October 4, 2012
IN THE MATTER OF MICHAEL FERRARELLA, AND DONALD HARVEY, BOROUGH OF OAKLAND.
On appeal from the New Jersey Civil Service Commission, Docket No. 2011-3464.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 19, 2012 -
Before Judges Graves, Espinosa, and Guadagno.
Michael Ferrarella appeals from a final decision of the Civil Service Commission (the Commission) that upheld his removal from his position as a police officer with the Borough of Oakland. For the reasons that follow, we affirm.
On November 24, 2009, at 9:00 p.m., Michael Schwaner met his friend Stephen Laspina for dinner at the Elm Street Bar and Grill. They stayed for two-and-one-half hours and had two beers each. They left the restaurant between 11:30 p.m. and midnight in Schwaner's car and drove to Laspina's girlfriend's home on Walnut Street. Schwaner went in with Laspina and stayed for approximately thirty minutes.
As Schwaner was leaving, his vehicle hit a parked Chrysler on Walnut Street at about 12:40 a.m. The impact was so severe that the Chrysler was pushed approximately thirty feet and both Schwaner's car, a Trailblazer, and the Chrysler were eventually declared total wrecks. In the collision, Schwaner hit his head, upper lip and nose which began to bleed. Schwaner failed to stop after hitting the Chrysler. He continued on Walnut Street and turned onto Page Drive, where he ran over a street sign, then drove up and over a private lawn. The Trailblazer sustained extensive damage including a flat tire and, as Schwaner drove, he noisily dragged debris from his vehicle. From Page Drive, Schwaner turned onto Yawpo Avenue. When he could drive no longer on the flat tire, he turned into a familiar location, the Yawpo Fire Department, where he had served as a volunteer.
Earlier that evening, Michael Ferrarella, a police officer with the Borough of Oakland, began a twelve-hour shift. He was working with Sergeant Robert O'Keefe, and Officers O'Neill, Fiore, and Donald Harvey. Ferrarella was assigned as a "float officer," and not restricted to a particular sector of Oakland. When Officer Harvey made a traffic stop in the parking lot of a local Krauszer's, Ferrarella pulled in to back him up.
From the Krauszer's lot, Ferrarella spotted a noisy vehicle with a headlight out traveling on Yawpo Avenue, and told Harvey he was going to investigate. As Ferrarella approached the vehicle, it turned into the Yawpo firehouse parking lot. When Schwaner got out, Ferrarella recognized him as both had served as volunteer firemen in Oakland. Schwaner told Ferrarella that he had hit something while coming from Walnut Street. Ferrarella noticed Schwaner's injuries and offered to call an ambulance but Schwaner refused medical attention. Ferrarella let Schwaner into the firehouse so he could call someone to pick him up as his car was not drivable. Schwaner called Laspina.
Ferrarella then left the firehouse and drove back to Krauszer's to speak with Harvey. Ferrarella told Harvey that he needed his help and to follow him back to the firehouse. Harvey also knew Schwaner from the fire department and they worked together in a landscaping business. Ferrarella told Harvey that Schwaner hit something and was in the firehouse. As Ferrarella was telling Harvey about Schwaner, a call came in from the police dispatcher at 12:48 a.m.,*fn1 directing Harvey to Walnut Street where a resident reported a car crash. When Ferrarella heard the transmission, he told Harvey, "Shit, I hope that's not it," referring to the car Schwaner hit. Two minutes later, the dispatcher broadcast that the accident was a hit-and-run. Before Harvey left the firehouse, Ferrarella asked him to check along Yawpo Avenue to see if there was any indication that Schwaner hit anything.
When Harvey arrived at the scene, he transmitted over the radio, "We're gonna be looking for a car with quite a bit of damage. It moved this vehicle a good thirty feet." At 12:53 a.m. Harvey radioed that the hit-and-run vehicle went up Walnut Street and turned left on Page Drive. He said the car had a flat tire and was making "quite a bit of noise."
As Harvey waited for a tow truck for the Chrysler, he was joined by Officer Fiore and Sergeant O'Keefe who began to search for the hit-and-run vehicle. At 12:59 a.m., Fiore radioed, "Looks like they took out a sign up here on Page also when they made the left turn . . . I got scrape marks on the ground that I'm going to be following." O'Keefe then radioed that he would join Fiore.
As the officers followed a trail of tire and debris marks left by Schwaner's vehicle that would lead them to the Yawpo firehouse, Ferrarella called O'Keefe on the phone and told him he was at the firehouse with the person involved in the accident. O'Keefe, who was already on Yawpo Avenue, proceeded directly to the firehouse and arrived approximately thirty seconds after Ferrarella's call. Schwaner was already gone.
After Schwaner called Laspina, Ferrarella allowed him to leave in a car driven by Laspina's girlfriend, Sara Higgins. Ferrarella told O'Keefe that Schwaner was really sick and a friend who was a nurse picked him up to take him to the hospital. Higgins and Laspina, who have no medical training, drove Schwaner to his mother's house. At 1:03 a.m., Ferrarella radioed to the dispatcher that he located the other vehicle involved in the accident.
The Oakland Internal Affairs Department (OIA) did a thorough investigation and prepared a lengthy report sustaining charges against both Ferrarella and Harvey. As to Ferrarella, OIA determined that he lied in written reports relating to the incident and during a follow-up administrative interview. He was charged with incompetency, inefficiency, or failure to perform duties, N.J.A.C. 4A:2-2.3(a)(1), conduct unbecoming a public employee, N.J.A.C. 4A:2-2.3(a)(6), neglect of duty, N.J.A.C. 4A:2-2.3(a)(7), and other sufficient cause, N.J.A.C. 4A:2-2.3(a)(12). Both officers were removed from their positions as police officers and they appealed.
The administrative law judge (ALJ) sustained the charges against both officers but determined that they should not be terminated. The ALJ recommended that, instead of removal, Ferrarella be suspended for 180 days and Harvey suspended for 120 days.
The Commission accepted and adopted the ALJ's findings of fact as to both officers but increased Harvey's suspension to six months and determined that removal was justified as to Ferrarella. The Commission noted:
Ferrarella's delay in reporting that Schwaner and his damaged vehicle were at the firehouse caused his fellow officers to spend extra time looking for a phantom car. He also permitted Schwaner, who suffered a bloody nose and possibly hit his head, to be left alone at the firehouse and then allowed him to leave with someone who had no medical training. Further, Ferrarella misrepresented the facts in the report requested by Douglas Eldridge, which is a public record, trying to do a favor for a fellow volunteer firefighter. Ferrarella's inappropriate behavior in this case cannot be tolerated and is worthy of severe sanction.
In justifying the disparate sanctions of the two officers, the Commission distinguished Harvey's conduct from Ferrarella's, finding that "[Harvey], unlike Ferrarella, tried to rectify his error by advising [Lt.] Christian Eldridge that he had misspoken in his first statement and provided a truthful account." The Commission also agreed with the ALJ's conclusion that
[Harvey's] testimony that he was waiting to hear from Ferrarella whether Schwaner was involved to be believable, in part because he was the newest officer on the force that evening, had a close, trusting relationship with Ferrarella, and relied on Ferrarella to give him direction as to how to proceed.
On appeal, Ferrarella argues that the Commission's decision is arbitrary and capricious, that he was entitled to progressive discipline, and the ALJ improperly excluded evidence that would have undermined the Borough's rationale for termination.
After carefully reviewing the record, briefs, and arguments of counsel, we are satisfied that none of these arguments have merit.
The scope of our review in an appeal from a final decision of an administrative agency is limited. Circus Liquors, Inc. v. Governing Body of Middletown Twp., 199 N.J. 1, 9 (2009). In the absence of "a clear showing that it is arbitrary, capricious, or unreasonable, or that it lacks fair support in the record," the decision will be sustained. In re Herrmann, 192 N.J. 19, 27-28 (2007); see also, Brady v. Bd. of Review, 152 N.J. 197, 210 (1997); Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). This deferential standard "is not limited to whether a violation warranting discipline has been proven; . . . [it] 'applies to the review of disciplinary sanctions as well.'" In the Matter of Stallworth, 208 N.J. 182, 195 (2011)(quoting Herrmann, supra, 192 N.J. at 28).
