Opinion
DOCKET NO. A-0999-11T1
02-26-2013
IN THE MATTER OF TROOPER KEVIN HUSBAND BADGE NO. 6506.
Deana L. Walsh argued the cause for appellant Kevin Husband (Chance & McCann, attorneys; Ms. Walsh, on the briefs). V. Nicole Langfitt, Deputy Attorney General, argued the cause for respondent New Jersey Division of State Police (Jeffrey S. Chiesa, Attorney General, attorney; Ms. Langfitt, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Alvarez, Waugh and St. John.
On appeal from the New Jersey Civil Service Commission, Docket No. CSC-2008-0481.
Deana L. Walsh argued the cause for appellant Kevin Husband (Chance & McCann, attorneys; Ms. Walsh, on the briefs).
V. Nicole Langfitt, Deputy Attorney General, argued the cause for respondent New Jersey Division of State Police (Jeffrey S. Chiesa, Attorney General, attorney; Ms. Langfitt, on the brief). PER CURIAM
Appellant New Jersey State Trooper Kevin Husband appeals from the October 4, 2011 final decision of Superintendent Joseph R. Fuentes sustaining charges against him for use of excessive force, discrediting the New Jersey Division of State Police (Division), and making a false or misleading official report. Following our review of the arguments advanced on appeal, in light of the record and applicable law, we affirm.
I.
The record discloses the following facts and procedural history leading to the administrative determination under review.
On July 5, 2008, state troopers where dispatched to a residence in Upper Deerfield Township. Upon arriving at the residence, yelling and fighting could be heard. Husband and five other troopers entered the residence and notified two juveniles, D.L. and T.G., that they were under arrest. D.L. and T.G. were uncooperative and resisted arrest. After a brief struggle, D.L. was subdued, arrested, handcuffed, and searched. Trooper Mott then escorted D.L. from the residence to a nearby troop car.
At some point, D.L. was sprayed with oleoresin capsicum(OC) by Husband. D.L. alleged that he was sprayed by Husband while he was restrained and sitting in the backseat of a troop car. In his July 23, 2008, investigative report, Husband maintained that "[w]hile escorting [D.L] out of the residence and to the troop car he again became disorderly by pulling away from me and attempting to damage the troop car. Chemical force was used to subdue [D.L.]. [D.L] was then secured in the rear of troop car 216 and transported to the Bridgeton Station." An investigation was undertaken and it was revealed that, unbeknownst to Husband, a Mobil Video Recording (the recording) activated and recorded D.L.'s travel from the house to the troop car. The recording clearly shows that Trooper Mott, not Husband, escorted D.L. to the troop car.
Oleoresin capsicum is commonly referred to as pepper spray.
Thereafter, in an interview with a detective from the Internal Affairs Bureau, Husband's version of events changed. He stated:
We exited the house. I would have to say Trooper Mott was maybe 5 to 6 feet in front of me. . . . When Trooper Mott got to the car he let go of [D.L.] and went to open the door. At this time [D.L.] turned and acted as he was going to run or like come towards me. I really didn't know what he was doing. But like I stated, he was maybe 5 or 6 feet away from me. At that time I pulled my OC and I gave him one quick burst . . . which turned him back towards the car. Mott got his hands back on him, and he was placed in the car, and [T.G.] was placed in right after.
The Division filed three disciplinary charges against Husband for violation of: (1) Article IV, Section 3.b, of the Rules and Regulations of the Division which prohibit an officer from willfully disobeying lawful verbal or written orders and Standard Operating Procedure B-22, Section I, Paragraph C; (2) Article IV, Section 2a which provides "[n]o member shall: act or behave in an official capacity to the personal discredit of the member or to the discredit of the division[;]" and (3) Article V, Section 16 which states: "No member shall knowingly, make false or misleading official reports, or knowingly enter or cause to be entered in any Division books or records, any inaccurate, false, improper or misleading information or matter."
At a hearing before an Administrative Law Judge (ALJ), documentary evidence, testimonial evidence, and the recording were all submitted. Trooper Mott, who escorted D.L. to the car, testified that he did not observe what occurred. The recording of the event did not conclusively depict what transpired. However, the recording captured Husband stating, "I juiced him in the back of the car with some go juice."
The ALJ found three violations, that Husband "used excessive force, that he acted to his and the Division's discredit and that he knowingly provided false and misleading material information in his report of the evidence." The ALJ recommended a suspension of sixty days for each violation to run concurrently.
Husband filed exceptions asking that all charges be dismissed. The Superintendent adopted, but modified the ALJ's finding of facts. Specifically, the Superintendent modified the ALJ's interpretation of the recording, emphasizing "that while what happened was not clear, it is clear that neither of the versions of events described by Trooper Husband are true." The Superintendent issued the final agency decision sustaining the charges against Husband. The Superintendent then imposed a suspension of 120 days to be served concurrently for charges one and two, and a suspension of sixty days to be served consecutively for charge three.
This appeal ensued.
II.
Established precedents guide our task on appeal. Appellate review of an administrative agency decision is limited. See In re Herrmann, 192 N.J. 19, 27 (2007). A strong presumption of reasonableness attaches to the Superintendent's decision. In re Carroll, 339 N.J. Super. 429, 437 (App. Div.), certif. denied, 170 N.J. 85 (2001). The burden is on appellant in his appeal to demonstrate grounds for reversal. McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 563 (App. Div. 2002); see also Bowden v. Bayside State Prison, 268 N.J. Super. 301, 304 (App. Div. 1993) (holding that "[t]he burden of showing the agency's action was arbitrary, unreasonable, or capricious rests upon the appellant"), certif. denied, 135 N.J. 469 (1994).
"Appellate courts ordinarily accord deference to final agency actions, reversing those actions if they are 'arbitrary, capricious or unreasonable or [if the action] is not supported by substantial credible evidence in the record as a whole.'" N.J. Soc'y for the Prev. of Cruelty to Animals v. N.J. Dep't of Agric., 196 N.J. 366, 384-85 (2008) (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980)) (alteration in original). Under the arbitrary, capricious, and unreasonable standard, our scope of review is guided by three major inquiries: (l) whether the agency's decision conforms with relevant law; (2) whether the decision is supported by substantial credible evidence in the record; and (3) whether in applying the law to the facts, the administrative agency clearly erred in reaching its conclusion. In re Stallworth, 208 N.J. 182, 194 (2011). When an agency decision satisfies such criteria, we accord substantial deference to the agency's fact-finding and legal conclusions, while acknowledging the agency's "'expertise and superior knowledge of a particular field.'" Circus Liquors, Inc. v. Governing Body of Middletown Twp., 199 N.J. 1, 10 (2009) (quoting Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992)). We will not substitute our own judgment for the agency's even though we might have reached a different conclusion. Stallworth, supra, 208 N.J. at 194; see also In re Taylor, 158 N.J. 644, 656 (1999) (discussing the narrow appellate standard of review for administrative matters).
This same deferential standard applies to our review of the agency's choice of a disciplinary sanction. Stallworth, supra, 208 N.J. at 195. We review discipline only to determine whether the "'punishment is so disproportionate to the offense, in the light of all of the circumstances, as to be shocking to one's sense of fairness.'" Ibid. (quoting In re Carter, 191 N.J. 474, 484 (2007)).
III.
With those principles in mind, we turn to Husband's contentions.
Husband argues that the Superintendent's determination that he used excessive force was arbitrary, unreasonable, and against the weight of credible evidence. While the recording did not explicitly depict when D.L. was sprayed, it was clear that both of Husband's versions were untrue. In addition, the Superintendent's reliance on the plain meaning of Husband's statement, "I juiced him in the back of the car with some go juice," was not unreasonable. This evidence, when combined with the fact that none of the other troopers testified to observing Husband spraying D.L. outside the troop car, the change of facts between Husband's July 23, 2008 report and his January 2, 2009 interview, and the other evidence gleaned from the recording, was sufficient for the Superintendent to determine that Husband used excessive force.
Husband next alleges that the penalty imposed by the Superintendent was arbitrary, capricious, and unreasonable. He further asserts that progressive discipline should have applied. We find these arguments to be without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We add the following comments. "[P]rogressive discipline is not a necessary consideration when . . . the misconduct is severe, when it is unbecoming to the employee's position or renders the employee unsuitable for continuation in the position, or when application of the principle would be contrary to the public interest." In re Herrmann, supra, 192 N.J. at 28. Our Supreme Court has further determined that "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). Husband's conduct was severe and unbecoming to his position as a public safety official and the penalty imposed demonstrably took into consideration his lack of any history of misconduct.
Suspension for 120 days to be served concurrently for charges one and two, and suspension of sixty days to be served consecutively for charge three, is not so disproportionate to the offense as to be shocking to our sense of fairness, and we see no reason to disturb the Superintendent's decision.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION