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In the Matter of Denise Capizzi

August 9, 2012

IN THE MATTER OF DENISE CAPIZZI, TOWNSHIP OF BERKELEY, DEPARTMENT OF PUBLIC SAFETY.
IN THE MATTER OFROBERT ANDREWS, BERKELEY TOWNSHIP.



On appeal from the Civil Service Commission, Docket Nos. 2007-2168 and 2011-310.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued April 24, 2012 (A-3653-09) and Argued May 22, 2012 (A-2969-10)-

Before Judges Messano, Yannotti and Kennedy.

We have consolidated these two appeals for the purpose of a single opinion. In A-3653-09, Denise Capizzi appeals from the final administrative action of the Civil Service Commission (the Commission) that removed her from the position of civilian dispatcher in the police department of the Township of Berkeley (the Township). In A-2969-10, the Township appeals from the Commission's final decision adopting the initial decision of the administrative law judge (AJL) and dismissing disciplinary charges against police lieutenant Robert Andrews for alleged sexual misconduct that involved Capizzi. The Township also appeals from the Commission's award of counsel fees to Andrews in the amount of $19,430.

I.

In June 2004, Capizzi was served with a preliminary notice of disciplinary action (PNDA), charging her with insurance fraud, misconduct, conduct unbecoming a public employee and other sufficient cause. She was suspended without pay from her position effective June 11, 2004, the date of her arrest by the Ocean County Prosecutor's Office. One month later, an amended PNDA was served and, after a hearing and pursuant to a final notice of disciplinary action (FNDA), Capizzi was suspended indefinitely pending disposition of the criminal proceedings.

Two indictments were returned against Capizzi by the Ocean County grand jury in September 2004. One alleged second-degree insurance fraud, N.J.S.A. 2C:21-4.6. A second indictment accused Capizzi of second-degree official misconduct, N.J.S.A. 2C:30-2, and involved her alleged alteration of a computer-assisted dispatch (CAD) record of an incident at a local Wawa store in February 2004. In November 2004, the Township filed a second amended PNDA against Capizzi and an amended FNDA adding a charge of official misconduct and noting the indictments.

In February 2005, the indictments were dismissed, but the Prosecutor's Office filed a complaint in the municipal court charging Capizzi with the disorderly persons offense of tampering with a public record or information, N.J.S.A. 2C:28-7(a)(3). In April 2005, the Township issued a third PNDA alleging that Capizzi had altered two CAD records, one regarding the Wawa incident and a second involving a domestic violence call.

On June 23, 2005, the municipal court judge dismissed the complaint on a defense motion. The judge concluded that although Capizzi had altered the CAD entry for the Wawa incident, the prosecutor failed to prove that her actions violated all of the elements of N.J.S.A. 2C:28-7(a)(3).

In August 2005, the Township served Capizzi with a fourth amended PNDA, charging her with: tampering with public information or records by altering two CAD entries; abuse of sick leave and bereavement time; engaging in sexual relations with police officer Timothy McNichols in a police vehicle while McNichols was on duty; engaging in inappropriate sexual conduct in the police radio room with Andrews while both were on duty; making a fraudulent telephone call to the Atlantic City Police Department regarding McNichols; making inappropriate 911 calls; harassment of co-workers; and failure to attend an employee assistance program when referred by a superior.

The Township filed a PNDA against Andrews on December 7, 2005 charging him with misconduct; incompetence, inefficiency or failure to perform his duty; conduct unbecoming a public employee; neglect of duty; other sufficient cause; and violations of the police department's rules and regulations. Andrews waived a departmental hearing on the merits and moved to dismiss the charges as untimely. The hearing officer ultimately denied that motion, and the Township filed a FNDA on March 1, 2007 terminating Andrews.*fn1

The Township held departmental disciplinary hearings on the charges against Capizzi. The hearing officer sustained the charges and recommended that Capizzi be removed from her position. On November 3, 2006, the Township issued an amended FNDA with an effective discharge date of June 11, 2004.

Capizzi and Andrews filed separate appeals and the matters were transferred to the Office of Administrative Law (OAL). During a pre-hearing conference on Andrews' case, the ALJ asked the parties to show cause why the two matters should not be consolidated. The Township objected, arguing the case against Andrews involved only one incident, while the case against Capizzi, proceeding before a different ALJ, was more complicated. The Township argued that consolidating the two cases would make both more burdensome.

The ALJ rejected the Township's arguments. He reasoned that because the charges against Andrews arose from the same factual circumstances as one of the charges against Capizzi, trying the cases separately would result in duplicative hearings on that incident. That would cause an "unwarranted expenditure of limited judicial resources" and the "potential for competing determinations [would be] enhanced." On November 27, 2007, the ALJ entered an order consolidating both cases before the ALJ trying the Capizzi matter.

On February 19, 2008, the ALJ dismissed the charge alleging Andrews violated the police department's rules and regulations, finding that it was not filed within the forty-five day period prescribed by N.J.S.A. 40A:14-147.*fn2 Hearings in the consolidated matters were held over numerous days between March 24 and June 27, 2008, with the Township proceeding first as to all charges against Capizzi except for the alleged sexual misconduct with Andrews. At the conclusion of its case, the Township withdrew three charges against Capizzi: alteration of the CAD record for the domestic violence incident; abuse of bereavement time; and harassment of co-workers. On Capizzi's motions, the ALJ also dismissed the charge of failing to comply with the employee assistance program.

After the final day of testimony, June 27, 2008, both Capizzi and Andrews moved to dismiss the charges alleging that they engaged in sexual activity in the police department's radio room while on duty. The judge granted those motions orally on the record, and, on August 21, 2009, she issued an initial decision regarding Andrew's motion, which we discuss in greater detail below. The ALJ also ordered the two cases be severed. On December 18, 2009, the Commission adopted the findings and conclusions of the ALJ in her initial decision, reversed Andrews' termination and dismissed the charges against him. The Commission awarded Andrews counsel fees pursuant to N.J.A.C. 4A:2-2.12.*fn3

On January 19, 2010, the ALJ issued an initial decision in the Capizzi matter. She concluded that Capizzi had inappropriately altered the CAD record of the Wawa incident, abused four hours of sick time, engaged in sexual relations with McNichols in his police vehicle while he was on duty, and made a fraudulent call to the Atlantic City Police Department regarding McNichols. The ALJ found insufficient evidence to support the other remaining charge -- the making of inappropriate 911 calls. The ALJ dismissed Capizzi's appeal and upheld the Township's removal of Capizzi from her position as police dispatcher. On February 25, 2010, the Commission issued its final administrative action upholding the ALJ's decision.

Before us, Capizzi contends that the Commission erred in adopting the findings of misconduct made by the administrative law judge (ALJ). Alternatively, she argues that any misconduct on her part did not warrant removal.

The Township argues that the ALJ erred by: consolidating the disciplinary charges against Capizzi and Andrews; dismissing certain charges against Andrews as time-barred; admitting certain evidence at the hearing; failing to apply a heightened standard of conduct to Andrews; and otherwise assessing the credibility of the witnesses.

We have considered these arguments in light of the record and applicable legal standards. We affirm in both appeals.

II.

"The scope of [our] review is limited. An 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 (2007) (citation omitted). "[T]he choice of accepting or rejecting testimony from witnesses resides with the administrative agency, and so long as that choice is reasonably made it is accorded deference on appeal." Campbell v. N.J. Racing Comm'n, 169 N.J. 579, 588 (2001). We accord the agency's decision "substantial deference" "even if [we] would have reached a different result in the first instance." Herrmann, supra, 192 N.J. at 28.

(A)

We first consider the Township's appeal. In October 2005, following questioning by police chief John Weinlein, Sergeant James Britton claimed that he saw Capizzi performing oral sex on Andrews in the radio room of police headquarters. The Township identified June 30, 2002 as the actual date this occurred.

In his testimony before the ALJ, Britton explained that on the night in question, he was scheduled to work as the desk sergeant from 4 p.m. until midnight. The desk sergeant was assigned to "work the desk along with the [d]ispatcher."

Andrews, at the time a sergeant, was scheduled as the "[r]oad [s]ergeant," or the patrol sergeant. However, Andrews complained of back pain and asked to "work the desk," so Britton and Andrews switched roles. Capizzi was the only dispatcher working that shift, and she and Andrews were left alone in headquarters.

At some point, Britton heard another officer trying to contact headquarters on the radio. Hearing no response, Britton called headquarters using his radio and cell phone, but also did not receive a response. Concerned that there might be a problem with the phone system, Britton returned to headquarters. When he entered the radio room, he saw Capizzi with "her head in Andrews['] lap." Britton admitted he was not certain that Capizzi was performing oral sex on Andrews. Britton became upset and "told them to knock i[t] off, get back to work and start answering the phones." Britton never told ...


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