Opinion
DOCKET NO. A-2985-13T3
02-13-2015
DONALD RAMBO, Plaintiff-Appellant, v. TOWNSHIP OF LOWER ALLOWAYS CREEK, Defendant-Respondent.
Quinlan, Nigro & Kempf, L.L.C., attorneys for appellant (Patricia M. Nigro, on the brief). Parker McCay, P.A., attorneys for respondent (Elizabeth M. Garcia, of counsel; Stacy L. Moore, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fasciale, Hoffman and Whipple. On appeal from Superior Court of New Jersey, Law Division, Salem County, Docket No. L-0025-13. Quinlan, Nigro & Kempf, L.L.C., attorneys for appellant (Patricia M. Nigro, on the brief). Parker McCay, P.A., attorneys for respondent (Elizabeth M. Garcia, of counsel; Stacy L. Moore, on the brief). PER CURIAM
Plaintiff Donald Rambo appeals from the January 30, 2014 Law Division order upholding the decision of his employer, defendant Township of Lower Alloways Creek ("Township"), to suspend plaintiff for two days without pay. We affirm.
I.
The underlying facts are undisputed. Plaintiff is a police officer employed by the Township Police Department ("Department"). Plaintiff's duties include processing and issuing firearm permits to Township residents.
Plaintiff has a history of prior disciplinary infractions. In 2009 and 2010, the Township gave plaintiff two written reprimands for improper handling of a motor vehicle stop and improper handling of confidential reports and evidence. In December 2010, the Township suspended plaintiff for two days for "Insubordination, Improper Conduct, Criticism of an Official Act, [and] Creating an Intimidating, Hostile, Offensive Work Environment[.]" In July 2011, the Township deducted two days from plaintiff's vacation time for abuse of sick time.
As to the matter under review, between August 1, 2005, and December 31, 2008, plaintiff issued 122 firearm permits without running required background checks. One of those permits was issued to an individual with a prior assault conviction involving domestic violence, and was therefore disqualified from obtaining a permit. On September 24, 2012, after this oversight came to the attention of State Police, the Township served plaintiff with a notice of discipline alleging neglect and failure to perform duties, and imposing a two-day suspension without pay.
Plaintiff requested a hearing on the charges. Lacking any official procedure codified in the Township Code, the Township appointed a hearing officer. On December 21, 2012, the hearing officer held a hearing, but no recording or transcript was made. At the hearing, the Township presented no evidence that the Department properly supervised or trained plaintiff on firearm permit procedures. According to the hearing officer, although plaintiff's supervisors countersigned every permit plaintiff issued, he was not subject to "any audits, spot checks, or performance evaluations . . . ." Notably, the parties agree that plaintiff's prior disciplinary record was not provided to the hearing officer.
On January 4, 2013, the hearing officer issued a report. He found that plaintiff failed to comply with the procedures and guidelines for the issuance of firearms. However, noting that the Township failed to provide any evidence of oversight or training, he concluded, "I hereby reduce the penalty to a written warning to be placed in [plaintiff]'s personnel file."
On January 17, 2013, the Township Committee informed plaintiff that it would "discuss [the] next action[,] if any, with regard to [the hearing officer's] determination," at its meeting on January 22, 2013. Plaintiff attended the meeting, but declined to make a statement. The Township Committee reviewed plaintiff's disciplinary record, and after discussion in a closed executive session, adopted the hearing officer's "determination of facts . . . ." However, in light of plaintiff's disciplinary record, the Township Committee imposed the two-day suspension, as originally proposed.
Plaintiff responded by filing a complaint in lieu of prerogative writs against the Township in the Law Division, seeking review of the disciplinary action under N.J.S.A. 40A:14-150, and demanding dismissal of the complaint or modification of the punishment. The trial court heard oral argument on October 24, 2013. Plaintiff argued that, absent any procedure set forth in the Township Code, the hearing officer's determination was binding upon the Township.
At the conclusion of oral argument, the trial court noted that, "[c]learly, the facts are not in dispute." Finding the issue to be purely legal, the court held that the Township was not bound by the hearing officer's decision. Plaintiff interrupted the court's decision and argued that, absent a record of the hearing on December 21, 2012, he was entitled to a remand in order to reconstruct the record for the court's de novo review. By order entered on November 8, 2013, the court confirmed its initial ruling, but scheduled further oral argument on the remand issue.
The trial court heard oral argument on January 16, 2014. Noting that there was no dispute as to the factual basis giving rise to the penalty, the court found no basis for a remand or further hearing. Therefore, the court denied plaintiff's request for a remand and, on January 30, 2014, entered an order affirming the two-day suspension imposed by the Township. This appeal followed.
II.
On appeal, plaintiff argues that the hearing officer's decision was binding on the Township, and that the trial court abused its discretion in denying his request for a remand. We disagree.
"The disciplinary system contemplated by the Legislature provides a police officer with well-defined procedures for an efficient and fair hearing process on alleged charges against the officer." Ruroede v. Borough of Hasbrouck Heights, 214 N.J. 338, 355-56 (2013).
The officer is provided with multiple opportunities to have the relevant evidence reviewed and to present his or her own evidence to ensure a fair and meaningful result: an officer can elect to submit to a disciplinary hearing before a neutral party instead of having a departmental hearing, see [N.J.S.A. 40A:14-147]; an officer can
seek a de novo review and supplement the evidentiary record in Superior Court, see N.J.S.A. 40A:14-150; and an officer can seek reinstatement or back pay depending on the eventual outcome, see N.J.S.A. 40A:14-149, -149.1, -151. Finally, an officer has the opportunity for appellate review in accordance with the Court Rules governing practice before the Appellate Division, see R. 2:2-3(a), or this Court, as in the present appeal, see R. 2:12-3.
[Id. at 356.]
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 Disciplinary Procedures of Phillips, 117 N.J. 567, 578 (1990) (alteration in original) (quoting Romanowski v. Brick Twp., 185 N.J. Super. 197, 204 (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, and instead makes its own findings of fact. Ibid. (citing Romanowski, supra, 185 N.J. Super. at 204).
However, 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 if it is unsupported by substantial credible evidence in the record. Ibid.
A.
We first address the effect of the hearing officer's decision. In Padovano v. Borough of E. Newark, 329 N.J. Super. 204 (App. Div.), certif. denied, 165 N.J. 489 (2000), we addressed the same issue presented here. There, the defendant borough served the plaintiff, Police Captain Michael Padovano, with disciplinary charges. Id. at 208. Padovano requested a hearing on the charges. Ibid.
The hearing officer issued a report sustaining several charges, and recommending Padovano "be removed from the force." Ibid. Padovano petitioned the hearing officer for reconsideration, and after another hearing, the hearing officer reduced the recommended punishment to a 120-day suspension. Ibid. The borough filed an action seeking a declaratory judgment that the hearing officer could not "entertain an application for reconsideration[,]" and Padovano filed an "action seeking reinstatement to the police force." Id. at 208-09. At the time of the suit, the municipality "had yet to take any formal action in response to the hearing officer's report . . . ." Id. at 216.
Notwithstanding the fact that "neither party supplied . . . a copy of the [hearing officer's] formal appointment[,]" id. at 215, we concluded:
[T]he status of the hearing officer, who was independent of either party, requires a conclusion that his determinations about an appropriate penalty were no more than recommendations, which the [b]orough could elect to adopt or disregard in its sound discretion. Adopting Padovano's argument would require a conclusion that the [b]orough intended to vest in an independent party the decision whether a municipal employee should be retained or dismissed. We see nothing to indicate that the [b]orough intended to vest the hearing officer with such sweeping powers or that it was authorized by statute to do so.
[Id. at 219.]
Absent any evidence that the Township intended to invest the independent hearing officer with authority over Department discipline, we conclude that, as in Padovano, the hearing officer's determinations "were no more than recommendations, which the [Township Committee] could elect to adopt or disregard in its sound discretion." Ibid. Accordingly, we affirm the trial court's November 8, 2013 order finding the hearing officer's decision "to be a recommendation," not binding on the Township.
B.
Regarding the remand issue, N.J.S.A. 40A:14-150 provides that the trial court "may either affirm, reverse or modify [the disciplinary] conviction." However, while the court may allow either party to supplement the record with additional testimony, it cannot remand. Ruroede, supra, 214 N.J. at 344. Indeed, "a remand . . . [by] the Law Division exceed[s] the statutorily authorized dispositions [of] these de novo appeals." Ibid. The Legislature designed N.J.S.A. 40A:14-150 "to bring police disciplinary actions to a swift, efficient, and final resolution[, and] . . . remand thwart[s] those salutary goals." Ibid.
Plaintiff does not challenge the underlying facts, but nevertheless demands a remand in order to recreate the record. However, plaintiff's appeal arises out of the final determination of the Township Committee, and not out of the report issued by the hearing officer. While the trial court lacked a transcript or recording of the hearing, it reviewed the record presented to the Township Committee, and affirmed the Township's decision. Plaintiff has never disputed the essential facts upon which the Township Committee relied in its decision. Moreover, we note that plaintiff's apparent disinterest in supplementing the record before the trial court belies his argument that the record was incomplete. The trial court correctly denied plaintiff's remand request.
We are convinced that there is sufficient credible evidence in the record to support the trial court's finding that, "for a breach as serious as this one . . . with potentially significant repercussions[,]" the two-day suspension of plaintiff for his admitted violations of the gun permitting process was "fair and appropriate." Noting plaintiff's prior disciplinary record, the judge added, there is "nothing in the sentence that causes me to be alarmed as to its severity. It certainly is not severe." The court also correctly rejected the argument that the hearing officer's decision was binding on the Township.
Our Supreme Court has previously cautioned that in matters of police discipline, we must be careful not to substitute our judgment for the judgment exercised by those charged with making disciplinary decisions. In re Carter, 191 N.J. 474, 486 (2007). We are satisfied from this record that plaintiff's two-day suspension was not "so disproportionate to the offense" that it is "shocking to one's sense of fairness." In re the Revocation of the License of Polk, 90 N.J. 550, 578 (1982) (citation and internal quotation marks omitted); accord In re Herrmann, 192 N.J. 19, 28-29 (2007).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION