On appeal from the Civil Service Commission, CSC Docket No. 20103611.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued Telephonically September 5, 2012 -
Before Judges Alvarez, Nugent and Ostrer.
A.M. appeals from the June 1, 2011 final decision of the Civil Service Commission (Commission) terminating his employment as a Senior Police Officer with the Department of Human Services (Department). The Commission adopted the findings of fact rendered in the initial decision of the Administrative Law Judge (ALJ), but rejected the ALJ's recommendation of a six-month suspension, which recommendation modified the appointing authority's sanction of outright removal of A.M. from his position. Instead, the Commission reinstated the removal from office. We affirm.
On August 30, 2009, A.M.'s wife, T.M., called the Bridgeton Police Department to report that A.M. had punched and choked her. Photographs depicting bruising around her eye, neck, head, arm, and throat were introduced into evidence during the administrative law hearing.
The ALJ disbelieved A.M.'s testimony that he merely pushed his wife three times, and that the bruising could have been caused by his act of shoving her onto the floor and then grabbing her arm to lift her off the floor. A.M. also testified that the bruising to his wife's face may have resulted from a fall after tripping over a computer cord.
The ALJ noted it was unlikely that A.M.'s wife would have accidentally sustained bruising to the face and a black eye, particularly because she said she was punched, a more likely explanation for the injuries. Since the ALJ believed A.M.'s wife that A.M. punched and choked her, he sustained the charge of conduct unbecoming a public employee.
A.M. was evaluated by Dr. Dennis Sandrock, a psychologist, who regularly examines new recruits and measures employee fitness for duty on behalf of the Department. He administered two psychological tests to A.M., reviewed discovery, listened to tapes of phone calls, and interviewed him.
Dr. Sandrock opined that a "pattern of serious injury and alcoholism" permeated A.M.'s marriage. He considered it to be dysfunctional, with a high risk of harm, and observed that A.M. took no responsibility for the assault upon his wife. At least one other domestic violence incident between A.M. and his wife involving alcohol had occurred years prior. Although Dr. Sandrock acknowledged that A.M.'s assessments in 1993 and 2003 were unremarkable, that he had an unblemished employment history and no apparent mental health issues, he concluded that A.M. was unfit for duty as a result of possible alcohol abuse as well as domestic violence.
Gary Glass, M.D., A.M.'s expert, who had evaluated over 9000 police officers regarding fitness for duty, and worked for police departments and the FBI for more than thirty years, found that A.M. did not suffer from any psychiatric disturbance or personality disorder which interfered with his ability to function as a police officer. Dr. Glass did not agree that the domestic violence incident reflected upon A.M.'s fitness for duty because A.M. had no history of problems on the job. In his view, A.M. would be fit for duty if he underwent individual psychotherapy or marital counseling for a minimum of four to siX weeks, requalified with his weapon, and worked with another officer for some period of time. Dr. Glass saw no evidence of substance abuse, although he acknowledged that when the first domestic violence incident occurred in 1990, A.M. was too intoxicated to be admitted to the county jail. He did not consider two incidents in twenty-five years to amount to a pattern.
Consequently, in reliance on Dr. Glass's expert opinion, and because A.M. committed the assault while off duty and his employment history was unblemished, the ALJ found A.M. fit to return to duty after a six-month suspension. The Commission, after consideration of the parties' exceptions to the ALJ's initial decision, and de novo review of the record, concluded that removal was required. Although it adopted the ALJ's findings of fact and conclusions regarding the expert witnesses, the Commission nonetheless found the proper penalty, given the egregious nature of the conduct, to be removal. The Commission stated:
[E]ven when a law enforcement officer does not possess a prior disciplinary record after many unblemished years of employment, the seriousness of an offense may nevertheless warrant the penalty of removal where it is likely to undermine the public trust. The Commission emphasizes that a law enforcement officer is held to a higher standard than a civilian public employee. . . . The appellant's act of domestic violence in beating his wife is clearly an egregious act which warrants the penalty of removal. . . . [T]he Commission does not agree with the ALJ that the fact that the incident did not occur at work or while on duty should serve as a mitigating factor. . . . The appellant was a law enforcement officer sworn to uphold the law and help prevent such actions as those he committed.
His actions clearly undermine the public trust and make it more difficult for other law enforcement officers to perform their duties. Accordingly, it is clear ...