Opinion
DOCKET NO. A-3240-15T1
06-13-2016
MONTCLAIR POLICE OFFICER JOSELITO NEBIAR, Plaintiff-Respondent, v. TOWNSHIP OF MONTCLAIR, Defendant-Appellant.
Angelo J. Genova argued the cause for appellant (Genova Burns LLC, attorneys; Mr. Genova and Jennifer Borek, of counsel and on the briefs; Michael C. McQueeny, on the briefs). Patrick P. Toscano, Jr., argued the cause for respondent (The Toscano Law Firm, LLC, attorneys; Mr. Toscano, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Messano and Carroll. On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-431-15. Angelo J. Genova argued the cause for appellant (Genova Burns LLC, attorneys; Mr. Genova and Jennifer Borek, of counsel and on the briefs; Michael C. McQueeny, on the briefs). Patrick P. Toscano, Jr., argued the cause for respondent (The Toscano Law Firm, LLC, attorneys; Mr. Toscano, of counsel and on the brief). PER CURIAM
Defendant Township of Montclair (Montclair) appeals from a March 14, 2016 Law Division order reinstating plaintiff Joselito Nebiar's employment with the Montclair Police Department (MPD), and an April 1, 2016 order denying reconsideration. For the reasons that follow, we reverse the orders and reinstate plaintiff's termination.
I.
Plaintiff began his employment as a Montclair police officer in 2004. Prior to his hire, plaintiff was required to submit to a psychological evaluation. Daniel F. Schievella, Ph.D., a clinical psychologist who works exclusively with police officers, conducted the evaluation. While noting plaintiff's "frequent address changes and changes in employment," Dr. Schievella found that these "did not appear to be the result[] of any impulsiveness." Accordingly, Dr. Schievella approved plaintiff as psychologically suitable for employment.
On February 21, 2013, plaintiff was charged with simple assault as a result of a domestic violence incident involving his then live-in girlfriend, A.C. MPD Captain Scott A. Roberson described the incident as follows:
We use initials to preserve the confidentiality of the alleged domestic violence victim.
Upon arrival, officers met with [plaintiff] who stated that he locked his girlfriend out of the house and she is banging at the backdoor to gain entrance. Officers met with [A.C.] who was at the back step of the house. She had a cut on her mouth and blood on her hands. [A.C.] stated to the officers that she was grabbed by [plaintiff] and
thrown to the ground and pushed against the back door. [Plaintiff] was placed under arrest and charged with simple assault. [A.C.] did not wish to file any complaints or obtain a temporary restraining order. Officers signed the criminal complaint for simple assault.
I would like to make you aware that according to [plaintiff], [A.C.] has an alcohol and substance abuse problem and he also stated that he had an alcohol abuse problem and has recently enrolled in an outpatient alcohol treatment program.
With A.C.'s consent, the assault charge was dismissed in Bloomfield Municipal Court on March 13, 2013. Notwithstanding its dismissal, Montclair required plaintiff to submit to a fitness for duty evaluation, which was conducted by Dr. Schievella on March 20 (FDE 1). Dr. Schievella interviewed plaintiff and administered a battery of psychological tests. He also reviewed various background materials, including Roberson's March 19 letter that described the incident. Roberson also outlined additional incidents involving plaintiff and provided a complete summary of plaintiff's internal affairs file.
In the "summary and recommendations" section of his March 20, 2013 report, Dr. Schievella noted:
Worrisome is the officer[']s assertion that prior to this incident, he had taken an opioid pain medication with a beer. He denies any physical assault.
Officer Nebiar, prior to the incident[,] had four other domestic disputes
on 1/11/13, 3/19/11, 1/11, and 6/06, the last being with a former girlfriend. [In] [a]ll of these domestic disputes, Officer Nebiar claimed to be the "victim."
. . . .
[A]s a police officer, he would park his vehicle in parking lots at bars, looking for "D.U.I.'s." He reportedly used the opportunity to obtain phone numbers and to talk with females leaving the bar.
He met his current girlfriend, [A.C], when she was walking home late at night. He followed her, reportedly, being concerned for her welfare, but ultimately asked his lieutenant if he could drive a "friend" home to Livingston. He acknowledged that she was likely intoxicated or under the influence of unknown substances at that meeting.
His behaviors regarding meeting women outside of bars or late at night are worrisome, in terms of there (sic) being potentially seen as stalking in nature.
. . . .
Alcohol use [] given his history is presently suspected and is of particular concern if it is now combined with prescription opioid pain medication.
Officer Nebiar appears to have demonstrated a long history of poor judgment as well as poor impulse control, as it relates particularly to women.
His behaviors on Facebook, finding women outside of bars, while on duty, as well as following his girlfriend late at night are all worrisome. Present allegations of sexual abuse being investigated by the prosecutor's office are of concern as well.
Due to his problematic relations, his home environment remains too volatile and unstable to allow for the safe return of duty and off-duty weapons.
The recent domestic violence charge, as well, suggests an escalation of aggressive behaviors. He appears to be presently lacking in insight as to how his present behaviors may be jeopardizing his career, as well as his personal safety.
Dr. Schievella recommended that plaintiff not have access to his service or off-duty weapons, attend psychological counseling at least once a week for six months, and undergo a substance abuse evaluation and abide by any treatment recommendations. He further recommended that "[i]f there are any further incidents of domestic disputes/violence, as either the aggressor or 'victim', while in or after psychological and alcohol treatment, [plaintiff] should be considered for termination."
On April 24, 2013, the parties entered into an agreement whereby Montclair agreed to refrain from filing disciplinary charges against plaintiff. In return, plaintiff agreed to attend psychological counseling sessions once a week for a minimum of six months, as well as alcohol abuse treatment. Pursuant to the agreement, plaintiff began counseling sessions with John M. Rotondi, Ph.D., on May 7, 2013.
On June 5, 2013, plaintiff and A.C. were involved in another domestic violence incident that led to plaintiff's arrest on charges of aggravated assault, unlawful possession of a weapon, and possession of a weapon for an unlawful purpose. Bloomfield police officers Freitag and Laratta responded to the Irving Terrace address where plaintiff resided with A.C. Freitag's report noted that:
Off[icer] Laratta and myself knocked on the door with both parties involved coming to the door together. When asked if everything was ok, both parties stated they were having a verbal argument. When we separated the parties, the victim, [A.C.], was very distraught stating that both herself and [plaintiff] were text fighting . . . since 11 a.m. she stated he picked her up and drove her to [] Irving Terrace where they both lived as of one week prior. After drinking together, there was a physical confrontation, and we would only see the bruising if a female officer looked at her upper thigh area pointing to her pelvic area. She stated that the suspect threw her down [on the] floor, reached for a mag flashlight and attempted to forcefully insert the object into her vagina causing pain. That is when she started screaming for help . . . . [Plaintiff] stated that they did have a texting and phone fight all day long. He admitted to picking her up and driving to [] Irving Terrace where the two parties drank liquor. He stated that the only thing that occurred after that was a verbal argument and nothing more. [Plaintiff] was then placed under arrest, [M]irandized and transported to [headquarters] . . . .
A.C. recanted her statements the next day. However, on June 7, 2013, Montclair suspended plaintiff without pay pending resolution of the criminal charges. On June 12, the Essex County Prosecutor's Office (ECPO) advised Montclair Police Chief David Sabagh that it was "conducting a criminal investigation into [plaintiff's] conduct" and, "[t]herefore, until our investigation is complete, your administrative investigation should cease. Your [forty-five] day rule is tolled."
On September 27, 2013, the ECPO notified Chief Sabagh that the grand jury had declined to indict plaintiff on the criminal charges and that the matter was being remanded for any administrative charges the MPD deemed necessary. The assistant prosecutor further advised that, pursuant to Attorney General Guidelines, plaintiff was required to return to the same psychologist that performed the original fitness for duty evaluation prior to Sabagh making any recommendation as to whether plaintiff should be re-armed.
Consequently, plaintiff submitted to a second fitness for duty evaluation (FDE 2) by Dr. Schievella on October 11, 2013. Dr. Schievella again interviewed plaintiff and subjected him to a number of psychological tests. Dr. Schievella also reviewed various background materials that included (1) a July 17, 2012 police incident report involving a woman who claimed to have been sexually assaulted by plaintiff and A.C.; and (2) video recorded interviews of A.C. at the Bloomfield Police Department and a DVD that showed "marks were evident on [A.C.'s] lower legs and abdomen." Dr. Schievella summarized the contents of A.C.'s two video recorded interviews at length in his October 11 report.
Dr. Schievella's report detailed the basis for his findings and concluded with the opinion that plaintiff was unfit for duty:
[Plaintiff] has been offered the opportunity to rehabilitate through addiction treatment as well as individual counseling.
His involvement in domestic disputes/violence has persisted despite these interventions.
Given the chronicity of these behaviors , it would appear unsafe to re-arm the subject now or in the foreseeable future.
If his pattern of behavior continues there is a high probability of risk that aggressive actions will escalate.
I , therefore, recommend that [plaintiff] be terminated from his employment as a police officer.
On October 24, 2013, Sabagh provided the ECPO with his report on plaintiff's background and a recommendation that plaintiff not be authorized to carry his service weapon or any off duty weapon. On January 3, 2014, the ECPO responded that "[b]ased upon [its] review of the reports and findings of Dr. Schievella, the domestic violence history of Officer Nebiar as well as taking into consideration your recommendation[,] this Office has determined that [he] should not be re-armed with his service weapon."
In his October 24, 2013 cover letter, Sabagh indicated that his report was being submitted "[p]ursuant to the New Jersey Attorney General's Directive, No. 2003-3." --------
On January 10, 2014, Sabagh filed disciplinary charges alleging that plaintiff violated four MPD rules and regulations, including: 2:1.3(2) (Incompetency or inefficiency); 2:2.15 (Repeated violations of Department Rules & Regulations, or any other course of conduct indicating that a member has little or no regard for his responsibility as a member of the [MPD]); 2:2.16 (Conduct subversive of good order and the discipline of the [MPD]); and 2:2.28 (failure to comply with the Chief's orders, directives, regulations, oral and written and also those of Superiors and Supervisors). Plaintiff was notified that the charges would be heard on January 21, and that Sabagh was recommending that his employment with the MPD be terminated.
Plaintiff retained counsel who requested an adjournment of the hearing date. Plaintiff also scheduled an evaluation with Donald J. Franklin, Ph.D., a psychologist who works with a variety of patients. Dr. Franklin evaluated plaintiff on April 25, 2014, and determined that he was fit for duty. In his June 16, 2014 report, Dr. Franklin summarized his findings and conclusions as follows:
First, none of the test results would support [Dr. Schievella's recommendation to terminate plaintiff as a police officer and remove his weapon]. Second, [Dr. Schievella] appears to rely on uncorroborated statements made by [plaintiff's] former girlfriend. Those statements were also likely presented to the grand jury when considering the charges brought against [plaintiff] by his former girlfriend, and the grand jury did not issue an indictment. At present, [plaintiff] has custody of his son (by [A.C.]) and she has visits supervised by his parents. The facts seem to indicate that [plaintiff] was in a dysfunctional relationship with [A.C.], and she has some problems that do not appear to be resolved (based on the status of custody of their child). He did make some bad decisions while in that relationship, mainly that he remained in the relationship. He explains that he tried to make it work for the sake of his son. However, he has followed through with healthy decisions, ended that relationship, and has maintained the care and custody of his son over the past year. There is no indication of a current substance abuse problem, and there is no indication of any current psychological problems that would result in a conclusion that he is not fit for duty as a police officer.
After reviewing all of the materials listed above, completing a clinical psychological evaluation, mental status exam and psychological testing (MMPI-2 and MCMI-III), the following conclusions and recommendations
are made with a reasonable degree of psychological certainty:
1. [Plaintiff] appears to be fit for duty, based on psychological criteria. There is no evidence of a psychological or substance abuse diagnosis that would raise concern regarding his fitness for duty.
2. There are no psychological issues that would cause concern regarding the return of his service weapon. He does not present with any psychological problems that would raise concern regarding his judgment, and he does not present with any substance abuse problems.
3. Whatever problems he presented in the past, they were related to a dysfunctional relationship, and he is no longer in that relationship for the past year.
Plaintiff contested the disciplinary charges, and a municipal disciplinary hearing was conducted on June 30, July 29, and August 19, 2014. Montclair presented oral testimony from Captain Roberson and Dr. Schievella. Dr. Franklin testified for plaintiff, who also testified on his own behalf. Various written evidence was submitted, including monthly progress reports issued by plaintiff's treating psychologist, Dr. Rotondi, attesting to plaintiff's satisfactory progress. On November 4, 2013, Dr. Rotondi opined that plaintiff was "presently fit to return to duty. The charges against him have been dismissed and he has been found to be innocent of any legal infractions." In his February 6, 2014 narrative summary report, Dr. Rotondi wrote:
My assessment of [plaintiff] resulting from our ongoing contact reflected no indication or signs [of] any impairment of thought processes or any indications of any significant emotional conflict or disturbance at this time. He presented himself as a controlled but friendly and outgoing individual who in spite of being suspended without pay reflected no feelings of anger towards the [MPD]. He manifested the attitudes and values of mainstream society. There were no signs of any impulse control disorder or antisocial personality traits.
All the above is consistent with the results of Dr. Schievella's test findings concluding "that he is not suffering from anti-social or psychopathic tendencies." Further psychological test findings place him in the "above average range of intelligence and would indicate that [plaintiff] is quite capable of mastering the intellectual and academic demands required of police work." Further testing reflects the absence of psychopathology and suggests a "low risk for over-aggressive behavior or demeanor." Two additional tests "suggest that he is not suffering from anti-social or sociopathic personality disorders." Projective testing results "were absent of any hostile or destructive themes."
My understanding of the numerous "domestic violence" disputes were exaggerated examples of the many and not uncommon disputes that occur in the population but never involve police intervention. Yet police officers are
understandably held to a higher conduct of behavior than the general public which would make his suspension appropriate. But termination, I feel, is excessive in [plaintiff's] case.
Noteworthy in [plaintiff's] situation, all of the domestic violence charges against him were dismissed and he was never found guilty of any wrongdoing in these matters. On one occasion his partner was admitted into Mountainside Hospital after it was necessary for her to go subsequent to her having committed a domestic violence act against [plaintiff]. She was diagnosed as suffering from depression. This was not the first time she was admitted to a hospital for psychological reasons.
The hearing officer, in a comprehensive twenty-eight page written opinion, carefully reviewed the testimony and evidence presented during the hearing and determined that the MPD "established by a preponderance of the evidence that plaintiff is not fit for duty." That finding, "together with the determination that he not be re-armed, establishe[d] by a preponderance of the evidence that he cannot competently or efficiently perform the duties of a police officer." Accordingly, the hearing officer sustained the charge that plaintiff violated Section 2:1.3(2) (Incompetency or inefficiency) of the MPD Rules and Regulations. The hearing officer further concluded that the MPD "failed to present facts or argument sufficient to prove the [three] other charges."
In his decision, the hearing officer found Dr. Schievella "to be a credible and reliable witness." He noted that Dr. Schievella had interviewed and evaluated plaintiff on three separate occasions. "On the other hand, Dr. Franklin interviewed [plaintiff] only once, and that was on April 25, 2014, more than a year after the event."
The hearing officer concluded that "[t]he record does not permit a finding of fact or law that Officer Nebiar committed an act of domestic violence on June 5, 2013, or at any other time." He then elaborated:
On cross[-]examination Dr. Franklin conceded that he did not know what facts were presented to the [g]rand [j]ury and that he could not make a determination about what happened that night. Nonetheless, Dr. Franklin's report had included his unsupported view that the [g]rand [j]ury's "no bill" demonstrated that [A.C.'s] allegations were not credible. Dr. Franklin's misunderstanding casts a substantial [doubt] on the reliability of his conclusion. Dr. Franklin never interviewed [A.C.].
None of Dr. Schievella's reports rely on a conclusion that Officer Nebiar ever in fact perpetrated an act of domestic violence. Unlike Dr. Franklin, no report or testimony by Dr. Schievella relies on any credibility determination of anyone he has not interviewed, i.e. of anyone other than Officer Nebiar. What Dr. Schievella does rely on is his own broad professional experience and extensive interviews and testing of Officer Nebiar.
. . . .
Dr. Schievella's report and recommendations in [FDE 1] and [FDE 2] relied on undisputed accounts of Officer Nebiar being involved, as an alleged perpetrator or victim, in an unrefuted pattern of intensifying and escalating incidents of domestic violence. Even the extensive conditions and treatment imposed in [FDE 1] did not resolve the problem.
Procedurally, the hearing officer rejected plaintiff's contention that the charges should be dismissed because the MPD failed to file them within the forty-five-day time limitation established in N.J.S.A. 40A:14-147 (the forty-five-day rule). He reasoned:
[Plaintiff's] reliance on the [forty-five-] day rule is misplaced. The [MPD] has proved two key components: that pursuant to the psychologist reports[,] [plaintiff] was unfit for duty, and the related determination by the [ECPO] that he should not be re-armed. It was the coming together [of] these two elements on January 3, 2014, that finally provided "sufficient information" to support a determination that [plaintiff] is not capable of competent or efficient performance of his duties.The hearing officer also rejected plaintiff's assertion that the charges should be dismissed because the MPD failed to commence a hearing within thirty days of the filing of the complaint as mandated by N.J.S.A. 40A:14-149 (the thirty-day rule).
Chief Sabagh received the hearing officer's report and recommendation on December 19, 2014. That day, he notified plaintiff that his employment with the MPD would terminate on December 28.
Plaintiff challenged his termination in the Superior Court, Law Division, which conducted a de novo review on the record established below. After briefing by both parties, but without hearing oral argument, the trial court ordered that plaintiff be reinstated with back pay. The March 14, 2016 order further directed that the ECPO "immediately take any/all action necessary to determine the re-arming of the plaintiff."
In a thorough thirteen-page written opinion, the trial court found that Montclair failed to timely file, and conduct a hearing on, the disciplinary charges, in violation of the forty-five-day rule and the thirty-day rule, respectively. The court determined that "[plaintiff's] rights were prejudiced by the delay as he was suspended without pay." On the merits, the court found that "[t]he actions of the Township of Montclair were patently skewed against [plaintiff]." It discounted the testimony of Dr. Schievella and stated that it was instead "persuaded by the reports of the treating psychologist, Dr. Rotondi[,] and the testimony of Dr. Franklin." The court concluded that there was "not a scintilla of evidence to support" the disciplinary charges.
After Montclair's motion for reconsideration was denied, we stayed the trial court's orders and accelerated Montclair's appeal from those orders. Before us, Montclair argues that the trial court's decision was arbitrary and capricious, and that the court erred in holding that plaintiff's rights under the forty-five-day and thirty-day rules were violated.
II.
We begin our analysis by considering the relevant statutes governing disciplinary proceedings for police officers in non-civil service municipalities. N.J.S.A. 40A:14-147 to -151. A police officer cannot "be suspended, removed, fined or reduced in rank" without "just cause." N.J.S.A. 40A:14-147. An officer cannot be removed "for any cause other than incapacity, misconduct, or disobedience of rules and regulations . . . ." Ibid.
Under the forty-five-day rule, N.J.S.A. 40A:14-147,
[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 [forty-fifth] day after the date on which the person filing the complaint obtained sufficient information to file the matter upon which the complaint is based.Additionally, pursuant to the thirty-day rule, when an officer is suspended, a hearing on the charges must "be commenced within [thirty] days from the date of the service of the [complaint] . . . ." N.J.S.A. 40A:14-149.
Pursuant to N.J.S.A. 40A:14-150, a police officer employed by a department not subject to Title 11A, the civil service statute, "who has been tried and convicted upon any charge or charges, may obtain a review thereof by the Superior Court." "The court shall hear the cause de novo on the record below and may either affirm, reverse or modify such conviction." Ibid. The statute also allows "[e]ither party [to] supplement the record with additional testimony subject to the rules of evidence." Ibid.
III.
Montclair first argues that the record of the disciplinary hearing contained sufficient, competent evidence to prove that plaintiff was unfit for duty, and that the trial court's decision to the contrary was arbitrary, capricious, and unreasonable. In addressing this argument, we look first to the appropriate standard of review to be utilized by the Law Division when conducting a de novo review, and second to our role in reviewing the de novo proceeding.
As noted, the Law Division is obligated to conduct a de novo review of the record made during the disciplinary proceeding. N.J.S.A. 40A:14-150.
A de novo hearing provides a reviewing court with the opportunity to consider the matter "anew, afresh, [and] for a second time." In a de novo proceeding, a reviewing court does not use an "abuse of discretion" standard, but makes its own findings of fact. Conducting the review on the record and without the benefit of live testimony does not alter the standard. Rather, it is wholly consistent with the broad grant of power conferred upon the reviewing court to reverse, affirm or modify the disciplinary conviction.
. . . .
Although a court conducting a de novo review must give due deference to the conclusions drawn by the original tribunal regarding credibility, those initial findings are not controlling. On reviewing the record de novo, the court must only make reasonable conclusions based on a thorough review of the record. That process might include rejecting the findings of the original tribunal, which are necessarily based on an assessment of the demeanor and credibility of witnesses. To require a reviewing court to defer to the original findings would conflict with the fundamental purpose of a de novo proceeding under N.J.S.A. 40A:14-150: to ensure that a neutral, unbiased forum will review disciplinary convictions.
[In re Phillips, 117 N.J. 567, 578-80 (1990) (alteration in original) (citations omitted) (quoting Romanowski v. Brick Township, 185 N.J. Super. 197, 204 (Law Div. 1982), aff'd o.b., 192 N.J. Super. 79 (App. Div. 1983)).]
In contrast, however,
[a]n appellate court plays a limited role in reviewing the de novo proceeding . . . . [T]he court's "function on appeal is not to
make new factual findings but simply to decide whether there was adequate evidence before the [] [c]ourt to justify its finding of guilt." [State v. Johnson, 42 N.J. 146, 161 (1964).] Thus, unless the appellate tribunal finds that the decision below was "arbitrary, capricious or unreasonable" or "[un]supported by substantial credible evidence in the record as a whole," the de novo findings should not be disturbed. See Henry v. Rahway State Prison, [81 N.J. 571, 580 (1980).]
[Phillips, supra, 117 N.J. at 579 (alterations in original) (additional citations omitted).]
In Phillips, the Court considered disciplinary charges brought by the Township of Raritan against its police chief, Phillips. Id. at 569. The charges stemmed from Phillips' involvement in an automobile accident in which it was alleged that he was driving under the influence of alcohol (DUI). Ibid. Following a hearing, the Township Committee found him guilty by a preponderance of the evidence of three disciplinary infractions and demoted him to patrolman. Id. at 569.
Phillips appealed the Township's decision pursuant to N.J.S.A. 40A:14-150. Id. at 573. In the interim, he was acquitted in municipal court of the DUI traffic offense. Ibid. The Law Division, in a trial de novo on the disciplinary charges, vacated the Township Committee's findings on two of the three disciplinary infractions but affirmed Phillips' conviction of violating police departmental regulations because of his intoxication. Id. at 570. On appeal, a panel of this court "dismissed all charges against Phillips, reasoning that the departmental rule prohibitions against intoxication were inseparably linked to the statutory drunk-driving charge" on which Phillips had been acquitted. Ibid.
In its review of the matter, the Court in Phillips stressed that, in a disciplinary hearing, "it is necessary to establish the truth of the charges only by a preponderance of the evidence." Id. at 575. The Court noted that "[t]he [disciplinary] charges brought against Phillips were not based solely on the statutory DWI offense, but rather included police-department-rule violations, which dictate standards . . . wholly separate from N.J.S.A. 39:4-50." Id. at 581. In reinstating the findings of the trial court, the Court found those findings "were not inconsistent, or arbitrary, but were supported by substantial, credible evidence," and that the appellate panel erred in disturbing those findings. Ibid.
More recently, the Court again considered the termination of a police officer's employment in a non-civil service jurisdiction in Ruroede v. Borough of Hasbrouck Heights, 214 N.J. 338, 343 (2013). In that case, Ruroede, a Hasbrouck Heights police officer, was suspended and ultimately terminated from his employment based on numerous charges originally stemming from an off-duty verbal and physical altercation outside a restaurant and bar. Ibid. The altercation involved an officer from a neighboring town, who did not testify at Ruroede's disciplinary hearing. Id. at 346, 357-58. Ruroede alleged the other officer was the aggressor in the dispute. Id. at 347. The Borough required Ruroede to be evaluated by Dr. Schievella, who concluded he was unfit for duty. Ibid. Ruroede retained an independent psychologist who opined that he was fit for duty, and that even if he had aggression issues, anger management counseling could address them. Id. at 348.
In a written decision, the hearing officer concluded that Dr. Schievella's evaluation carried more weight because he had expertise in evaluating police officers; that Ruroede had initiated the dispute and lied to internal affairs officers about it; and that he engaged in inappropriate conduct unbecoming a police officer. Id. at 350-51. The hearing officer recommended Ruroede's termination, and the Borough adopted that recommendation. Id. at 351.
Ruroede then challenged his termination in the Law Division, which reinstated him and remanded for a new disciplinary hearing. Id. at 352. The trial court found the disciplinary hearing was deficient because the hearing officer relied on written rather than oral testimony from several witnesses. Ibid. On appeal to this court, the panel found that the trial court properly reversed Ruroede's termination because the disciplinary hearing did not contain sufficient, competent evidence, and that Ruroede should have had the right to cross-examine adverse witnesses. Ibid.
In reversing, our Supreme Court exercised original jurisdiction under Rule 2:10-5, and concluded the Borough's proofs were sufficient to prove the disciplinary charges by a preponderance of the evidence and that the charges supported Ruroede's termination. Id. at 361-63. The Court emphasized that "[t]he Law Division should have reviewed [the] record and determined whether there was a residuum of competent evidence to sustain the charges that the Borough brought against Ruroede." Id. at 360. In the Court's view, "[t]he Law Division's attention was diverted by the fact that this record did not include oral testimony from [the other officer] concerning the altercation, even though Ruroede admitted that a physical altercation did indeed occur when the police initially investigated the matter . . . ." Id. at 357-58.
The Court concluded that "Ruroede suffered no due process deprivation even though he was unable to confront [the other officer] about who started the altercation." Id. at 359. Further, the Court ruled:
It is not material whether we accept [the other officer's] or Ruroede's version of how the altercation began. The differences between the two pale in comparison to the bigger picture: the proofs in this record establish that Ruroede acted inappropriately for a person holding the public trust as a police officer and public employee.
[Id. at 362.]
We concede that plaintiff's circumstances present a closer case than Ruroede's. Nonetheless, despite the limited scope of our review, we are compelled to conclude that certain significant factual and legal inaccuracies in the trial court's findings similarly warrant reversal here.
The trial court criticized various aspects of the MPD's investigation into plaintiff's fitness and concluded that "[t]he actions of Montclair were patently skewed against [him]." Initially, the judge noted that "[n]owhere does [Montclair] indicate in any report or letter that an attempt was made to contact the complainant, [A.C.]." However, Captain Roberson unequivocally testified at the hearing that, at least in connection with the February 21, 2013 domestic violence incident where plaintiff was arrested for simple assault, he interviewed both plaintiff and A.C.
The trial judge next noted that when Chief Sabagh wrote to the ECPO on October 24, 2013 with his report and recommendations on re-arming, it was "glaringly obvious that [he] did not send the report from [plaintiff's] clinician at High Focus, [or] the reports from Drs. Rotondi and Franklin." At that time, however, Dr. Rotondi had only issued some perfunctory monthly progress reports, and he did not opine that plaintiff was fit to return to duty until November 4, 2013, or issue his narrative summary report until February 6, 2014. Similarly, Dr. Franklin first evaluated plaintiff on April 25, 2014, and issued his report on June 16, 2014. Thus, rather than withholding this favorable information, as the trial court determined, the record supports a contrary conclusion that these reports were largely unavailable when Sabagh submitted his report and recommendations to the ECPO. Moreover, Dr. Schievella's October 11, 2013 report that Sabagh submitted to the ECPO expressly noted that plaintiff had complied with the recommendations for psychological counseling and alcohol abuse treatment that were contained in his first fitness for duty report.
The trial court weighed the opinions of the competing experts, as it was required to do. We acknowledge that where qualified experts present opposing opinions on disputed issues, the trier of fact may accept the testimony or opinion of one expert and reject the other. Angel v. Rand Express Lines, Inc., 66 N.J. Super. 77, 85-86 (App. Div. 1961). This principle, however, flows out of the well-known proposition that jurors, or a judge in a bench trial, have the best "opportunity to hear and see the witnesses and to get a [feel] for the case that the reviewing court [cannot] enjoy." Twp. of W. Windsor v. Nierenberg, 150 N.J. 111, 132 (1997). Although not bound by the hearing officer's credibility assessments, the trial court, in its de novo review, lacked the benefit of seeing the witnesses and observing their demeanor that the hearing officer enjoyed.
Here, the trial court found that "[w]here there is a conflict in the testimony of medical experts, the court will give greater weight to that of a treating physician," in this case Dr. Rotondi. While we do not fault this analysis, we note that Dr. Rotondi, in his narrative report, although deeming plaintiff's termination excessive, termed his suspension "appropriate."
The trial court further found "most disturbing . . . was that Dr. Schievella never contacted any complainant for information related to the accusations against [plaintiff]." To the extent that this is a valid criticism, the evaluations conducted by Dr. Franklin and Dr. Rotondi suffer from the same infirmity. Moreover, of the three experts, Dr. Schievella was the only one who viewed the DVD containing the two recorded police interviews of A.C. during which she described being assaulted, displayed her injuries, and later recanted her allegations.
The trial judge also noted that "[plaintiff] was convicted of violating the [MPD] rules based upon allegations of domestic violence without having the opportunity to confront or cross-examine his accuser." However, as Ruroede instructs, A.C. was not required to testify at the hearing, nor was it essential to resolve whether she or plaintiff was the aggressor in their numerous domestic disputes. Nor is it determinative that plaintiff was never criminally convicted of domestic violence charges. Rather,
[w]here the conduct of a public employee which forms the basis of disciplinary proceedings may also constitute a violation of the criminal law, [] the absence of a conviction, whether by reason of nonprosecution or even acquittal, bars neither prosecution nor finding of guilt for misconduct in office in the disciplinary proceedings.
[Phillips, supra, 117 N.J. at 575 (alterations in original) (quoting Sabia v. City of Elizabeth, 132 N.J. Super. 6, 12 (App. Div. 1975)).]
In this regard, the trial court found that "[i]n his fitness for duty report, Dr. Schievella[] takes every allegation by [A.C.] as the truth even though he never met or spoke to her and every statement made by [plaintiff] as untruthful." This finding distorts Dr. Schievella's report, and ignores his testimony to the contrary. In his report, Dr. Schievella stated:
While it is beyond the scope of this examiner to assess the culpability for the actions in these events, the repetitiveness of [plaintiff's] explanations are suspect.At the hearing, Dr. Schievella testified as follows:
Whether an aggressor or a victim cannot be presently ascertained. What remains, however, is the subject continuing to engage in a relationship in which aggression and violence appear to be increasing from incident to incident.
Q. You just testified that you did not make a credibility determination of [A.C.'s] status, correct?
A. Correct.
Q. . . . If you did not make a finding as to [A.C's] credibility, then would you agree, it is not appropriate to base any of your conclusions about [plaintiff's] fitness on any of those statements?
A. My decision regarding his fitness was not based on her credibility or lack of credibility, it was based on [plaintiff's] reports.
Q. But you - -
A. It was not based on [A.C.'s] - - I had no way of assessing her credibility or lack of credibility. So the decision to find him fit or unfit was not based on her credibility.
In the end, as in Ruroede, Dr. Schievella's fitness determination did not turn on whether or not plaintiff was the aggressor in the various domestic disputes. Rather, Dr. Schievella explained the basis for his opinion as follows:
A. . . . I will emphasize now and probably later that this is not just simply an issue of a problematic relationship with one individual, [A.C.]. But that this is really representative of a pattern of him entering into more and more dangerous kinds of situations with more than one female.
Q. And now you perform fitness for [duty evaluations] for law enforcement personnel?
A. Yes.
Q. Why [are] the problems within relationships and several relationships, as you point out, why is that essentially a reason as to why one might be unfit to be a police officer, if you could explain?
A. Well, [] one[] very fundamental and basic reason is that you have access to deadly weapons and you are in an unstable environment, and . . . I think I mentioned at certain points in these reports that it is beyond my purview to place the full onus on one individual or the other, but simply to say that . . . this is a volatile environment in which he has chosen to live. And so . . . to place a lethal weapon in that situation puts either the other individual or [plaintiff] at risk of one or the other using that weapon to do deadly harm.
It's also reflective of putting the public at jeopardy in terms of his abusing his powers, his police authority in furthering his relationships with women that may be particularly vulnerable. And that also is an inappropriate use of, if not force, authority.
And so these are characteristics that . . . appear to have evolved over a long period of time and present a very substantial risk.
. . . .
Q. Explain why at this point you feel [termination is] the necessary recommendation to the police department.
A. Well, I helieve, as I've stated hefore, this is long-standing in nature. This dates back to . . . late adolescence as he is joining the Marines in terms of his behaviors and continues to move forward throughout his life in terms of increasingly unstable relationships. And has basically culminated in [a] very unstable and very unsafe relationship with [A.C.] [] despite very clear warnings that he has received.
I mean he acknowledges at one point understanding that Captain Roberson has told him very clearly that if you get into any other domestic disputes you were going to be out of a job, that was very clearly stated and he understood that, [yet] he continued to pursue the relationship with [A.C.].
He was afforded treatment to be able to come to terms with how he might deal in whatever fashion he chooses regarding this relationship and other relationships. That did not seem to be ameliorating the situation, did not seem to be improving the situation. And seven months later we find an escalation to what appears to be physical assault.
So he's been afforded treatment. He[] [has] not benefited. In many respects [he] seems to have worsened. And therefore leaves no alternative but to no longer be afforded the privileges of being a police officer.
In sum, we conclude that a number of the trial court's key factual findings in its de novo review are contradicted by the record. We further conclude that the Borough's proofs were sufficient to prove plaintiff's unfitness by a preponderance of the evidence and support the termination of his employment as a police officer.
IV.
We next address Montclair's challenges to the trial court's rulings that the forty-five-day and thirty-day rules were violated. To the extent that the trial court's decision implicates legal principles, we independently evaluate those legal assessments de novo. See Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995); Finderne Mgmt. Co., Inc. v. Barrett, 402 N.J. Super. 546, 573 (App. Div. 2008), certif. denied, 199 N.J. 542 (2009).
A.
Montclair argues that the trial court erred in holding that it violated the forty-five day rule established in N.J.S.A. 40A:14-147 because it filed the disciplinary charges only seven days after receiving the January 3, 2014 letter from the ECPO confirming that plaintiff should not be re-armed. Montclair also argues that this statutory limitation does not apply in instances where the basis of the suspension or termination is unfitness for duty. We agree.
Under N.J.S.A. 40A:14-147:
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. The 45-day time limit shall not apply if an investigation of a law enforcement officer for a violation of the internal rules or regulations of the law enforcement unit is included directly or indirectly within a concurrent investigation of that officer for a violation of the criminal laws of this State. The 45-day limit shall begin on the day after the disposition of the criminal investigation.
. . . .
A failure to comply with said provisions as to the service of the complaint and the time within which a complaint is to be filed shall require a dismissal of the complaint.
Like its counterpart applicable to State Police disciplinary matters, N.J.S.A. 53:1-33, the quoted statute balances "three competing considerations . . . the need for a complete and thorough internal investigation, the need for deference to a related criminal investigation, and the interests of the particular [officer] to be free of undue delay in being charged." Roberts v. State, Div. of State Police, 191 N.J. 516, 522 (2007) (construing the identical time limitations of N.J.S.A. 53:1-33).
The forty-five-day limitation period to file charges runs from the date when the employer receives sufficient information upon which to base a complaint, or from the conclusion of a criminal investigation or the case that results from it. See Aristizibal v. City of Atlantic City, 380 N.J. Super. 405, 427-28 (Law Div. 2005). In Roberts, supra, 191 N.J. at 525-26, the Court held that the police agency could resume its internal investigation after the conclusion of the criminal matter and the forty-five-day limitation period would not run until "sufficient information" was available to the police authority in the form of an internal investigative report.
In the present case, plaintiff was arrested and charged with several criminal offenses arising from the June 5, 2013 domestic dispute with A.C. One week later, the ECPO advised Chief Sabagh of its criminal investigation, and that the MPD should cease its administrative investigation. On September 27, the ECPO notified Sabagh that although the grand jury declined to indict plaintiff, plaintiff was required to undergo another fitness for duty examination pursuant to the Attorney General Guidelines before any recommendation could be made as to whether he should be re-armed. Dr. Schievella's report from that evaluation is dated October 11, 2013, and Sabagh promptly forwarded it to the ECPO with his recommendations less than two weeks later. It was not until January 3, 2014, that the ECPO completed its review and determined that plaintiff should not be re-armed. At that point, Montclair possessed "sufficient information" in the form of the ECPO determination, and it timely filed the disciplinary charges on January 10.
Even if we are mistaken in this conclusion, we note that the forty-five-day limitation in N.J.S.A. 40A:14-147:
pertains to alleged violations of "internal rules and regulations established for the conduct of [the] law enforcement unit[.]" However, a violation of "internal rules and regulations" is only one of the grounds upon which a police officer may be disciplined. The statute also allows a police officer to be removed for incapacity or misconduct but imposes no time constraints on asserting a complaint seeking removal on those grounds.
[McElwee v. Borough of Fieldsboro, 400 N.J. Super. 388, 394 (App. Div. 2008) (alterations in original).]
Here, plaintiff was convicted of incompetency or inefficiency, which clearly implicated his lack of fitness and resulting incapacity to perform his duties as a police officer. Therefore, the forty-five-day requirement in N.J.S.A. 40A:14-147 did not apply and the statute did not require the dismissal of the charges.
B.
Montclair argues that it complied with N.J.S.A. 40A:14-149 by scheduling the hearing to commence within thirty days of the service of the disciplinary charges. Montclair contends that it was plaintiff who requested an adjournment of the hearing date, and that, far from suffering prejudice attributable to the delay, the additional time enabled plaintiff to obtain an evaluation report from his expert psychologist, Dr. Franklin. Again, we agree.
N.J.S.A. 40A:14-149 provides:
If any member or officer of the police department or force shall be suspended pending a hearing as a result of charges made against him, such hearing, except as otherwise provided by law, shall be commenced within [thirty] days from the date of the service of the copy of the complaint upon him, in default of which the charges shall be dismissed and said member or officer may be returned to duty.
In concluding that Montclair violated N.J.S.A. 40A:14-149 by failing to commence a hearing within thirty days of the service of the complaint upon plaintiff, the trial court relied on In re Frey, 160 N.J. Super. 140, 143 (App. Div. 1978). In Frey, we concluded that "[t]he mere failure to hold the hearing within the [fifteen] to [thirty]-day period [applicable under N.J.S.A. 40A:14-147 to a police officer who has not been suspended pending a hearing] did not warrant a dismissal of the departmental charge against Frey . . . ." Here, the trial court distinguished Frey by pointing out that the Frey court expressly conditioned its holding on the fact that Frey had not been suspended prior to or concurrent with the filing of the complaint, and thus "in the absence of a suspension from the Police Department pending the hearing," strict compliance with the thirty-day rule was unnecessary. The trial court noted that, in the present case, plaintiff was suspended pending the hearing, and that this distinction compels a different result under the Frey rationale.
However, Frey is clearly distinguishable because, in that case, the hearing "was adjourned due to the unavailability of the hearing officer and the complaining witness." Frey, supra, 160 N.J. Super. at 141. Here, however, Montclair originally scheduled the hearing within the mandated thirty-day period, and it was plaintiff's counsel who requested an adjournment. Accordingly, Montclair should not be penalized, nor should plaintiff benefit, from the delay that plaintiff sought in preparing to defend against the disciplinary charges.
Reversed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION