Opinion
DOCKET NO. A-6106-10T3
06-05-2012
ELLIS HAROLDSON, Plaintiff-Respondent/ Cross-Appellant, v. BOROUGH OF CLIFFSIDE PARK, Defendant-Appellant/ Cross-Respondent.
Dennis Calo argued the cause for appellant/cross-respondent (Hartmann Doherty Rosa Berman & Bulbulia, L.L.C., attorneys; Mr. Calo, on the briefs). Philip DeVencentes argued the cause for respondent/cross-appellant (Galantucci & Patuto, attorneys; Mr. DeVencentes, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Messano and Yannotti.
On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-6182-10.
Dennis Calo argued the cause for appellant/cross-respondent (Hartmann Doherty Rosa Berman & Bulbulia, L.L.C., attorneys; Mr. Calo, on the briefs).
Philip DeVencentes argued the cause for respondent/cross-appellant (Galantucci & Patuto, attorneys; Mr. DeVencentes, on the brief). PER CURIAM
After the Borough of Cliffside Park (Borough) decided to terminate his employment as an officer in the Cliffside Park Police Department (CPPD), Ellis Haroldson (Haroldson) filed a complaint in the Law Division seeking de novo review of the Borough's action. The trial court found that the charges had been sustained and imposed a six-month suspension. The Borough appeals and Haroldson cross-appeals from the trial court's judgment. We affirm on the appeal and the cross-appeal.
I.
In November 2009, the Borough charged Haroldson with: 1) abuse of his public office; (2) official misconduct; (3) conduct unbecoming a police officer; and (4) violation of the implicit standard of good behavior required of a police officer. The Borough alleged that in the period from October 2007 through July 15, 2009, Haroldson had initiated numerous telephone and personal contacts with Vincent O'Hara (O'Hara) and his wife Rosalie O'Hara (Rosalie) to collect a debt that O'Hara owed to him. According to the complaint, in those contacts, Haroldson had improperly invoked and referred to his status as a police officer in an attempt to secure payment of the debt.
At the hearing, evidence was presented which indicated that Haroldson was friends with Michael Mastromarino (Mastromarino) and his wife Barbara Mastromarino (Barbara), who he knew through his side business installing phones and electronic devices. Mastromarino was arrested in New York and Pennsylvania for his alleged participation in a scheme selling cadaver parts.
Believing Mastromarino was innocent, Haroldson endeavored to assist Barbara obtain funds for a bail bond in Pennsylvania. Haroldson introduced Barbara to O'Hara because Haroldson knew that O'Hara "lent money." O'Hara's fee for his services as a loan broker was $15,000. Haroldson paid the fee with a check drawn upon his wife's account. O'Hara refused to take steps to obtain the loan until Haroldson's check cleared, so Haroldson borrowed additional money and gave O'Hara $15,000 in cash.
O'Hara returned one of the $15,000 payments, after Haroldson's check cleared. O'Hara subsequently informed Barbara that he could obtain the loan if she provided collateral, and he asked her to complete an application for a home equity loan. Sometime thereafter, Barbara told O'Hara she no longer required his services.
In July 2009, Rosalie filed a complaint with the CPPD alleging that she and her husband had been harassed by Haroldson. Rosalie provided Captain Richard Gaito (Gaito) with transcripts of voicemail messages from Haroldson, in which he said, among other things, that he was "at the end of [his] rope" with her husband, he needed the money back, and he was getting "[r]eally, really, really aggravated." In the last of these transcribed calls, Haroldson stated that he did not
understand what the problem is, why [O'Hara's] doing this, but this is not how you treat people that help you out. You don't screw them. And that's what I feel like he's doing. And none of this is aimed towards you. Believe me. But I do believe that you can say something and move him along, and I appreciate it if you could, because my frustration level is like at its breaking point, and I don't want to go and sign a complaint against him because the only thing that's going to do is tie it up even further. All Right. If I have to, I will. All right. And I'll let it be known to everybody that he took 15,000 of my money and didn't give it back in a timely manner. And what the bullshit he has to put me through. All right. It's not appreciated.Rosalie told Gaito that she felt threatened by the calls. She also told Gaito that Haroldson had spread rumors about her husband.
O'Hara spoke with Gaito. O'Hara stated that he felt he was being harassed by Haroldson. He said that Haroldson threatened to report him to the taxing authorities. O'Hara additionally said that, during a meeting at a restaurant in North Bergen, Haroldson had threatened to use his status as police officer, but Gaito, who was present at the time, testified that he did not witness any such threats.
