Opinion
DOCKET NO. A-1929-14T2
02-19-2016
NEW JERSEY STATE POLICE, Petitioner-Respondent, v. TROOPER I MICHELE GARITTA, Respondent-Appellant.
Robert A. Ebberup argued the cause for appellant. Christine K. Neeman, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Christina M. Glogoff, Assistant Attorney General, of counsel; Ms. Neeman, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Ostrer and Haas. On appeal from New Jersey Division of State Police, Docket No. 2012-0480. Robert A. Ebberup argued the cause for appellant. Christine K. Neeman, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Christina M. Glogoff, Assistant Attorney General, of counsel; Ms. Neeman, on the brief). PER CURIAM
Appellant Michele Garitta, a State Trooper employed by the New Jersey State Police (NJSP), appeals from the November 17, 2014 final administrative decision of the NJSP Superintendent finding her guilty of violating a rule of employment and imposing a ten-day suspension. We reverse.
I.
We derive the following facts from the record developed at a hearing conducted in the Office of Administrative Law (OAL). At the time of the incident at issue in this appeal, appellant had served as a trooper for approximately eleven years. After working as a road duty trooper for over four years, appellant became "an instructor at the State Police Training Academy," a position she retained throughout this matter. Appellant had an "unblemished career" as a trooper.
On August 17, 2012, appellant and her husband attended a country music concert at the PNC Arts Center. The Center is located across the road from the NJSP road station in Holmdel. As the couple parked their car, appellant saw a number of troopers patrolling the area. Appellant secured her service weapon in her car because firearms are not permitted inside the Center. Appellant had her NJSP badge in her purse, along with her cell phone.
After the concert ended around 11:00 p.m., appellant and her husband began walking back to their car along a roadway leading from the Center to the parking lots. As they walked, the couple encountered five men, who were wearing "motorcycle wear, biker wear." Appellant was five feet, four inches tall and her husband was six foot, one inch. Each of the five men were at least as tall as, or taller than, appellant's husband and at least two were stockier.
The men began taunting appellant and her husband, remarking that appellant's husband did not have a job, and that the couple "'bought [their] cowboy hats at a convenience store[.]'" The couple continued to walk away in an attempt to distance themselves from the group and diffuse the situation. However, one of the men directed appellant's husband to "'[t]ell your bitch wife to take the cut-off shorts home,' or '[l]eave the cut-off shorts at home.'" At that point, appellant's husband replied, "You were joking around but now . . . what you're doing is not right[.]"
One of the five men then punched appellant's husband in the head and he fell to the ground. The other men moved in and began to kick and punch him.
Knowing that there were numerous troopers in the area, appellant immediately took her cell phone from her purse and called 911 to report the assault and its location. At the same time, appellant "was shouting commands at the assailants." Appellant yelled, "Get off him, the Troopers are on their way." While she was on the phone and telling the men to stop, a woman in the crowd grabbed appellant's arm. Appellant told the woman, "Get off," and "swung [her] arm" to get free.
After she completed the 911 call, appellant continued to yell at the men, who "stopped physically attacking" her husband and "began walking away." At that point, two uniformed troopers arrived in a patrol car. The duration of the entire incident between the first punch and the arrival of the two troopers was between one and two minutes.
Appellant identified herself to the troopers and pointed out three of the five men who attacked her husband. Eight other troopers soon reported to the scene. The troopers were able to arrest the three men and they were charged with aggravated assault.
Appellant's husband suffered a fractured wrist and shoulder, a back injury, and multiple abrasions and contusions. No one else was hurt in the assault.
Sometime after the incident, the NJSP assigned an Internal Affairs investigator, Detective Sergeant Adam Palmer, to "gather all the facts" about the incident, "put them down in a report and submit that report." According to Palmer, the NJSP initiated the investigation because "there was an allegation that [appellant] did not take police action, or enough police action during the incident." Palmer's "job [was] not to prepare charges, not to contemplate charges, [and] not to figure out what charges should be brought[.]" Instead, the NJSP assigned Palmer to interview appellant, the troopers who responded to the scene, and another concert attendee, Ms. Knudson, who had also called 911, and prepare a report setting forth the information he obtained. Appellant's account of the entire incident, as set forth above, was corroborated by Knudson and the other troopers.
During his interview with appellant, Palmer asked why she did not physically intervene in the altercation or pull out her NJSP badge and identify herself as a trooper to the five assailants. Appellant explained that she was afraid for her own safety and for that of her husband given the number of men involved in the assault and their size. Appellant also stated "that the assault was very quick to take place" and that "a female grabbed her arm at one point, so she was dealing with somebody possibly assaulting her[.]" Appellant told Palmer "she was busy also dialing 911."
Before appellant could complete her response, however, another investigator who was present at the interview asked a question and the interview moved to other topics. At the hearing, appellant testified that, had this interruption not occurred, she would have also told Palmer that she felt that identifying herself as a trooper "would [have] escalate[d] the situation as opposed to de-escalate[d] the situation" and she "wanted to get that call to 911 to have backup there, to get more troopers there."
On November 6, 2013, over fourteen months after the August 17, 2012 incident, the NJSP Superintendent charged appellant with:
The charge indicates that the Superintendent approved the charge on October 15, 2013. However, the NJSP did not serve it upon appellant for over three weeks. --------
Violation of Article V, Section 7, of the Rules and Regulations of [the NJSP] which reads:
The specification for this charge stated:The failure on the part of a member while on duty or on authorized absence from duty, and whether in uniform or not, to promptly report and take proper police action in any situation reasonably requiring such action, is neglect of duty.
On August 17, 2012, while off-duty, [appellant] acted to her personal discredit and to the discredit of the [NJSP] by neglecting her duty and failing to take appropriate police action while witness to an aggravated assault. Specifically, she failed to identify herself as a member of the State Police and to physically intervene in [an] attempt to stop an aggravated assault on her husband . . . by five male assailants, which occurred at the PNC Arts Center, Holmdel, New Jersey. During the State Police criminal investigation of the assault, [appellant] provided a voluntary written statement that indicated that her only actions during the assault on [her husband] were to dial "911" and issue verbal commands to the assailants to stop and that the troopers were coming. Additionally, in her principal interview to internal
investigators[, appellant] provided a statement in which she indicated she did not identify herself as a trooper during the assault because she was in fear of her own safety.The Superintendent proposed to suspend appellant for ten days without pay for this alleged rule violation.
Appellant contested the charge and requested a hearing. The NJSP transmitted the matter to the OAL, and an Administrative Law Judge (ALJ) conducted a contested case hearing on August 18, 2014.
Palmer and appellant were the only witnesses at the hearing, and both related the facts of the incident as set forth above. Significantly, the NJSP did not present a witness, expert or otherwise, to establish what "proper police action" is required when an off-duty trooper, who is not armed or dressed for combat, is confronted by five large assailants, dressed in biker gang gear, who begin to assault her husband. Instead, by his own admission, Palmer's testimony was limited to the facts he collected during his investigation.
Nevertheless, Palmer testified that, as a trooper with seventeen years of experience, he was not "aware of . . . any rule, regulation, standard operating procedure, [or] operations instruction" that would require troopers in these circumstances to either "physically involve themselves into the altercation" or "produce [their] identification to the assailants[.]" Palmer also testified that troopers are instructed that motorcycle gang members are violent, frequently carry weapons, and "hate law enforcement" officers.
Palmer also candidly stated that the entire incident was no more than two minutes and, in that time, appellant called 911 to summon backup, fended off an assault from a woman in the crowd, and shouted commands to the five men to stop. Therefore, he testified that it was possible that appellant did not "have enough time to reach into her pocket and pull out her State Police identification between the time she made the . . . phone call to 911 . . . and the time that the first troopers arrived, because it happened relatively quickly[.]"
At the hearing, appellant confirmed Palmer's testimony that the NJSP had no standard operating procedures or directives requiring an unarmed, solitary trooper faced with the circumstances of August 17, 2012 to immediately enter the fray or identify herself as a trooper. Based on her seven years of experience as a NJSP Academy instructor, appellant stated that identifying herself as a trooper to individuals who were dressed as motorcycle gang members, who regularly carry weapons, "would have escalated the situation." If that occurred, appellant, who did not have a weapon, would not have been able to defend herself or protect others "depending on how escalated the situation would have gotten if it was just [herself] there."
Appellant stated that her actions were "[a]bsolutely" appropriate under the circumstances. Because she was not dressed in uniform, appellant testified that identifying herself as a trooper would not have added anything to the commands she was already shouting to the five assailants, especially if the men were carrying weapons. Quickly assessing the specific facts presented, appellant's training led her to conclude that calling 911 for backup "to get more troopers there" to stop the assault "was the appropriate action."
In an October 6, 2014 Initial Decision, the ALJ upheld the charge and recommended that the Superintendent impose a six-day suspension. The ALJ reasoned that, under Article V, Section 7 of the NJSP rules, "off-duty, out-of-uniform troopers still have a duty to take proper police action. Here, the action [appellant] took -- yelling at people and calling 9-1-1, is the action of an ordinary citizen, not that of a police officer." Therefore, the ALJ concluded that appellant "neglect[ed] her duty by failing to show the badge and use the color of its authority to stop the attack."
Both parties filed exceptions to the Initial Decision. On November 17, 2014, the Superintendent issued a final decision, sustaining the neglect of duty charge, but imposing the ten-day suspension he had originally proposed. In upholding the charge, the Superintendent stated:
Most people understand that attacking a police officer is a far worse offense than striking a regular citizen, and that anything illegal done in the presence of police is much more likely to yield a bad result for the actor. Thus, [appellant] had a duty to order the assailants to cease the assault under color of law rather than merely yelling at them and calling 911. To find otherwise would permit State troopers to avoid taking police action whenever they perceive the possibility of personal harm -- the public respect for the [NJSP] would be devastated should such non-action be permitted.
In determining to impose a ten-day suspension, the Superintendent recognized that appellant had no prior disciplinary record. However, he opined that appellant's "inaction was a discredit to herself and [the NJSP]. Her inaction in the face of an assault that clearly required police action is a detriment to the image of personal integrity and dependability that is associated with the [NJSP]." This appeal followed.
II.
On appeal, appellant contends that "[t]he Superintendent failed to meet his burden to provide sufficient[,] competent[,] and credible evidence" to support the charge against her, and that the Superintendent's "final agency determination . . . was arbitrary, capricious[,] and unreasonable." We agree with these contentions and reverse.
Established precedents guide our task on appeal. Our scope of review of an administrative agency's final determination is limited. In re Herrmann, 192 N.J. 19, 27 (2007). "'[A] strong presumption of reasonableness attaches'" to the agency's decision. In re Carroll, 339 N.J. Super. 429, 437 (App. Div.) (quoting In re Vey, 272 N.J. Super. 199, 205 (App. Div. 1993), aff'd, 135 N.J. 306 (1994)), certif. denied, 170 N.J. 85 (2001). The burden is upon the appellant 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).
To that end, we will "not disturb an administrative agency's determinations or findings unless there is a clear showing that (1) the agency did not follow the law; (2) the decision was arbitrary, capricious, or unreasonable; or (3) the decision was not supported by substantial evidence." In re Application of Virtua-West Jersey Hosp. Voorhees for a Certificate of Need, 194 N.J. 413, 422 (2008); see also Circus Liquors, Inc. v. Governing Body of Middletown Twp., 199 N.J. 1, 9-10 (2009). We are not, however, in any way "bound by the agency's interpretation of a statute or its determination of a strictly legal issue." Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85, 93 (1973).
Moreover, if our review of the record satisfies us that the agency's finding is clearly mistaken or erroneous, the decision is not entitled to judicial deference and must be set aside. L.M. v. State of N.J., Div. of Med. Assistance & Health Servs., 140 N.J. 480, 490 (1995). We may not simply "rubber stamp" an agency's decision. In re Taylor, 158 N.J. 644, 657 (1999).
Applying these principles here, we conclude that the Superintendent's decision cannot stand. The NJSP charged appellant with violating Article V, Section 7 of its rules. This provision states that an off-duty trooper must "take proper police action in any situation reasonably requiring such action[.]" Notably, however, the rule does not define the term "proper police action" or the situations in which such action would be "reasonably requir[ed]."
It is well established that administrative regulations like Article V, Section 7 must be "sufficiently definite" to provide notice to those governed by them. In re Health Care Admin. Bd., 83 N.J. 67, 82, appeal dismissed and cert. denied, 449 U.S. 944, 101 S. Ct. 342, 66 L. Ed. 2d 208 (1980). "The test is whether the [regulation] gives a person of ordinary intelligence fair notice that his [or her] conduct is forbidden and punishable by certain penalties." In re Suspension or Revocation of the License of DeMarco, 83 N.J. 25, 37 (1980). Article V, Section 7 clearly fails that test.
As Detective Sergeant Palmer admitted at the hearing, the NJSP has not promulgated any other rule or regulation defining what is meant by "proper police action in any situation reasonably requiring such action[.]" The Superintendent has never issued any standard operating procedures, directives, or instructions further explaining this standard. In addition, the NJSP has never trained its troopers that, when confronted by superior forces in an arena where numerous armed troopers are in close proximity, the off-duty, unarmed trooper must immediately announce his or her status as a trooper and then single-handedly attempt to physically subdue the possibly armed assailants, rather than call for back-up.
Given the penal consequences of their violation, we construe disciplinary rules strictly. Id. at 36. Where, as here, the rule is ambiguous, we construe it in favor of the affected employee. The NJSP may have been able to address and possibly cure the lack of clarity in its rule had it presented a witness at the hearing to explain the standard it sought to impose upon appellant. After all, the burden of proving the violation was clearly on the Superintendent's shoulders. See Atkinson v. Parsekian, 37 N.J. 143, 149 (1962). However, the NJSP did not even attempt to meet that burden here. Instead, the agency's only witness was Detective Sergeant Palmer, who limited his testimony to the facts he assembled during his investigation.
With regard to those facts, Palmer admitted that it was possible that, during the no more than two-minute duration of the incident, appellant had done all she could under the circumstances. In that extremely brief period of time, appellant called for backup, fended off an assault by a woman in the crowd, and shouted commands at the five assailants to stop, which they did just before the first troopers arrived. No NJSP witness explained how or why, under those emergent circumstances, "proper police action" required appellant to also identify herself as a trooper, show her badge, and then begin attempting to overpower the five men, without a weapon, backup, or any means to restrain any of the assailants she might have been able to subdue during the two minutes that elapsed before the troopers arrived.
Instead, appellant was the only witness to address the "proper police action" standard at the hearing. Based on her seven years of experience as a training officer, appellant testified without contradiction that, given the circumstances presented, she "[a]bsolutely" took the appropriate action. Telling five assailants who appeared to be associated with a motorcycle gang that she was a trooper and then attempting to physically overcome them, appellant stated, would have only escalated the situation beyond the assault on her husband. Thus, appellant testified that the "proper police action" was to summon back-up and continue to shout at the men to stop. Again, this strategy was successful in that the men stopped the assault and began to walk away just before the other troopers got to the scene. Thus, the record simply does not support the Superintendent's conclusion that appellant neglected her duty under the totality of the circumstances presented in this case.
In so concluding, we are of course
mindful of the special status of the [NJSP] and the special standards of discipline that apply to its members, [see State v. State Troopers Fraternal Ass'n, 134 N.J. 393, 413-19 (1993)], and of the Superintendent's duty to maintain discipline among the troopers as one means of promoting the public interest and safety, [see In re Carberry, 114 N.J. 574, 578 (1989)].
[Div. of State Police v. Jiras, 305 N.J. Super. 476, 481 (App. Div. 1997), certif. denied, 153 N.J. 52 (1998).]However, deference to this "special status" cannot substitute for the obligation of the NJSP to meet its burden of proving that appellant violated a clearly defined standard of conduct.
The Superintendent failed to meet that burden here. He never explained how the result would have been different had appellant identified herself as a trooper and joined the fray before backup arrived. Instead, the Superintendent focused entirely upon appellant's candid statement, made as part of her detailed interview with Detective Sergeant Palmer and her thorough testimony at the hearing, that she feared for her own safety, to determine that "proper police action" was not taken. In doing so, the Superintendent mistakenly ignored appellant's complete explanation of her rationale for summoning backup and the complete absence of any testimony from the NJSP to contradict the reasonable, and successful, approach she took, which led to the apprehension of three of the five men involved in the assault.
Reversed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION