Opinion
DOCKET NO. A-2167-14T4
07-01-2016
STEVEN BOGART, Appellant, v. BOARD OF TRUSTEES OF THE POLICE AND FIREMEN'S RETIREMENT SYSTEM, Respondent.
Stuart J. Alterman argued the cause for appellant (Alterman & Associates, LLC, attorneys; Mr. Alterman, of counsel; Matthew Richard Dempsky, on the brief). Jeff S. Ignatowitz, Deputy Attorney General, argued the cause for respondent (Robert Lougy, Acting Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Mr. Ignatowitz, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Ostrer and Manahan. On appeal from the Board of Trustees of the Police and Firemen's Retirement System, Department of Treasury, PFRS # 3-88615. Stuart J. Alterman argued the cause for appellant (Alterman & Associates, LLC, attorneys; Mr. Alterman, of counsel; Matthew Richard Dempsky, on the brief). Jeff S. Ignatowitz, Deputy Attorney General, argued the cause for respondent (Robert Lougy, Acting Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Mr. Ignatowitz, on the brief). PER CURIAM
Petitioner Steven Bogart appeals the final administrative decision of the Board of Trustees (Board) of the Police and Firemen's Retirement System (PFRS), which rejected an Administrative Law Judge's (ALJ) decision to forfeit Bogart's pension effective December 28, 2010, and reinstated total forfeiture of his pension based on nine instances of shoplifting. We reverse the Board's decision and reinstate the order entered by the ALJ.
I.
On March 31, 2011, Bogart was charged with nine counts of shoplifting in violation of N.J.S.A. 2C:20-11B. He was issued a Preliminary Notice of Disciplinary Action (PNDA) by the Civil Service Commission on April 1, 2011. Bogart was suspended pending the final disposition of the PNDA. On November 11, 2011, Bogart filed an application for accidental disability retirement benefits. Five days later he pled guilty to one count of disorderly conduct, N.J.S.A. 2C:33-2(a)(2). The shoplifting charges were dismissed. Bogart was assessed a $1000 fine and required to pay $74.94 in restitution.
Pursuant to a settlement agreement with Little Egg Harbor Township (Township), Bogart tendered his resignation from the Little Egg Harbor Police Department (LEHPD) on December 1, 2011. The terms of the resignation agreement required the Township to dismiss the administrative charges against Bogart. Shortly thereafter, the Board denied Bogart's application for accidental disability pension and voted in favor of "total forfeiture of [his] PFRS service and salary" on the grounds that his conduct "demonstrated a high degree of moral turpitude." Bogart appealed the Board's decision, and an Office of Administrative Law (OAL) hearing was held on May 30 and July 23, 2014. The ALJ issued a written opinion on September 29, 2014, reversing the Board's imposition of total forfeiture. The ALJ found that forfeiture was appropriate, but modified the penalty to partial forfeiture effective from the date of the first incident of shoplifting. On December 9, 2014, the Board issued a decision modifying the ALJ's findings of fact and reinstating its initial penalty of total forfeiture. This appeal followed.
II.
We derive the relevant facts for our determination from the record developed at the OAL hearing, which includes documentary evidence as well as testimony from Bogart, Dr. Joel Glass, M.D., and four other police officers with whom he served. The Board did not present any witnesses at the administrative hearing.
Bogart commenced his career in civil service sometime in 1996 with the Beach Haven Police Department. He also worked for the Ship Bottom Police Department between 1998 and 1999. In 2000, Bogart began employment as a police officer for the LEHPD. Bogart served as a patrolman for the LEHPD from 2000 to 2003, and as a detective between 2003 and 2004. He was suspended in 2004, and returned to duty as a detective in December 2006. In October 2010, Bogart was temporarily reassigned as a patrolman due to layoffs in the LEHPD. He remained in the patrol division until the time of his resignation. Bogart had one significant disciplinary issue during his tenure as a police officer.
According to his brief, petitioner was enrolled in the Public Employees Retirement System (PERS) on November 1, 1997.
According to his brief, petitioner was enrolled in PFRS on January 1, 2001.
In June 2004, he was suspended after being charged with aggravated assault following an off-duty incident. He pled guilty to one count of third-degree aggravated assault and was placed in a Pretrial Intervention (PTI) program. On November 30, 2006, Bogart entered an agreement with LEHPD pleading guilty to an administrative charge of conduct unbecoming a public employee, N.J.A.C. 4A:2.3(a)(6). He was suspended retroactively for six-months and returned to active duty in December 2006.
During his employment with LEHPD, Bogart was involved in three "critical incidents" relevant to his disability claim and this appeal. Bogart described a critical incident as a law enforcement term generally describing incidents involving multiple agencies, usually involving violence or trauma arising from a serious accident. He contends that these events caused him to suffer from post-traumatic stress disorder (PTSD). Bogart maintained that his PTSD caused him to suffer from depression and indifference which led to his shoplifting and permanent disability.
The first critical incident occurred on June 2, 2002. Bogart and a "recruit" from police academy were involved in a shootout with individuals suspected of having committed an armed robbery of a pharmacy. One of the suspects opened fire at Bogart. Bogart returned fire and struck the suspect, wounding him. Although the recruit was unharmed, Bogart believed he was shot during the incident and felt responsible for him. After the incident Bogart was taken to an emergency room for treatment. He was given Xanax and placed on administrative leave for "one or two days[.]"
The second critical incident occurred on September 28, 2002. While on patrol Bogart received two disorderly persons reports in his patrol area regarding an individual later identified as Michael Cahill, whom Bogart knew from prior incidents. Cahill fled the scene both times before police arrived. Bogart received a third call regarding an altercation in the front yard of a residence. Upon arrival, the officers found that Cahill had made his way into the home and had been shot and restrained by the homeowner's son, Eric Howey. When Bogart entered the unlit kitchen he slipped on a pool of blood. He turned on the light to reveal that when Howey fired his gun at Cahill, he had accidently shot and killed his mother.
Bogart felt responsible for the death of Howey's mother because he had not been able to locate and apprehend Cahill prior to the shooting. He also felt responsible because he and Howey were high school classmates. Cahill was later found to be criminally insane and was confined at Ancora Psychiatric Hospital. Subsequent to his release from Ancora, Cahill stabbed his mother numerous times and killed his step-father. Bogart suffered feelings of guilt about the murder, again believing that he was responsible due to his failure to apprehend Cahill prior to the Howey incident.
The third critical incident occurred on October 14, 2010. Shortly after Bogart was reassigned to patrol, the LEHPD received a call about an "active-shooter situation." The suspect had shot and killed his brother and a female neighbor, and reportedly fled into a nearby wooded area. Multiple police departments responded to secure the area. Bogart was stationed alone at a small hiking trail leading into the woods.
Bogart felt that his "time [was] up" and "it was [his] luck" that he was involved in every critical incident. Bogart felt that "if there was one place [the suspect] was going to come out, he was going to come out of this trail right here[.]" Hours later it was reported that the gunman had committed suicide. Bogart testified that after the third incident he felt as if "everything was hitting [him]." He stated that he "felt like [he] was having an anxiety attack." Bogart did not seek treatment because he felt like other officers looked up to him and he did not want to be labeled a "nut job" or "screwball[.]"
Over the course of his career with the LEHPD, Bogart was evaluated for fitness for duty on a number of occasions. On June 19, 2002, he was evaluated by Irvin B. Guller, Ph.D. On November 7, 2006, he was evaluated by Guillermo Gallegos, Ph.D. On May 7, 2009, Bogart was evaluated by Richard Cohen, Ph.D. The first two evaluations concluded that Bogart was fit to return to duty. The third evaluation provided no recommendation relating to Bogart's fitness for duty. Bogart continued on active duty after this evaluation report was issued.
Bogart was charged with shoplifting approximately five months after the third critical incident. The complaint alleged that Bogart shoplifted goods from an Acme Market located in the Township. On nine separate occasions, Bogart placed various food and household items into his bag at the self-checkout kiosk without paying for them. In total, the items taken were valued at $74.94. In two instances, Bogart was in police uniform. Bogart did not dispute that he shoplifted, but testified at the hearing that he did not recall each incident. He testified that when he shoplifted the items, he did not care about the items, about being caught, or about being confronted. Bogart testified that he had suicidal thoughts at the time the incidents occurred.
Following his arrest, Bogart was treated in the emergency room of a nearby hospital. He reported suicidal thoughts and was hospitalized from April 5 to April 12, 2011. He subsequently sought treatment with a psychiatrist, Dr. Louis Morelli.
In December 2011, Bogart was evaluated by Glass, a psychiatrist with expertise in PTSD. The evaluation was in connection with his pension disability application. Glass concluded in his evaluation report that Bogart suffered PTSD as a result of the two critical incidents in 2002. The doctor opined Bogart's PTSD initially resulted in symptoms involving a "distant and uninvolved" demeanor. Glass noted that the symptoms then intensified after the 2010 active-shooter incident. However, due to Bogart's desire to maintain a strong self-image, he denied the symptoms which prevented him from seeking treatment. Glass also opined that Bogart's PTSD resulted in depression, anxiety, suicidal thoughts, and an attitude of apathy that produced the "pointless" shoplifting.
On July 6, 2012, Bogart was evaluated upon the Board's request by Daniel B. LoPreto, Ph.D., predicated upon Bogart's claim for disability benefits. LoPreto issued a report and subsequent addendum report in connection with his evaluation concluding that Bogart was totally and permanently disabled as a result of the first two critical incidents. He opined that Bogart suffered from PTSD stemming from the two traumatic incidents. However, he noted that the active-shooter incident in 2010 did not appear to be a "significantly contributory" factor to Bogart's condition. LoPreto expressed no opinion with respect to whether Bogart's shoplifting was caused by his PTSD.
Glass issued a subsequent addendum to his report. The report was due to the administrative review of the Board's initial decision to deny Bogart disability retirement, Bogart's PNDA and Final Notice of Disciplinary Action, and the report(s) authored by LoPreto. In the addendum, Glass emphasized that Bogart shoplifted less than $75 of goods noting that "none of those items would be of any use to him." Glass also noted that Bogart had informed LoPreto that Bogart was aware he was being observed when he was shoplifting. Bogart reported that he suspected on some level he may have hoped to get caught. Glass also opined that Bogart's 2004 assault was an "explosive overreaction" which "undoubtedly reflected [his] impairment" due to PTSD.
As noted by the Board, Bogart has not argued that the PTSD caused the 2004 assault.
At the OAL hearing, each of the four testifying officers maintained that the shoplifting charges were out of character for Bogart and that the incidents did not change their opinion of him. They testified that they were impressed with Bogart's work and thought of him as someone they could consult for advice. Although LoPreto did not testify at the hearing, his report was admitted into evidence over the Board's objection.
Glass testified that symptoms of PTSD may not manifest immediately following a traumatic event and sometimes may not surface for years. He also noted that the diagnosis of PTSD was initially made during Bogart's 2011 hospitalization and again by Morelli. With regard to Bogart's shoplifting, Glass opined that the shoplifting was caused by Bogart's PTSD:
[T]he shoplifting . . . occurred in the midst of the intensification of [Bogart's PTSD] symptoms . . . as a result of the experience he had in 2010 which resulted in more anxiety, more depression, more intrusive thoughts and an intensification of his disturbing dreams and . . . in the course of that depression he became more lethargic, more apathetic and didn't care what happened to him and was considering suicide[.] . . . The shoplifting was the direct result of his [PTSD].Glass further testified that the shoplifting could have been a call for help, but also that Bogart was "so apathetic and so uncaring about what he did and what happened to him that he was kind of going through the motions of doing things" during the shoplifting incidents.
Glass was confronted with the three fitness for duty evaluation reports, which he had not reviewed. Glass testified that after reviewing the evaluations they did not alter his opinion that Bogart's PTSD caused him to shoplift, and that the three evaluations were consistent with his conclusions. On cross-examination, Glass testified that he was not aware of any studies specifically linking shoplifting and PTSD. Glass acknowledged the probability that people suffering from PTSD were no more likely to shoplift than those in the general population. Glass also acknowledged that he did not know the specific items that Bogart shoplifted but thought that they were "small clothing, . . . toiletry items, . . . [or] maybe groceries." Glass reiterated that he believed that Bogart's shoplifting was caused by apathy and numbness rather than a desire to gain some benefit by shoplifting.
Glass also noted that LoPreto's report, which he did review, referenced the evaluations. --------
III.
On September 29, 2014, the ALJ issued a written decision affirming the Board's initial decision in part and reversing in part. Applying the factors cited in Uricoli v. Police and Firemen's Retirement System, 91 N.J. 62, 77-78 (1982), the ALJ held that rather than total forfeiture, Bogart should forfeit his service effective from the date of the first incident of shoplifting in December 2010.
In reaching the determination, the ALJ gave weight to the eleventh Uricoli factor, which requires consideration of "other personal circumstances relating to the employee bearing upon the justness of forfeiture[.]" Uricoli, supra, 91 N.J. at 78. She found that while Bogart's shoplifting was "a crime involving a high degree of moral turpitude," the goods taken were valued at less than $75. Moreover, Bogart was fined and required to pay restitution. In light of the evidence that Bogart's shoplifting was caused by his PTSD and testimony from his fellow officers that the behavior was out of character, the ALJ found total forfeiture was excessive and inappropriate.
In its decision, the Board adopted and modified the ALJ's fact findings, and reinstated the sanction of total forfeiture. The Board reasoned that the ALJ's factual findings omitted relevant details from the testimony at the hearing. Specifically, the Board's opinion highlighted Glass's conclusion that the shoplifted items were of no use to Bogart despite his inability to specifically identify the items that were taken. The Board also noted Glass's testimony that he was unaware of any studies establishing a link between PTSD and shoplifting. Finally, the Board noted that Glass was not aware at the time he rendered his opinion that Bogart was found fit for duty on three separate occasions.
In reliance thereupon, the Board rejected the ALJ's finding that Bogart's shoplifting was caused by his PTSD. The Board also rejected LoPreto's opinion that Bogart suffered from PTSD and was totally and permanently disabled since LoPreto did not testify before the ALJ. In its application of Uricoli, the Board noted the shoplifting incidents occurred over nine separate dates and Bogart was in uniform on two occasions. The Board characterized the shoplifting as an "ongoing, continuous shoplifting spree," which exhibited a "high degree of moral turpitude."
Bogart raises the following arguments on appeal:
POINT I
[BOGART] IS ENTITLED TO THIS COURT'S REVERSAL OF THE DECEMBER 9, 2014 DETERMINATION OF THE [BOARD], AS THEIR MODIFICATIONS OF THE ALJ'S FINDINGS OF FACT ARE ARBITRARY, CAPRIOUS, AND UNREASONABLE, AND THEY ARE NOT SUPPORTED BY SUFFICIENT,
COMPETENT, AND CREDIBLE EVIDENCE IN THE RECORD.
A. THE ALJ'S FINDINGS OF FACT WERE SUPPORTED BY SUBSTANTIAL CREDIBLE EVIDENCE IN THE RECORD.
B. [T]HE BOARD'S FINDINGS OF FACT WERE UNSUPPORTED BY SUBSTANTIAL CREDIBLE EVIDENCE IN THE RECORD, AND THEREFORE THE REJECTION OF THE ALJ'S DETERMINATION WAS IMPROPER.
POINT II
[BOGART] IS ENTITLED TO THIS COURT'S REVERSAL OF THE DECEMBER 9, 2014 DETERMINATION OF THE [BOARD], AS THEIR CONCLUSIONS OF LAW ARE ARBITRARY, CAPRICIOUS, AND UNREASONABLE, AND THEY ARE NOT SUPPORTED BY THE CREDIBLE EVIDENCE IN THE RECORD.
A. THE [ALJ'S] FINDINGS WERE SUPPORTED BY ADEQUATE, SUBSTANTIAL AND CREDIBLE EVIDENCE, AND WERE THEREFORE NOT SUITABLE FOR REJECTION OR MODIFICATION.
B. IN THE ALTERNATIVE, THE FORFEITURE OF [BOGART'S] PENSION IS NOT APPROPRIATE, AS [BOGART'S] MISCONDUCT WAS NOT RELATED TO HIS DTIES AS A POLICE OFFICER, AND INVOLVED NO MORAL TURPITUDE.
C. THE BOARD IMPROPERLY DISPOSED OF THE HONORABLE SERVICE ISSUE WITHOUT CONSIDERING THE MERITS OF THE ACCIDENTAL DISABILITY ISSUE.
IV.
Our scope of review in an appeal from the final decision of an administrative agency is limited. In re N.J. Dep't of Envtl. Prot. Conditional Highlands Applicability Determination, 433 N.J. Super. 223, 235 (App. Div. 2013) (citing Circus Liquors, Inc. v. Governing Body of Middletown Twp., 199 N.J. 1, 9 (2009)). "We must sustain the agency's action in the absence of a 'clear showing that it is arbitrary, capricious, or unreasonable, or that it lacks fair support in the record[.]'" Ibid. (quoting Circus Liquors, supra, 199 N.J. at 9). On questions of law, review is de novo. Ibid. (citing Russo v. Bd. of Trs., Police & Firemen's Ret. Sys., 206 N.J. 14, 27 (2011)). We are "in no way bound by the agency's interpretation of a statute or its determination of a strictly legal issue." Mayflower Sec. Co., Inc. v. Bureau of Sec., 64 N.J. 85, 93 (1973). We accept the factual findings of an agency as long as they are supported by sufficient credible evidence, and we may not substitute our judgment for that of the agency. Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992).
When a head of an administrative body rejects or modifies any findings of fact or conclusions of law made by an ALJ, it must clearly state its reasons for doing so. Div. of Youth & Family Servs. v. C.H., 414 N.J. Super. 472, 480 (App. Div. 2010) (citing N.J.S.A. 52:14B-10(c)), certif. denied, 207 N.J. 188 (2011); S.D. v. Div. of Med. Assistance & Health Servs., 349 N.J. Super. 480, 485 (2002). The new or modified findings must be supported by "sufficient, competent, and credible evidence in the record . . . ." Ibid. In this context, we are required to "ensure that the agency head applied the appropriate standard of review when modifying or reversing credibility findings of law witnesses." S.D., supra, 349 N.J. Super. at 485 (citation omitted).
Given our standard of review, and consistent with the factual record and applicable law, we conclude the Board's modified findings of fact and conclusions of law are not supported by sufficient, competent and credible evidence in the record, and total forfeiture is unwarranted under an Uricoli analysis. See Uricoli, supra, 91 N.J. at 79 ("partial forfeiture of pension benefits should be admeasured as of the time of the wrongful conduct.").
V.
We begin by addressing Bogart's argument that the Board failed to comply with the requirements of N.J.S.A. 52:14B-10(c) when it modified the ALJ's findings of fact and rejected the judge's legal conclusions. Since the Board stated the reasons for modifying and rejecting the ALJ's findings, we conclude there was no violation of N.J.S.A. 52:14B-10(c).
The head of an agency is permitted to reject or modify an ALJ's findings of fact or conclusions of law if it "state[s] with particularity the reasons for rejecting the findings and . . . make[s] new or modified findings supported by sufficient, competent, and credible evidence in the record." Ibid. The head of an agency may reject findings of fact as to issues of credibility of lay witnesses only if it determines that the ALJ's findings are "arbitrary, capricious or unreasonable or not supported by sufficient, competent, and credible evidence in the record." Ibid.
Here, Bogart argues that the Board was required to make a showing that the ALJ's findings regarding the credibility of Glass's expert testimony was "arbitrary, capricious or unreasonable or not supported by sufficient, competent, and credible evidence in the record." We disagree.
Upon its review, the Board was required to state with particularity the reasons for modifying or rejecting the decision of the ALJ. N.J.S.A. 52:14B-10(c). This requirement was satisfied by the Board when it specified the evidence it considered and did not consider in rejecting the contention that Bogart's shoplifting was caused by his PTSD. The Board weighed the perceived deficiencies in Glass's testimony and clearly stated its reasons for modifying and rejecting the ALJ's decision. Therefore, the Board met the requirements of N.J.S.A. 52:14B-10(c).
VI.
Bogart next argues that the Board's modified findings of fact were not supported by substantial, credible evidence in the record and should be rejected. We agree with this argument.
We have recognized "that when the prosecutorial and adjudicative functions are concentrated in the same body and exercised in a quasi-judicial setting there is danger that resultant dispositions may be arbitrary." Executive Comm'n on Ethical Standards v. Salmon, 295 N.J. Super. 86, 96 (App. Div. 1996) (quoting In re Suspension of License of Silberman, 169 N.J. Super. 243, 255 (App. Div. 1979), aff'd, 84 N.J. 303 (1980)). Moreover, where the agency's findings of fact are contrary to the findings of the ALJ, "there is a particularly strong need for careful appellate review." In re Lalama, 343 N.J. Super. 560, 565 (App. Div. 2001).
Here, the Board rejected Glass's opinion that Bogart's PTSD caused him to shoplift:
[T]he Board rejects any finding that PTSD caused [Bogart] to shoplift because the evidence in the record does not support [Glass's] statements that the shoplifting was caused by PTSD[.] [Glass] does not explain any medical link in diagnosis or causation between PTSD and shoplifting. Further, [Glass] appeared not to know what items Mr. Bogart did shoplift, and [Glass] did not know that [Bogart] had been previously cleared for duty after three separate psychological fitness for duty
evaluations because he did not review the evaluations prior to his testimony.[]
The Board rejects the [ALJ's] finding of fact that "[LoPreto] determined that petitioner suffered from PTSD and that he was totally and permanently disabled." The Board rejects this factual finding because [LoPreto] did not testify at the hearing, the Board has not considered the merits of [Bogart's] application for accidental disability retirement and any question as to [Bogart's] disability in this context was not an issue transmitted to the OAL.
Based upon our review of the record, we hold that the Board's modified findings of fact were materially in discord with the substantial credible evidence adduced during the hearing before the ALJ. In its opinion, the Board overlooked or was dismissive of the unrefuted testimony from Bogart's former colleagues who testified favorably about his character and job performance. Further, the Board's rejection of LoPreto's opinion, its own retained expert on the disability claim, which diagnosed Bogart with PTSD, was also disharmonious with unrefuted evidence. LoPreto's report, admitted into evidence before the ALJ, corroborated Glass's diagnosis of Bogart's PTSD.
Moreover, we disagree with the Board's contention Glass's opinion should be disregarded because he "failed to provide any factual, medical or other evidence to support his conclusion[,]" and that Glass's testimony was net opinion that merely stated a "bare conclusion unsupported by factual evidence." See Creanga v. Jardal, 185 N.J. 345, 360 (2005).
An expert opinion must be based on facts or data "perceived by or made known to the expert at or before the hearing." N.J.R.E. 703. Further, the facts or data "need not be admissible in evidence" if it is "of a type reasonably relied upon by experts" in the relevant field. Ibid. The net opinion rule requires that an expert "give the why and wherefore that supports the opinion, rather than a mere conclusion." Townsend v. Pierre, 221 N.J. 36, 54 (2015) (quoting Borough of Saddle River v. 66 E. Allendale, LLC, 216 N.J. 115, 144 (2013)).
Simply stated, there was a "why and wherefore" for Glass's conclusions. Id. at 54. At the hearing he was admitted, without objection, as an expert in the field of psychiatry. Glass provided comprehensive testimony regarding PTSD and its causes, symptoms, and how or when those symptoms manifest. Glass also testified specifically about Bogart's case, relying on extensive records and a personal evaluation, and offering a particular analysis as to how Bogart's past experiences effected his symptoms and behavior (including the shoplifting). Although he had not reviewed the fitness for duty evaluations, Glass noted that LoPreto's report referenced the evaluations. Glass explained how each evaluation report, he now considered, was consistent with his own opinion.
We also reject the Board's contention that Glass's testimony should not be considered due to his inability to identify any specific studies linking PTSD and shoplifting. The net opinion rule does not require that an expert "organize or support an opinion in a particular manner that opposing counsel deems preferable[,]" rather, an expert must "explain [his or her] methodology and demonstrate that both the factual bases and the methodology are reliable." Id. at 54-55.
Glass's opinion was not undermined by the fact that he could not identify a study specifically linking PTSD and shoplifting during his cross-examination. That no such study existed was not sufficient to warrant disregard of the opinion. Furthermore, we note while there may be no study directly linking PTSD with shoplifting, PTSD may be raised as a defense in various contexts in criminal prosecutions. See, e.g., State v. Case, 220 N.J. 49, 57, 68 (2014); State v. Melendez, 423 N.J. Super. 1, 16-18 (App. Div. 2011), certif. denied, 210 N.J. 28 (2012); State v. L.V., 410 N.J. Super. 90, 98-100, 106, 112 (App. Div. 2009), certif. denied, 201 N.J. 156 (2010); State v. Townsend, 374 N.J. Super. 25, 31-32 (App. Div. 2005), aff'd in part, rev'd in part, 186 N.J. 473 (2006); State v. B.H., 183 N.J. 171, 182-83 (2005).
VII.
We last address Bogart's argument that the Board's Uricoli analysis was flawed and its decision requiring total forfeiture of his pension based on that analysis was arbitrary, capricious, and unsupported by the record. In Uricoli, the Supreme Court established an eleven-factor balancing approach to pension forfeiture cases:
(1) the employee's length of service; (2) the basis for retirement, i.e., age, service disability, etc.; (3) the extent to which the employee's pension has vested; (4) the duties of the particular employment; (5) the employee's public employment history and record; (6) the employee's other public employment and service; (7) the nature of the misconduct or crime, including the gravity or substantiality of the offense, whether it was a single or multiple offense and whether it was continuing or isolated; (8) the relationship between the misconduct and the employee's public duties; (9) the quality of moral turpitude or the degree of guilt and culpability, including the employee's motives and reasons, personal gain and the like; (10) the availability and adequacy of other penal sanctions; and (11) other personal circumstances relating to the employee bearing upon the justness of forfeiture.
[Uricoli, supra, 91 N.J. at 78.]
A public employee's right to pension benefits is contingent upon his or her honorable service. Id. at 66. Since a public employee has an entitlement to pension benefits, "[a]ll elements of doubt must be resolved in favor of the person against whom forfeiture is sought." Id. at 76 (quoting State v. LaBella, 88 N.J. Super. 330, 338 (Law Div. 1965)).
In its written opinion, the Board addressed each of the factors in turn, giving particular weight to factors seven, eight, and nine. As Bogart does not challenge the Board's findings regarding factors one through seven, we address factors eight through eleven.
With respect to factor eight, the Board found that because Bogart was in uniform on two of the shoplifting occasions, there was a direct relationship between his misconduct and his duties as a public employee. We concur that Bogart shoplifting in his uniform is a significant connection to his duty as a police officer, as a police uniform "has the same significance to the public whether the wearer is technically on or off duty." See Jasaitis v. Paterson, 31 N.J. 81, 85 (1959).
With respect to factor nine, the Board found that the shoplifting exhibited a high degree of moral turpitude given the elevated standard of conduct for police officers. However, testimony at the hearing established that the shoplifting was out of character for Bogart, and that his mental state at the time was more an attitude of indifference and apathy rather than a malicious attempt to gain an illicit benefit. Given that Bogart stole less than $75 worth of goods - which amounts to an average of less than $9 each occasion - we agree with the ALJ's conclusion that Bogart was not motivated by financial gain. Although mindful that police officers are held to a higher standard of conduct, In re Carter, 191 N.J. 474, 485-86 (2007), In re Phillips, 117 N.J. 567, 576-77 (1990), Glass and LoPreto's diagnoses and the evidence regarding Bogart's state of mind at the time of the shoplifting militate against a finding that he exhibited a high level of moral turpitude. In light of factor nine's consideration of the petitioner's culpability, Uricoli, supra, 91 N.J. at 78, the Board's inferential finding that Bogart believed he could steal with "impunity" lacks a factual premise.
With respect to factor ten, the Board found that Bogart was fined $1000, ordered to pay restitution, tendered his irrevocable resignation and was barred from seeking any law enforcement position in New Jersey. The Board drew an analogy between Bogart's misconduct and the misconduct in Corvelli v. Bd. of Trs., 130 N.J. 539 (1992).
In Corvelli, the Supreme Court affirmed a decision requiring total forfeiture of the petitioner police chief's pension. Id. at 541. The petitioner was determined to have held a grudge against one of his patrolmen and punished the patrolman by assigning him to foot patrol in a park from 2 a.m. to 10 a.m. on an indefinite basis. Id. at 542. The petitioner subsequently stole the patrolman's police-issued shotgun from his patrol car with the aid of another officer and then accused the patrolman of carelessly allowing the gun to be stolen. Id. at 543. Thereafter, the petitioner suspended the patrolman for the maximum allowable time and recommended that the governing body impose additional sanctions. Ibid. We disagree with the Board that Bogart's misconduct was analogous to the level of the misconduct in Corvelli, where the police chief's conduct was intentional and malicious. From our consideration of all the attendant circumstances presented here, we find Bogart's misconduct to be analogous to the misconduct presented in Uricoli.
In Uricoli, supra, 91 N.J. at 64-65, the petitioner was a former police chief involved in a single ticket-fixing incident in which he illegally disposed of a ticket issued to a close friend's son. The petitioner did not receive any compensation for disposing of the ticket. Id. at 65. The Court held that total forfeiture was inappropriate in light of its analysis of the Uricoli factors. Id. at 78-79. The Court found that the alternate sanctions of termination from public service, and conviction and sentencing for his crime was adequate. Ibid.
Here, the fines and restitution, as well as Bogart's resignation and prohibition from seeking employment in law enforcement, were commensurate with the crimes he committed. The fine and restitution was appropriate for the amount of goods stolen. Bogart's resignation was also an appropriate administrative penalty because he was in uniform when he committed the crimes.
In T.J.M. v. Bd. of Trs. of PFRS, 218 N.J. Super. 274, 276-77, 279-83 (App. Div. 1987), we applied the Uricoli factors in reversing the Board's denial of a disability retirement pension to a police officer who had been convicted of off-duty aggravated sexual assault upon his daughter. Despite the pernicious nature of the officer's behavior, we held that the Board erred in imposing a total forfeiture of benefits without giving sufficient attention to numerous mitigating factors, including the officer's documented history of psychological disturbances. Id. at 277, 283. Here, in addition to the Board rejecting Bogart's claim of PTSD, it failed to consider in mitigation that, while a police officer, he experienced two to three traumatic incidents. After which, according to his fellow officers, Bogart's job performance was adversely affected.
Finally, with respect to factor eleven, the Board found that Bogart's misconduct "diminishes the public's respect for the confidence in its police department and in the rule of law." The Board emphasized that Bogart had shoplifted twice while in uniform, and rejected the ALJ's fact finding that Bogart's shoplifting was a result of his PTSD. In contravention of the Board's decision, we hold there was sufficient and credible evidence to sustain the ALJ's conclusion that Bogart's shoplifting was symptomatic of his PTSD, caused by events directly stemming from his service. While we agree that Bogart's conduct was wrongful and cast a negative light on police, we do not agree, considering the totality of the record, that total forfeiture of Bogart's pension was the appropriate penalty.
Reversed and remanded. I hereby certify that the foregoing is a true copy of the original on file in my office. CLERK OF THE APPELLATE DIVISION