Opinion
DOCKET NO. A-4912-10T1
10-12-2012
IN THE MATTER OF A.M.
Deana L. Walsh argued the cause for appellant, A.M. (Chance & McCann, attorneys; Ms. Walsh, on the briefs). Christopher J. Hamner, Deputy Attorney General argued the cause for respondent, Department of Human Services Police Department (Jeffrey S. Chiesa, Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Mr. Hamner, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Alvarez, Nugent and Ostrer.
On appeal from the Civil Service Commission, CSC Docket No. 20103611.
Deana L. Walsh argued the cause for appellant, A.M. (Chance & McCann, attorneys; Ms. Walsh, on the briefs).
Christopher J. Hamner, Deputy Attorney General argued the cause for respondent, Department of Human Services Police Department (Jeffrey S. Chiesa, Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Mr. Hamner, on the brief). PER CURIAM
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 that removal is the only appropriate penalty.
It is well-established that "[t]he scope of [our] review is limited. An administrative agency's final quasi-judicial decision will be sustained unless there is a clear showing that it is arbitrary, capricious, or unreasonable, or that it lacks fair support in the record." In re Herrmann, 192 N.J. 19, 27-28 (2007) (citation omitted). We review such decisions with "substantial deference . . . even if [we] would have reached a different result in the first instance." Id. at 28 (citations omitted). As to sanctions, on appeal we alter them only if "necessary to bring the agency's action into conformity with its delegated authority." Ibid. (quoting In re Polk, 90 N.J. 550, 578 (1982)).
The penalty in this instance certainly did not exceed the Commission's authority; nor was it "so disproportionate . . . as to be shocking to one's sense of fairness." Id. at 28-29 (quoting Polk, supra, 90 N.J. at 578). In fact, as the Court recently stated, there are instances in which removal is the only appropriate sanction despite a largely unblemished prior employment record. In re Stallworth, 208 N.J. 182, 196 (2011).
In this case, the Commission considered A.M.'s conduct to warrant termination in no small part because of his position as a police officer. See Town of West New York v. Bock, 38 N.J. 500, 522 (1962) (emphasizing that the misconduct of public servants responsible for protecting public safety warrants closer scrutiny); Cosme v. Borough of E. Newark Twp. Comm., 304 N.J. Super. 191, 205-06 (App. Div. 1997) (upholding the dismissal of a police officer who went on vacation against orders since his conduct was unbecoming to a police officer), certif. denied, 156 N.J. 381 (1998).
The unique responsibilities of A.M.'s job inform our analysis as well. We have long held that:
a police officer is a special kind of public employee. His primary duty is to enforce and uphold the law. He carries a service revolver on his person and is constantly called upon to exercise tact, restraint and good judgment . . . . He represents law and order to the citizenry and must present an image of personal integrity and dependability in order to have the respect of the public . . . .
[Twp. of Moorestown v. Armstrong, 89 N.J. Super. 560, 566 (App. Div. 1965), certif. denied, 47 N.J. 80 (1966).]
In light of the Commission's reliance on the record and well-established legal principles, there simply is no basis upon which to overturn its final decision; it was not arbitrary, unreasonable, or capricious. The sanction was within the Commission's authority and not so "disproportionate to the offense" as to be "shocking" to our sense of fairness. Herrmann, supra, 192 N.J. at 28-29.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION