On appeal from the New Jersey Civil Service Commission, Agency Docket No. 2010-884.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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?
Q. You don't recall whether you were there or ...