Here, the Commission adopted the factual findings of the ALJ, which were amply supported by the evidence, but differed on the appropriate discipline to be imposed. Both the Commission and the ALJ recognized the seriousness of Ferrarella's conduct. The ALJ felt progressive discipline was appropriate given Ferrarella's "unblemished record." While the ALJ noted the position of the Oakland Chief of Police, Edward Kasper, who supported Ferrarella's termination, she appeared to give it little weight. Kasper testified that the credibility and honesty of police officers is essential and the officers here deceived their fellow squad mates by not indicating that they had the vehicle and the person involved in the accident while the police were looking for the hit-and-run perpetrator.
While the ALJ observed "there is precedent both ways as to whether lying should be considered grounds for termination," she rejected Kasper's position:
However, I think that [Ferrarella] was trying to do a fellow firefighter a favor and did not think out the severe consequences of his actions. While I understand the point of view that trust is important within a police department and for the public, I do not necessarily ascribe to the position that an officer cannot be rehabilitated and regain the trust of his fellow officers and the public. Considering the time and money that was expended in hiring, training, and educating these two officers, I believe that a better solution to the case would be to impose a stiff penalty to acknowledge the severity of the infraction, but to return the officers to the force following their suspensions.
In rejecting the recommendations of the ALJ, the Commission found that Ferrarella's failure to accurately report the events surrounding a hit-and-run accident and his attempt to shield a fellow firefighter would clearly be the type of actions which would tend to destroy public respect in the delivery of governmental services. [Ferrarella's] falsification of a public record and the fact that he lied to hide what he clearly knew was improper conduct is unacceptable.
The Commission considered the factors relevant to whether progressive discipline was warranted and concluded that the nature of Ferrarella's conduct was sufficiently egregious to warrant removal. Ferrarella delayed reporting that Schwaner and his damaged vehicle were at the Yawpo firehouse, causing his fellow officers to search for a phantom hit-and-run vehicle. He also allowed Schwaner, who he suspected had been involved in the accident on Walnut Street, to leave. In a further attempt to conceal his misconduct, Ferrarella made misrepresentations in his report of the incident. His misconduct was not trivial, isolated or inconsequential; it was egregious and continuing.
Our Supreme Court has held, "some disciplinary infractions are so serious that removal is appropriate notwithstanding a largely unblemished prior record." In re Carter, 191 N.J. 474, 484 (2007)(citing Rawlings v. Police Dep't of Jersey City, 133 N.J. 182, 197-98 (1993) (upholding the dismissal of a police officer who refused drug screening as "fairly proportionate" to the offense). "[T]he question for the courts is whether such punishment is so disproportionate to the offense, in the light of all the circumstances, as to be shocking to one's sense of fairness." Ibid. (internal quotations omitted). Further, when the discipline of police officers is involved, "public safety concerns may also bear upon the propriety of the dismissal sanction." Id. at 485.
In reviewing the Commission's actions, we defer "to an agency's expertise and superior knowledge of a particular field," Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992). We recognize that "the significance or impact of [an employee's] prior disciplinary record [is] a subject particularly within the expertise of the Commission." Stallworth, supra, 208 N.J. at 200. Therefore, we do not ordinarily overturn such a decision "in the absence of a showing that it was arbitrary, capricious or unreasonable, or that it lacked fair support in the evidence." Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963); see also Stallworth, supra, 208 N.J. at 194.
Here, the Commission applied its expertise in evaluating the conduct of police officers in determining the appropriate discipline for Ferrarella. The findings of fact it adopted were amply supported by the evidence. The Commission's determination that Ferrarella's conduct was egregious and indicative of poor judgment incompatible with his status as a police officer was not arbitrary, capricious or unreasonable. We are satisfied that under the circumstances presented, the punishment of removal was not "so disproportionate to the offense . . . as to be shocking to one's sense of fairness."
Ferrarella's remaining arguments lack sufficient merit to warrant any further discussion. R. 2:11-3(e)(1)(D) and (E).