O'Hara additionally testified that he agreed to accept $15,000 as a fee for assisting Barbara secure a $500,000 loan for her husband's bail bond. He said that Haroldson had given him a $15,000 check and $15,000 in cash. He had returned $15,000 to Haroldson. O'Hara stated that after Barbara decided not to use his services, Haroldson had demanded the return of the $15,000, but O'Hara refused to return the money because he said the fee was non-refundable.
O'Hara further testified that Haroldson started calling his cell phone "four, five, six times a day." Haroldson also called O'Hara's unlisted home phone number. According to O'Hara, during these conversations, Haroldson was "hollering and swearing." Later on, Haroldson called every day for months. O'Hara said that Haroldson would stop him in public to demand repayment. O'Hara stated that Haroldson threatened to have police officers stop him, and threatened to report him to the Internal Revenue Service or the Federal Bureau of Investigation.
Toward the end of 2007, after receiving a call from an attorney who was representing Haroldson, O'Hara sent Haroldson a $500 check. In the summer of 2008, Haroldson approached O'Hara at a pizzeria and asked to speak to him outside. O'Hara said that, in response to Haroldson's demands, he agreed to repay the money when he was able to do so. The conversation became heated. O'Hara threatened to knock Haroldson's teeth down his throat after Haroldson threatened to report him to the taxing authorities and have the police force harass him.
O'Hara claimed that, later on, Barbara told him that her father-in-law had repaid Haroldson. At some point, Haroldson filed a lawsuit against O'Hara, seeking repayment of the $15,000. O'Hara prevailed in that action, and Haroldson stopped calling. After O'Hara prevailed in the lawsuit, Rosalie complained to the CPPD.
Rosalie also testified. She stated that she received phone calls from Haroldson that she perceived as threatening. She also overheard calls that Haroldson made to her husband, which consisted of "yelling and cursing." Rosalie stated that she was afraid to go to the police because Haroldson was a police officer, but eventually she filed the complaint because she had become convinced the harassment was not going to end.
Haroldson admitted calling O'Hara sixteen times between October 28, 2007 and November 27, 2007. He also admitted making twelve calls to Rosalie at various times between November 2, 2007 and April 4, 2008. Haroldson additionally acknowledged that Captain Michael Russo (Russo) of the CPPD made four calls on his behalf in an attempt to collect the money. He denied threatening O'Hara or making any threats to use his authority as a police officer. Haroldson acknowledged that Mastromarino's father gave him $15,000 but Haroldson said that he had to repay Mastromarino's father when O'Hara repaid him.
Russo testified that he had been friends with O'Hara for a number of years, and he had introduced Haroldson to O'Hara. Russo said that, during the dispute over the money, O'Hara never told him that Haroldson had threatened him physically. He stated that, during the incident at the pizzeria, Haroldson did not physically threaten O'Hara or suggest that the police would harass him around town. Russo testified, however, that Haroldson told O'Hara he would contact taxing authorities in an attempt to initiate an investigation.
II.
The hearing officer issued a report and recommendation on April 21, 2010. In his report, the hearing officer found that there was no believable evidence that Haroldson had threatened O'Hara at the pizzeria by referencing the fact that he was a police officer or that Haroldson would have the police harass O'Hara. The hearing officer also found that there was no credible proof that Haroldson had ever initiated an investigation of O'Hara, or that Haroldson or other officers had stopped O'Hara in their official capacities.
The hearing officer found, however, that Haroldson made numerous phone calls to O'Hara and Rosalie. The hearing officer said that, while the calls were not threatening, the O'Haras perceived them as such. He also stated that "the sheer number of the calls" was harassing. The hearing officer did not quantify all of the calls but noted that, between October 17, 2007 and October 26, 2007, Haroldson called the O'Haras about forty times.
The hearing officer recommended that the Borough find that the charges had been proven. He also recommended that Haroldson be suspended for the "time served" on suspension, plus an additional ninety days. The Borough accepted the hearing officer's factual findings, but determined that the appropriate sanction was termination.
Haroldson filed a complaint in the Law Division, seeking de novo review of the Borough's action pursuant to N.J.S.A. 40A:14-150. The trial court issued a letter opinion dated March 2, 2011, in which it found that the record supported the hearing officer's determination that the charges had been proven. The trial court then addressed the sanction. The court noted that in Cosme v. Borough of East Newark Township Committee, 304 N.J. Super. 191, 205 (App. Div. 1997), certif. denied, 156 N.J. 381 (1998), the court held that in non-civil-service jurisdictions such as the Borough, disciplinary suspensions of police officers are limited to six months, and if the officer's misconduct warrants a suspension of longer than six months, the sanction should be dismissal.
The trial court remanded the matter to the hearing officer to reconsider his recommended penalty in light of Cosme, and retained jurisdiction. On remand, the hearing officer stated that, had the Cosme case been brought to his attention, he would have recommended a six-month suspension. On June 28, 2011, the Borough considered the hearing officer's remand decision, and again determined that termination was the appropriate sanction.
On July 26, 2011, the trial court issued another letter opinion, in which it concluded that the charges had been proven by a preponderance of evidence. The court also concluded that termination "shock[ed] the [c]ourt's sense of fairness[,]" since Haroldson had been on the Borough's police force for seventeen years and had no prior disciplinary infractions.
The court found that the Borough had acted arbitrarily, capriciously and unreasonably by terminating Haroldson and imposed a six-month suspension, to run from the date of the initial suspension. The court entered a judgment dated August 18, 2011, memorializing its decision. This appeal and cross-appeal followed.
III.
We turn first to Haroldson's cross-appeal. Haroldson argues that the charges were not proven by substantial credible evidence. He contends that his communications with the O'Haras were not threatening and did not constitute harassment under N.J.S.A. 2C:33-4(c). Haroldson also argues that he was merely communicating with the O'Haras as a private individual for the purpose of obtaining repayment of his money. He contends that it is not inappropriate for a police officer to try to collect a private debt. Haroldson additionally contends that his communications with the O'Haras, though numerous, were not sufficient to support the charges. We disagree with these contentions.
When a trial court undertakes review of a municipality's conviction of a police officer on a disciplinary charge, the trial court considers the matter "'anew, afresh [and] for a second time.'" In re Phillips, 117 N.J. 567, 578 (1990) (quoting Romanowski v. Brick Twp., 185 N.J. Super. 197, 204 (Law Div. 1982), aff'd o.b., 192 N.J. Super. 79 (App. Div. 1983)). In doing so, the trial court does not apply an abuse of discretion standard but makes it own findings of fact. Ibid. (citing Romanowski, supra, 185 N.J. Super. at 204).
Moreover, we play "a limited role" when reviewing the decision in a de novo proceeding. Id. at 579. We will not disturb the trial court's determination unless it was arbitrary, capricious, or unreasonable or not supported by substantial credible evidence in the record. Ibid. (citing Henry v. Rahway State Prison, 81 N.J. 571, 580 (1980); Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963)).
We are convinced that there is sufficient credible evidence in the record to support the trial court's finding that Haroldson made numerous calls to the O'Haras, which they perceived as threatening and harassing. Haroldson may not have acted with a purpose to harass, and his conduct may not have constituted harassment as defined in N.J.S.A. 2C:33-4(c). Nevertheless, the evidence was sufficient to support the charges at issue here, including conduct unbecoming a police officer and violation of the standard of good behavior required by police officers.
Haroldson also argues that the charges should have been dismissed because they were filed beyond the time required by N.J.S.A. 40A:14-147. Again, we disagree. The statute provides that
[a] complaint charging a violation of the internal rules and regulations established for the conduct of a law enforcement unit shall be filed no later than the 45th day
after the date on which the person filing the complaint obtained sufficient information to file the matter upon which the complaint is based.
In McElwee v. Borough of Fieldsboro, 400 N.J. Super. 388, 394 (App. Div. 2008), we held that the forty-five day filing requirement only applies to disciplinary charges based on violations of internal rules and regulations established by a law enforcement unit. Because the charges at issue here were not based on the CPPD's internal rules and regulations, the statute did not require dismissal of the charges.
IV.
We turn to the Borough's appeal. The Borough argues that the trial court abused its discretion by modifying the termination sanction and ordering a six-month suspension. The Borough contends that Haroldson's conduct was egregious and warrants termination. The Borough alternatively argues that we should exercise our original jurisdiction under Rule 2:10-5 and order Haroldson demoted from his position as Sergeant to the position of patrolman. Again, we disagree.
As stated previously, we cannot disturb the trial court's decision unless it is arbitrary, capricious, or unreasonable or lacking evidential support. In re Phillips, supra, 117 N.J. at 579. Moreover, as we stated in Cosme, when a trial judge modifies a disciplinary sanction imposed by a municipality, we must consider whether the court's determination "was a fair and equitable result that flowed logically from the record . . . ." Cosme, supra, 304 N.J. Super. at 203. We are satisfied that the court's decision to impose a six-month suspension rather than termination was not arbitrary, capricious, or unreasonable and represents a fair and equitable result, which flowed logically from the evidence presented.
We also find no basis to exercise our original jurisdiction under Rule 2:10-5 to require Haroldson's demotion to the position of patrolman. It appears that the Borough did not seek this relief in the trial court, having sought instead reinstatement of its decision to terminate Haroldson. In any event, we are not convinced that modification of the sanction is warranted.
Affirmed on the appeal and the cross-appeal.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION