On appeal from the New Jersey Civil Service Commission, Docket Nos. 2010-1624 and 2010-1625.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 14, 2012
Before Judges Waugh and St. John.
Appellant, City of Camden, appeals from the May 26, 2010 final decision by the Civil Service Commission (Commission), dismissing disciplinary charges imposed by Camden against respondents Christopher Frucci and Daniel Marcano, and awarding them back pay and counsel fees. Marcano filed a cross-appeal of the order contesting a reduction in his back pay award. Following our review of the arguments advanced on appeal, in light of the record and applicable law, we affirm.
The record discloses the following facts and procedural history leading to the administrative determination under review.
Frucci and Marcano are officers with the Camden police department. In late 2006, both were assigned to the telephone reporting unit (TRU) located in the communications area of the county jail. Officers assigned to TRU are responsible for taking calls from the public involving complaints that do not require the dispatch of a patrol car. Assignment to TRU is temporary and considered light duty. Officers working the TRU do not have to remain in the communications area at all times. They are allowed to go to the police department gym, eating area, and leave to get food as long as they are available to respond to issues as they may arise.
In March 2007, Marcano and Frucci were issued preliminary notices of disciplinary action, charging them with several violations of the Camden Police Disciplinary Code during the time they were assigned to TRU. After departmental hearings, the charges against them were sustained and their terminations were recommended. Marcano and Frucci both appealed to the Commission. Their appeals were transferred to the Office of Administrative Law, where the appeals were consolidated.
Frucci and Marcano disputed the charges against them and additionally alleged they were given permission to leave on several occasions by dispatch sergeants who worked in the communications area but who were not their supervisors. Thirteen days of hearings were conducted before an Administrative Law Judge (ALJ). At these hearings, several witnesses testified, including Detective Ruiz, Officer Rodriguez, and Officer Carr.
Detective Ruiz, an investigator in the Internal Affairs Division, testified that he viewed over 140 hours of video surveillance and played DVDs in court to illustrate his conclusions that Frucci and Marcano had on specified dates left their shifts early. Ruiz also had the dispatch sergeants fill out a questionnaire in which all answered that they had not given Marcano or Frucci permission to leave early. However, they did not observe either leaving prior to the end of his scheduled shift.
Officer Rodriguez, who was also assigned to TRU, testified that during TRU duty he never had to clock in or clock out. He further stated that he would leave before the end of his shift and that some dispatch sergeants would tell him to leave a couple of hours early. Officer Carr, who also worked in the TRU, similarly testified that dispatch sergeants would tell him to leave early.
The day after Officer Carr testified, he was approached by Sergeant Ortiz, Camden's Internal Affairs representative, and was told to report to Internal Affairs. Carr reported to Internal Affairs the following day and unbeknownst to Ortiz, Carr recorded their conversation, which was later transcribed and admitted into evidence. During the conversation, which occurred on or around July 31 2008, Ortiz made several statements that suggested that Camden knew that dispatch sergeants were giving TRU officers permission to leave early. At a preliminary hearing on August 7, 2008, Frucci's counsel disclosed that Ortiz was a private client of the law firm that was representing Frucci.
The ALJ issued an initial decision on December 5, 2008, recommending that Marcano and Frucci's removal from the Camden police department be reversed. The ALJ concluded that Camden had not carried its evidentiary burden. He stated that "[n]o preponderating evidence exist[ed] to show that [Marcano and Frucci] arrived late, left their shifts before completion, or failed to appear at all for work except in accord with the policy of extreme latitude de facto ...