In the Matter of James Cassidy DOP Docket No (Merit System Board, decided December 15, 2004)

Transcription

1 In the Matter of James Cassidy DOP Docket No (Merit System Board, decided December 15, 2004) The appeal of James Cassidy, a Police Sergeant with the Township of Scotch Plains, concerning his removal effective March 28, 2003, on charges, was heard by Administrative Law Judge Jesse H. Strauss (ALJ), who rendered his initial decision on November 3, Exceptions were filed on behalf of the appellant and exceptions and cross exceptions were filed on behalf of the appointing authority. Having considered the record and the ALJ s initial decision, and having made an independent evaluation of the record, the Merit System Board (Board), at its meeting on December 15, 2004, accepted and adopted the Findings of Fact and Conclusions of Law as contained in the attached ALJ s initial decision, but did not adopt the recommendation to modify the removal to a six-month suspension and a demotion to the title of Police Officer. Rather, the Board upheld the removal. DISCUSSION The appellant was charged with misconduct, conduct unbecoming a public employee, sexual harassment, violations of various rules and regulations of the Scotch Plains Police Department, and other sufficient cause. Specifically, it was asserted that the appellant engaged in a sexual relationship, both on and off duty, with a subordinate Police Officer, R.S. Upon the appellant s appeal, the matter was transmitted to the Office of Administrative Law (OAL) for a hearing as a contested case. In his initial decision, the ALJ addressed several procedural arguments raised by the appellant. Upon learning of R.S. s allegations regarding the misconduct of the appellant and other officers in the Scotch Plains Police Department, the appointing authority employed an independent investigator, Elizabeth Gramigna, Esq., to thoroughly investigate the incidents. Prior to the commencement of the hearing at the OAL, the appellant sought an unredacted copy of the investigation report prepared by Gramigna. The appellant contended that the entire contents of this report were relevant to the credibility of R.S. While the appointing authority provided those sections of the report and of R.S. s statement directly related to the charges against the appellant, the appointing authority objected to complete disclosure of the report, since large portions of it had no relevance to the instant matter. Rather, the remainder of the Gramigna report contained findings and discussion regarding other officers alleged

2 misconduct and involvement with R.S. Upon an in camera inspection of the Gramigna report and related documents, the ALJ concluded that certain portions of these documents were irrelevant to the merits of the charges and to the issue of R.S. s credibility and were properly redacted. The appellant also contended that the disciplinary action against him was null and void, since it was taken by Township Manager Thomas Atkins, rather than the Police Chief. In this regard, the appellant argued that N.J.S.A. 40A: provides that the governing body of a municipality may, by ordinance, create and establish a police force and provide for a line of authority relating to the police function and for the discipline of its members. This statute also provides that the Police Chief, if such position is established, shall be the head of the police force and shall be directly responsible to the appropriate authority for the efficiency and routine day-today operations of the police force. The appellant contended that the fact that the Police Chief is empowered to directly oversee the day-to-day operations of the police force and to discipline its members necessarily removes any such power from the Township Manager. However, the ALJ found that the statute expressly required the opposite conclusion. Specifically, N.J.S.A. 40A: also provides that nothing herein contained shall prevent the appropriate authority, or any executive or administrative officer charged with the general administrative responsibilities within the municipality, from examining at any time the operations of the police force or the performance of any officer or member thereof. Further, the ALJ noted that Township Ordinance also provides that the Police Chief shall be responsible to the Township Manager. Thus, the ALJ concluded that the Police Chief s authority to impose discipline on subordinates was not exclusive, and similar authority was vested in the Township Manager. Finally, the appellant contended that the appointing authority violated the 45-day rule set forth in N.J.S.A. 40A: Specifically, following the issuance of the Gramigna report on or about March 20, 2002, a Preliminary Notice of Disciplinary Action (PNDA) was issued on April 16, 2002, setting forth the five disciplinary charges against him and specifying that the appellant engaged in improper conduct while on duty with a subordinate officer. Subsequently, on July 3, 2002, an amended PNDA was issued, which contained the same disciplinary charges but set forth substantially more detailed specifications referring to specific instances in which the appellant engaged in sexual activity with R.S. The appellant argued that this amended PNDA was issued more than 45 days after the Gramigna report. Based on this alleged violation of N.J.S.A. 40A:14-147, the appellant asserted that the charges against him must be dismissed. However, the ALJ determined that the amended PNDA, which simply clarified and expanded upon the conduct forming the basis for the disciplinary charges, related back to the timely

3 April 16, 2002 PNDA. The ALJ also found it significant that the appellant had reviewed those portions of the Gramigna report relating to his relationship with R.S. even before issuance of the April 16, 2002 PNDA. Thus, he was fully aware of the allegations against him supporting the disciplinary charges. With regard to the merits, the ALJ set forth that the appellant did not dispute that he was involved in a sexual relationship with his subordinate, R.S., and he admitted that the two engaged in sexual relations on multiple occasions in the summer and autumn of 2000, often in public locations such as public parks and parking lots. While the appellant denied that any of these encounters occurred while he was on duty and in uniform, R.S. described in detail about 10 occasions where they had sexual intercourse while the appellant was on duty. Several of these instances occurred in or just outside the appellant s patrol car. R.S. also testified that, on numerous occasions when they were both on duty, the appellant touched her in a sexual manner and kissed her. Based on his assessment of the credibility of the witnesses, the ALJ found that the appellant engaged in sexual relations with his subordinate while on duty, including several episodes of groping and intimate touching while R.S. was also on duty. In finding R.S. to be a credible and reliable witness, the ALJ noted her detailed recollection of the incidents and her candid admissions as to her personal shortcomings. The ALJ also dismissed attempts by the appellant to impeach the credibility of R.S. Specifically, while the appellant suggested that R.S. fabricated the instant charges and similar charges against other officers in order to negotiate a favorable financial settlement with the Township, the ALJ noted that R.S. was reluctant to come forward with her allegations of sexual misconduct against other officers. Rather, the allegations surfaced in discussions between R.S. and a psychiatrist to determine her fitness for duty. Noting that there was no dispute that the appellant and R.S. had a sexual relationship, the ALJ found that falsely claiming that the sexual encounters occurred while the appellant was on duty would not bolster the appellant s sexual harassment claim against the Township. The ALJ also determined that there was no indication in the content of R.S. s testimony or in her demeanor that she had any vindictive motives against the appellant. In fact, the ALJ emphasized that her testimony was replete with many complimentary attributions to [the appellant]. On the other hand, the ALJ found that the appellant s testimony lacked credibility and was frequently inconsistent with previous statements he had given during the investigation of this matter. For example, in his testimony at the OAL hearing, the appellant denied that he had engaged in any sexual activity or touching while on duty. However, in a previous statement given during the investigation, the appellant indicated that he and R.S. would occasionally grope each other while on duty, and that he would slap her on the ass. Based on his

4 findings, the ALJ upheld the charges of conduct unbecoming a public employee, misconduct, violation of departmental rules and regulations and other sufficient cause. However, the ALJ dismissed the charge of sexual harassment, noting that the relationship between the appellant and R.S. was consensual. The ALJ also noted that the existence of such a consensual relationship between a supervisor and a subordinate was not a per se violation of the Township s policy against sexual harassment. With regard to the penalty, the ALJ noted that the appellant s prior disciplinary record consisted of only three minor disciplinary actions in his 12 year career, two of which occurred in 2001 after the incidents at issue in the instant matter. Further, the ALJ considered the opinions of former Police Chief Thomas O Brien and current Police Chief Marshall Nelson, who indicated that they recommended a penalty less than removal. Finally, the ALJ noted the significance of the dismissal of the sexual harassment charge. While the ALJ emphasized that the appellant s conduct was egregious and warranted a substantial penalty, he concluded that a six-month suspension, coupled with a demotion to the title of Police Officer, was the appropriate penalty. In his exceptions to the ALJ s initial decision, the appellant asserts that the failure to provide him with an unredacted copy of the Gramigna report constituted a violation of due process. The appellant argues that the entire contents of this report should have been disclosed and were relevant to the merits of the charges against him and could have been useful in impeaching the credibility of R.S., since the report addressed her allegations against other officers and whether such allegations were substantiated. In response, the appointing authority contends that the ALJ properly struck a balance between the confidential nature of the contents of the Gramigna report and the appellant s need for full discovery in defending himself against the present disciplinary charges. On this point, the Board is not persuaded by the appellant s arguments. Initially, there is nothing in the record to suggest that the appellant was deprived of any part of the investigation report which pertained directly to the charges against him or to the credibility of R.S. Moreover, it must be noted that the only dispute present in this matter was whether or not the appellant was on duty when he engaged in sexual activities with R.S. There is absolutely no dispute that a sexual relationship existed. Even without knowledge of the redacted portions of this report, the appellant proceeded with significant attacks on the general character of R.S. in an attempt to impeach her credibility, all of which were rejected by the ALJ. The Board is not convinced that the ALJ s credibility determinations in the instant matter would have been different if there was evidence that R.S. brought an unsubstantiated allegation of misconduct against another officer. Thus, there is simply nothing in the record to

5 suggest that, even if the Gramigna report contained such information, the appellant was prejudiced by the ALJ s denial of his request for access to the entire report. The appellant also contends that the disciplinary charges against him are null and void, since the Township Manager had no authority to bring them against him. Specifically, the appellant maintains that N.J.S.A. 40A:14-118, in conjunction with the ordinances adopted by the Township, vest the authority to impose disciplinary action on members of the police force with only the Police Chief. Since, in this case, the Township Manager issued the Notices of Disciplinary Action, the appellant maintains that such action was void as the Township Manager lacked the power to do so. On this issue, the appellant relies on Grasso v. Borough Council of Glassboro, 205 N.J. Super. 18 (App. Div. 1985) and Marjarum v. Township of Hamilton, 336 N.J. Super. 85 (App. Div. 2000). However, it must be noted that the cited cases involved municipalities that failed to adopt the necessary ordinance to implement the provisions of N.J.S.A. 40A: In contrast, in the instant matter, the Township adopted a series of ordinances implementing N.J.S.A. 40A: and establishing a line of authority for its Police Department. Significantly, Section (a) of the Township s Ordinances states that the Township Manager is the appropriate authority pursuant to N.J.S.A. 40A:14-118, and Section states that the Police Chief shall be responsible to the manager, and through him, to the township council, for the conduct, efficiency and management of the department. In addition, Section empowers the Township Manager to make his own investigation to determine whether the facts [underlying disciplinary charges] warrant the removal. Thus, the implementing ordinances reflect an intent that the Township Manager oversee the Police Chief s management of the police force and authorizes the Township Manager to intervene in disciplinary matters where warranted. There is nothing in N.J.S.A. 40A: or the implementing ordinances to suggest that the Police Chief is the only individual authorized to impose disciplinary action upon a member of the police force or that the Police Chief will, in all cases, be the final authority regarding the necessity of disciplinary charges and the accompanying penalty. In this regard: N.J.S.A. 40A: clearly requires that a municipality must have an appropriate authority to oversee the police department... The appropriate authority adopts rules and regulations for the department, and the discipline of the members; additionally, the appropriate authority establishes policies for the daily operations of the department. The appropriate authority is a civilian position. Policemen s Benevolent Association, North Brunswick, Local 160 v. Township of North Brunswick, 318 N.J

6 Super. 544, (App. Div. 1999), cert. denied, 161 N.J. 150 (1999). Accordingly, the Board finds that the Township Manager did not lack the authority to bring the disciplinary charges at issue. Additionally, the appellant maintains that the amended PNDA of July 3, 2002 violated the 45-day rule contained in N.J.S.A. 40A: Initially, the Board notes that, even if it was determined that the July 3, 2002 PNDA violated the 45-day rule, requiring dismissal of that PNDA, this would not disturb the valid and timely April 16, 2002 PNDA. In this regard, the appellant does not dispute that the April 16, 2002 PNDA was issued within the time limits prescribed by N.J.S.A. 40A:14-147, and it contained all five of the present disciplinary charges and an adequate statement of the facts underlying those charges. See N.J.A.C. 4A:2-2.5(a). Specifically, by virtue of the April 16, 2002 PNDA, the appellant was on sufficient notice that the disciplinary charges stemmed from his alleged sexual activity with a subordinate officer. In any event, the Board finds that the amended July 3, 2002 PNDA was not issued in violation of the 45-day rule, since this PNDA merely expanded upon the general specifications contained in the April 16, 2002 PNDA. In this regard, the July 3, 2002 PNDA simply delineated the specific instances in which the appellant engaged in sexual relations with R.S. Thus, the ALJ properly determined that this amended PNDA related back to the April 16, 2002 PNDA. Cf. Lamont Walker v. Burlington County, Docket No. A T3 (App. Div. October 9, 2002) (Board found that amendment of PNDA over two years after the original PNDA was served, in order to add an entirely distinct incident not contained in original PNDA, was untimely and should be dismissed). Further, the Board agrees with the ALJ s assessment of the charges against the appellant. While the appellant, in his exceptions, challenges the ALJ s credibility determinations, the Board does not find these attacks persuasive. In this regard, the Board acknowledges that the ALJ, who has the benefit of hearing and seeing the witnesses, is generally in a better position to determine the credibility and veracity of the witnesses. See Matter of J.W.D., 149 N.J. 108 (1997). [T]rial courts credibility findings... are often influenced by matters such as observations of the character and demeanor of witnesses and common human experience that are not transmitted by the record. See In re Taylor, 158 N.J. 644 (1999) (quoting State v. Locurto, 157 N.J. 463, 474 (1999) ). Additionally, such credibility findings need not be explicitly enunciated if the record as a whole makes the findings clear. Id. at 659 (citing Locurto, supra). The Board appropriately gives due deference to such determinations. However, in its de novo review of the record, the Board has the authority to reverse or modify an ALJ s decision if it is not supported by the credible evidence or was otherwise arbitrary. See

7 N.J.S.A. 52:14B-10(c); Cavalieri v. Public Employees Retirement System, 368 N.J. Super. 527 (App. Div. 2004). In this case, upon thorough review, the Board finds that there is nothing in the record evidencing that the ALJ s findings regarding the remaining disciplinary charges were flawed or were not based on the credible evidence in the record. The ALJ found, based on the demeanor of the appellant and R.S., as well as several other objective indicators, that R.S. presented the more credible account of the events at issue. In particular, the ALJ noted the specificity of R.S. s recollection, her lack of any motive to fabricate the charges, and her frank acknowledgments that she was partly at fault for the inappropriate conduct at issue. The ALJ also emphasized that, unlike the appellant, R.S. s account of the sexual relationship remained consistent throughout the investigation and hearings related to this matter. Thus, based on the credible evidence in the record, the Board finds that the disciplinary charges of misconduct, conduct unbecoming a public employee, violations of rules and regulations of the Scotch Plains Police Department, and other sufficient cause should be upheld. While the Board agrees with the ALJ s determination of the charges, the Board disagrees with the ALJ s recommendation that a six-month suspension, coupled with a demotion to the title of Police Officer, is the proper penalty. Rather, the Board finds that the removal should be upheld. In determining the proper penalty, the Board s review is de novo. West New York v. Bock, 38 N.J. 500 (1962). In determining the propriety of the penalty, several factors must be considered, including the nature of the appellant s offense, the concept of progressive discipline, and the employee s prior record. George v. North Princeton Developmental Center, 96 N.J.A.R. 2d 463, 465 (CSV) Although the Board applies the concept of progressive discipline in determining the level and propriety of penalties, an individual s prior disciplinary history may be outweighed if the infraction at issue is of a serious nature. Henry v. Rahway State Prison, 81 N.J. 571, 580 (1980). The Civil Service Act protects and rewards meritorious public employees, but does not benefit those who are wayward. Although an employee who engaged in a mere negligent dereliction of duties might reasonably face discipline which falls short of removal, one who intentionally does so may not. See Steinel v. Jersey City, 193 N.J. Super. 629 (App. Div. 1984), aff d, 99 N.J. 1 (1985); In the Matter of Berry and Rambo, Docket No. A T1 (App. Div. July 12, 1996). There is no constitutional or statutory right to a government job... The welfare of the people as a whole, and not exclusively the welfare of the civil servant, is the basic policy underlying our statutory scheme. State- Operated School District v. Gaines, 309 N.J. Super. 327, 334 (App. Div. 1998). Even 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. In the instant matter, despite the absence of any

8 major disciplinary history, the appellant s offense is sufficiently egregious to warrant his removal. See In the Matter of Eric Cerra, Docket No. A T1 (App. Div. February 21, 2003) (Appellate Division upheld Board s removal of a Senior Correction Officer who left his post on one occasion to engage in sexual activity with a co-worker while on duty). The appellant, a supervisory law enforcement officer, participated in a sexual relationship with a subordinate Police Officer, and several of the instances in which he engaged in sexual relations occurred while the appellant was on duty and in uniform. Such conduct is unacceptable, particularly for an individual serving in a supervisory capacity, and it prevented the appellant from carrying out his important duty of protecting and serving the public. The fact that the appellant s behavior often occurred in areas fully accessible to the public compounds the seriousness of his offense, since it serves to undermine the public s expectations and trust. In this regard, the Board notes that a law enforcement officer is held to a higher standard than a civilian public employee and the Board is particularly mindful of this standard when disciplinary action is taken against a supervisory law enforcement officer. See Moorestown v. Armstrong, 89 N.J. Super. 560 (App. Div. 1965), cert. denied, 47 N.J. 80 (1966). See also In re Phillips, 117 N.J. 567 (1990). Accordingly, the Board concludes that the penalty of removal imposed by the appointing authority is neither unduly harsh nor disproportionate to the offense and should be upheld. ORDER The Merit System Board finds that the action of the appointing authority in imposing the removal was justified. Therefore, the Board affirms that action and dismisses the appeal of James Cassidy. This is the final administrative determination in this matter. Any further review should be pursued in a judicial forum.