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In the Matter of Denise Capizzi

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 anyone what happened, explaining "I work with these people. I expect to continue working with these people, and it would not be conducive to good relations."

On cross-examination, Britton was confronted with a record documenting that he was the desk sergeant for the night of June 30, 2002. Another document showed that Britton was answering incoming calls from approximately 4:25 p.m. through approximately 6:30 p.m., the time frame Britton claimed he was patrolling the roads and unable to reach the dispatcher. The record also showed that other officers were at headquarters during the time Britton claimed that Andrews and Capizzi were alone.

Capizzi's fellow dispatcher Debra Courtney testified that, in 2002, Capizzi confided that "she got caught doing something, by someone," but Courtney "did not know who or when." Courtney said that Capizzi told her, "'I got busted[,]'" but refused to say more. Courtney "dropped it and it wasn't until years later that [she] started to piece it together." Capizzi never identified the other individual involved or whether it concerned sexual activity. Courtney admitted that in the prior statements she supplied to the Township, she said Britton caught Capizzi because "[t]hat was the buzz around the entire building."

The ALJ found that Britton was "not a credible witness." She noted that Britton "was unable to tell what, if any, sexual act was taking place when he walked into the radio room." The ALJ also noted that Courtney "merely recited rumors about the alleged incident, and referenced a nonspecific conversation with Capizzi." She dismissed the charges against Andrews, and the Commission adopted the ALJ's findings and conclusions.

The Township claims that the consolidation of the two cases was contrary to the Administrative Code and prejudicial because its ability to cross-examine Capizzi was limited, the issues and charges against Capizzi were different from those against Andrews, the consolidation deprived it of "the proper ability to present proofs and cross-examine" and increased the amount of counsel fees the Township was required to pay. The argument is entirely unpersuasive.

The New Jersey Administrative Code permits the judge sua sponte to "consolidate a case . . . with any other contested case involving common questions of fact or law between identical parties or between any party to the filed case and any other person, entity or agency." N.J.A.C. 1:1-17.1(a). When deciding a motion to consolidate, a judge shall consider:

1. The identity of parties in each of the matters;

2. The nature of all the questions of fact and law respectively involved;

3. To the extent that common questions of fact and law are involved, the saving in time, expense, duplication and inconsistency which will be realized from hearing the matters together and whether such issues can be thoroughly, competently, and fully tried and adjudicated together . . . ;

4. To the extent that dissimilar questions of fact or law are present, the danger of confusion, delay or undue prejudice to any party;

5. The advisability generally of disposing of all aspects of the controversy in a single proceeding; and

6. Other matters appropriate to a prompt and fair resolution of the issues, including whether a case still pending in an agency is contested or is ripe to be declared contested. [N.J.A.C. 1:1-17.3(a).]

In this case, the ALJ appropriately considered these factors before ordering consolidation. Furthermore, the Township fails to explain with any specificity how it was prejudiced in its questioning of Capizzi or any other witness in the case.

We also reject the argument that the Township was prejudiced financially because Andrews' attorney unnecessarily attended hearings wherein witnesses testified regarding events unrelated to the charges against his client. This may be true to some degree, but it is equally true that some witnesses whose testimony was critical to the charges against Capizzi provided background information that was relevant to the charges against Andrews. Weinlein is a good example.

The Township also claims that the ALJ erred by permitting Britton to be cross-examined regarding his history of disciplinary infractions. The following colloquy frames the issue:

Q: Did you have to take a Psychological exam at any point?

A: When I was first hired in 1988.

Q: Okay.

A: Then I was notified in April 2003, that the Chief wanted me to see a psychologist.

Q: Okay. And you saw him?

A: Yes, sir.

Q: And have you seen one since?

A: I've seen a forensic psychiatrist and at least two psychologists.

Q: So, let me just ask you, in 2003 -- I guess prior to this exam, your gun was taken away. Is that correct?

A: I believe it was April 2003.

Q: And how long was your gun taken away from you?

A: I didn't get it back for almost a year. Q: Almost a year. And that was based on a complaint that . . . Ms. Capizzi had made[?] A: I have no idea.

Q: None whatsoever?

A: No, sir.

Q: Do you recall exactly when you got your gun back?

A: No, sir.

Q: And during that time that your gun was taken away, you came into work with a banana in your holster.

A: At one point, I did have a banana in my holster. Yes, sir.

Q: You came in with a water pistol at another time, too.

A: Yes, sir.

In contested matters in the OAL, "[e]vidence rulings shall be made to promote fundamental principles of fairness and justice and to aid in the ascertainment of truth." N.J.A.C. 1:1-15.1(b). N.J.A.C. 1:1-15.1(c) provides:

Parties in contested cases shall not be bound by statutory or common law rules of evidence or any formally adopted in the New Jersey Rules of Evidence except as specifically provided in these rules. All relevant evidence is admissible except as otherwise provided herein. A judge may, in his or her discretion, exclude any evidence if its probative value is substantially outweighed by the risk that its admission will either:

1. Necessitate undue consumption of time; or

2. Create substantial danger of undue prejudice or confusion.

In this case, the limited evidence regarding Britton's prior disciplinary problems certainly did not violate "fundamental principles of fairness and justice."

The ALJ determined Britton was not credible and cited the documentary evidence that impeached his claims. The Township argues that the ALJ erred in this regard because Courtney testified that Capizzi admitted to misconduct with Andrews. However, this contention asks us to exceed the proper limits of our review. See Campbell, supra, 169 N.J. at 588. We will not substitute our judgment of Britton's credibility for that of the ALJ who had the opportunity to see the witness. Additionally, as noted, the ALJ determined Courtney's testimony was unreliable and lacked specificity.

Because we affirm the Commission's order dismissing the charges against Andrews based upon insufficient evidence, we need not consider the Township's argument that the ALJ erred in dismissing the specific charge that Andrews violated departmental rules and regulations because it was untimely. To the extent we have not specifically addressed the other arguments made by the Township, they lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Accordingly, in A-2969-10, we affirm the final agency decisions under review.

(B)

We turn our attention to Capizzi's appeal and limit our discussion to the evidence as it related solely to those charges sustained by the Commission.

Capizzi was hired by the Township in February 2002 as a police dispatcher and was not cited for any disciplinary infractions until June 2004. In 2003, she separated from her husband and began an affair with McNichols. Capizzi denied ever engaging in sexual relations with McNichols while on duty or in his patrol car.

However, during cross-examination Capizzi acknowledged that she first became intimate with McNichols, "to an extent," when he picked her up in his patrol car. Their affair continued, and after the "first week or two," they would "meet at [Capizzi's] house." McNichols was on-duty, in uniform and drove the patrol car to her home. Capizzi also acknowledged having sexual relations with McNichols at Island Beach State Park.

In April 2004, the affair ended. McNichols complained to his lieutenant that Capizzi was harassing him on the job, and both McNichols and Capizzi were cautioned that their personal relationship should not impact their work. Capizzi believed she "was being harassed once the Department found out about [her] relationship with [McNichols] and nothing was being done to [McNichols]." On the advice of her father, a retired police detective, Capizzi wrote a letter to the Governor's Office detailing the dates of her visits to Island Beach State Park with McNichols and their sexual relations on the helipad at the Governor's summer residence located in the Park. Capizzi also filed a complaint against McNichols with the Ocean County Prosecutor's Office and with the internal affairs division of the police department.

Although the prosecutor's office declined to investigate, the police department did. In statements taken during the course of that investigation, both Capizzi and McNichols admitted having engaged in a consensual sexual relationship that included sexual activity while McNichols was on duty. McNichols admitted during the investigation that he and Capizzi engaged in sexual intercourse in his patrol car while he was on duty.

As part of the investigation, Capizzi provided internal affairs with eleven audiotapes of conversations she had with McNichols. In one such conversation, on February 21, 2004, Capizzi told McNichols that she had taken her daughter to the mall on a day when she had called in sick, explaining that she "just wasn't in the mood" to work that day.

On May 14, 2004, McNichols was in Atlantic City with his wife and her family celebrating his wife's graduation from college. Capizzi claimed that, at approximately 2:00 a.m., she received an anonymous telephone call from a male caller who told her that McNichols was in Atlantic City drinking heavily and extremely upset. She had not spoken with McNichols since April. Capizzi's father suggested that she call the Atlantic City Police Department. Capizzi called and reported that McNichols, her ex-boyfriend and a police officer, had called her while drinking and depressed, and that he had his off-duty gun at an Atlantic City casino. She provided a physical description of McNichols and a license plate number of the car he would likely be driving.

The Atlantic City police telephoned the Township police department regarding the call. Weinlein testified that the department confirmed McNichols was safe and then investigated who had made the call. Eventually, it was determined that Capizzi had made the false telephone call to Atlantic City. Weinlein testified that the call created a potentially very dangerous situation.

The evidence regarding the CAD incident revealed that shortly after midnight on February 21, 2004, Township police officers Scott Selby and John Legg were buying coffee at a Wawa convenience store on Route 9. They heard the cashier yell out and observed Capizzi lying on the floor. The officers initially called for first aid but ultimately canceled that request when they determined Capizzi was drunk and not in need of medical attention. Selby gave Capizzi a ride home.

The CAD system made a digital record of the call. The department's protocol for supplementing or correcting CAD entries required that the operator enter the date of the change, his or her operator number and the reason for the change. Capizzi would have received training on this policy during her orientation.

On February 21, 2004, Sergeant Karen DiMichele, who supervised the dispatchers, printed a copy of the CAD entry relating to the Wawa incident. She did so because she believed Capizzi would attempt to change the entry since it reflected badly upon her.

Capizzi admitted that she altered the CAD record order to avoid people "looking into [her] personal business." She also claimed the entry was erroneous because she was not drunk. She further admitted that she was embarrassed and humiliated by the description in the call log. Capizzi acknowledged that she did not enter her operator number when amending the record. However, she claimed she did not know she was required to do so and believed that the digital record would clearly show that she had made the change.

Capizzi further testified that, on February 22, 2004, just before she started her shift, she called Gail McCarthy, the Township's supervisor of communications and computer system manager, at her home. Capizzi explained the situation, and McCarthy told her she could amend the record. However, McCarthy testified that she was in Italy and did not return home until late in the day on February 22. She did not recall speaking with Capizzi.

In May 2004, DiMichele heard that the CAD record had been altered, so she printed a copy of the altered record and brought both the original and the altered version to Weinlein's attention. Weinlein directed McCarthy to investigate. McCarthy determined that Capizzi had altered the record to eliminate all references to her intoxication and she being the subject of the call. Weinlein's report to the prosecutor's office led to Capizzi's indictment on these charges.

The ALJ concluded that Capizzi admitted committing certain acts with McNichols in the police car, "includ[ing] kissing and touching," that "constituted 'sexual relations to a degree but not intercourse.'" The ALJ also found that Capizzi "admitted making the call to Atlantic City," and provided "false information regarding McNichols." The call "precipitated action by two police departments . . . causing a waste of both departments' time and resources." The ALJ also noted that Capizzi admitted changing the CAD entry. She concluded that "[a] review of the record does not bear out [Capizzi's] contention that she received permission from McCarthy." Lastly, based upon the taped conversation with McNichols, the ALJ found that Capizzi had misused four hours of sick time.

Concluding that "[o]f the four charges upheld in th[e] matter, three involve[d] serious infractions warranting major disciplinary action[,]" the ALJ ordered Capizzi's appeal dismissed and upheld the penalty imposed. The Commission "accepted and adopted" the ALJ's findings of fact and conclusions, dismissed Capizzi's appeal and upheld the penalty of removal.

Capizzi contends the record did not support findings that she engaged in sexual activities with McNichols in the police vehicle, or she violated departmental policy by altering the CAD entry of the Wawa incident, or her phone call to the Atlantic City Police Department was "fraudulent." The argument lacks sufficient merit to warrant extensive discussion in this opinion. R. 2:11-3(e)(1)(E). We add only the following.

Although Capizzi denied engaging in sexual intercourse or oral sex with McNichols in his patrol car, she admitted that she engaged in sexual relations with McNichols while he was on duty, including unspecified sexual activity with him in his patrol car. McNichols' admission that he engaged in sexual intercourse with Capizzi while on duty in his patrol vehicle was a significant admission against interest. Regarding the CAD entry, the Commission was entitled to disregard Capizzi's self-serving claims that she secured McCarthy's approval or that she was unaware she was violating departmental policy by altering the record. Finally, there was substantial credible evidence that Capizzi made a fraudulent telephone call to the Atlantic City Police Department. Virtually all of the information Capizzi gave to the police was inaccurate, and the ALJ specifically found that Capizzi's explanation for the call, that it was made after she received an anonymous phone call, lacked credibility.

Alternatively Capizzi argues that her misconduct did not warrant removal from office because of the lack of any prior disciplinary record. We disagree.

A reviewing court may "alter a sanction imposed by an administrative agency only 'when necessary to bring the agency's action into conformity with its delegated authority. The Court has no power to act independently as an administrative tribunal or to substitute its judgment for that of the agency.'" Hermann, supra, 192 N.J. at 28 (quoting In re Polk, 90 N.J. 550, 578 (1982)). "[W]hen reviewing administrative sanctions, the test . . . is whether such punishment is so disproportionate to the offense, in light of all the circumstances, as to be shocking to one's sense of fairness." Id. at 28-29 (quoting Polk, supra, 90 N.J. at 578) (internal quotation marks omitted). Moreover, an agency's choice of discipline "is made weightier when, as in this instance, it is the penalty imposed by the appointing authority and affirmed by the ALJ." Herrmann, supra, 192 N.J. at 36.

"Our appellate courts . . . have upheld dismissal of employees, without regard to whether the employees have had substantial past disciplinary records, for engaging in conduct that is unbecoming to the position." Herrmann, supra, 192 N.J. at 34. As the Court recently explained:

[P]rogressive discipline is not "a fixed and immutable rule to be followed without question" because "some disciplinary infractions are so serious that removal is appropriate notwithstanding a largely unblemished prior record." "Thus, progressive discipline has been bypassed when an employee engages in severe misconduct, especially when the employee's position involves public safety and the misconduct causes risk of harm to persons or property." [In re Stallworth, 208 N.J. 182, 196-97 (2011) (emphasis added) (citations omitted).]

Capizzi's conduct was sufficiently egregious and unbecoming to her office so as to warrant removal despite a lack of prior disciplinary action.

Affirmed in A-3663-09T1 and A-2969-10T1.


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