of the power of a police department under N.J.S.A. 40A:14-118 to restrict volunteer or unpaid activities in appropriate circumstances.*fn4 The intent to exercise such authority must, in any event, be clearly set forth in the department's rules. That was not done here.
Turning to the finding Voci was not truthful, Voci argues the Internal Affairs officers' questions about his activities were ambiguous or compound in nature, and as he understood the questions, his answers were not false. Thus, he argues, the Commission's finding that he violated the truthfulness rule was erroneous. We disagree, except as to the question whether he had "ever been employed at Bare Exposures[.]" For the reasons we have already expressed, "employment" as used in the rule is not "sufficiently definite" to include unpaid work. Therefore, Voci's denial that he was employed cannot be deemed untruthful and a violation of ACPD Rule 4:5. However, the same cannot be said of his responses to the two questions that followed.
There was ample evidence to support a finding that Voci "assisted them [Bare Exposures] in any type of their operation or any operation at the club[.]" The ALJ found incredible Voci's inability to recall his activities less than three weeks before his IA interview. Unlike the word "employed," the word "assist" does not imply remuneration. There was sufficient evidence to support the conclusion that the question was clear and understood. Voci was asked if he helped the club in any aspect of its "operations." Certainly, collecting entrance fees and stamping exiting customers fell within that category. His denial was a knowing falsehood and a violation of the rule.
The evidence also supported the finding that Voci was not truthful when he denied that he "ever worked the front door or taken any money or anything of that nature while there[.]" The compound nature of the question is of no moment, because the truthful answer to any of the three subparts was yes. Voci "worked the front door" whether paid or not. He received money from John and Robert. Other activities "of that nature" included stamping John and Robert as they left.
In view of our conclusion that Voci did not violate the outside employment rule, and he made two untruthful statements, not three, we remand to the Commission to reconsider the sanction for the violations we have sustained. See Maple Hill Farms, Inc. v. Div. of N.J. Real Estate Comm'n, 67 N.J. Super. 223, 233-34 (App. Div. 1961) (remand required when single penalty imposed for two regulatory offenses, but only one is affirmed). We need not decide whether removal would have been appropriate had we affirmed all the allegations. Consequently, we do not reach Voci's arguments that his violations were not sufficiently egregious to warrant removal under our law governing progressive discipline, see In re Hermann, 192 N.J. 19, 29-38 (2007), and the sanction was inconsistent with prior decisions of the Commission, which is "charged with keeping State-government-wide standards of performance relatively consistent in disciplinary matters." Id. at 37.
Reversed and remanded. We do not retain jurisdiction.