Opinion
DOCKET NO. A-4484-10T1
03-08-2013
IN THE MATTER OF ANGELO ANDRIANI, CITY OF HOBOKEN.
Paul Condon argued the cause for appellant/cross-respondent, City of Hoboken (Law office of Paul condon, attorneys; Mr. Condon, on the brief). Charles J. Sciarra argued the cause for respondent/cross-appellant Angelo Andriani (Sciarra & Catrambone, L.L.C., attorneys; Mr. Sciarra, of counsel and on the brief; Deborah Masker Edwards, on the brief). Jeffrey S. Chiesa, Attorney General of New Jersey, attorney for respondent Civil Service Commission (Todd A. Wigder, Deputy Attorney General, on the statement in lieu of brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo and Sabatino.
On appeal from Final Decision of the Civil Service Commission, Docket No. 2010-3531.
Paul Condon argued the cause for appellant/cross-respondent, City of Hoboken (Law office of Paul condon, attorneys; Mr. Condon, on the brief).
Charles J. Sciarra argued the cause for respondent/cross-appellant Angelo Andriani (Sciarra & Catrambone, L.L.C., attorneys; Mr. Sciarra, of counsel and on the brief; Deborah Masker Edwards, on the brief).
Jeffrey S. Chiesa, Attorney General of New Jersey, attorney for respondent Civil Service Commission (Todd A. Wigder, Deputy Attorney General, on the statement in lieu of brief). PER CURIAM
This is an appeal and cross-appeal from a February 2, 2011 final decision of the Civil Service Commission (Commission) finding appellant Angelo Andriani, a Hoboken police lieutenant, guilty of conduct unbecoming and rude behavior, and imposing discipline of a 180-day suspension. Appellant complains these findings and penalty are arbitrary and capricious. The City of Hoboken (Hoboken) cross-appeals, contending the evidence also supports the dismissed charges of violating the "under suspension" rule, untruthfulness and neglect of duty, warranting removal from office. We affirm.
Andriani is a twenty-two-year veteran of the Hoboken Police Department, who attained the rank of lieutenant. He was suspended from the Department on February 28, 2008, due to an unrelated disciplinary matter, which apparently is still pending. Prior to the present matter, that suspension was the only disciplinary action ever taken against Andriani during his career as a Hoboken police officer. At the time of his suspension, Andriani was ordered, pursuant to departmental policy, to hand over all departmental property, including his badge and identification card. Those items were then secured in a box in the Department's Internal Affairs (IA) Division.
While his suspension was still pending, Andriani was involved in the present incident, which occurred on January 18, 2010, when he identified himself as a police lieutenant and displayed a badge and an identification (ID) card to Transportation Security Administration (TSA) officials responding to a disturbance at Tampa International Airport. According to the TSA supervisor on duty, Deborah Martineau, Andriani became "upset and irate" when members of the flight crew were allowed to go to the front of the screening line in which he was standing, waiting to board a flight to Newark. He also complained that the only reason he was put into the body imager was because of the commotion he caused in the front. Martineau then explained to Andriani that flight crewmembers go to the head of the line as a common courtesy and that the selection for the body imager is a continuous, random process.
Apparently Andriani was not satisfied with this explanation. According to Martineau, Andriani was "in [her] face[,]" "kind of arrogant[,]" and "kind of condescending." When he demanded the names of everyone involved because he wanted to file a formal complaint, Martineau responded that she would not disclose her officers' names but instead identified herself, and informed Andriani that TSA's complaint policy provided for the filing of complaints through its website or by telephone, not by filling out a form at the airport.
Still not satisfied, Andriani identified himself as a police lieutenant and opened his wallet to display a police badge. Martineau saw the badge "real quick" and described it as a "typical badge." Martineau told Andriani that his status as a police officer had no bearing on whether he could file a complaint at that time. She then obtained an information sheet with the telephone number and website for filing a complaint, wrote her name and title on the bottom, and gave the sheet to Andriani. She then walked away.
Martineau was standing by the x-ray machine when a TSA officer approached and informed her that Andriani returned and was taking pictures of her and the area. Martineau informed Andriani that he could not take pictures, but Andriani responded that it was his right to take pictures. According to Martineau, Andriani "was very rude. Just, again, condescending. That's the only thing that ever comes to mind with everything he said to me." The Tampa International Airport Police were then contacted.
Officer Alex Melendez responded and was advised of the situation. Andriani explained to Melendez that flight crew members were allowed to go ahead of him in line; he had wanted to file a formal complaint so he asked for the names of the TSA employees; and he was unable to obtain their names so he took photographs of the area. According to Melendez, Andriani was "calm" and cooperative during their conversation. Responding to Melendez's inquiry, Andriani said that he was in law enforcement for over twenty years, and was a lieutenant with the Hoboken Police Department; he then produced his badge and ID. The badge was blue and gold, and inscribed with the words "Hoboken Police Department" and the title of "lieutenant." The ID card included Andriani's name and picture. Both the badge and ID card appeared authentic to Melendez. Andriani never stated that he was an active member of the police department nor was he ever asked the question. Andriani was allowed to board his flight.
According to Lieutenant Daniel Lobue of the IA Division of the Hoboken Police Department, it is common practice for a police officer to possess a duplicate badge and there is no rule or regulation barring an officer under suspension from identifying himself as a police officer.
Based on this incident, on January 29, 2010, the City of Hoboken filed a Preliminary Notice of Disciplinary Action (PNDA), charging Andriani under Civil Service Regulations, N.J.A.C. 4A:2-2.3(a), with incompetency, inefficiency or failure to perform duties; conduct unbecoming a public employee; neglect of duty; and other sufficient cause for removal. Hoboken also charged Andriani with violating thirteen Police Department rules and regulations concerning suspended officers. The PNDA stated:
You have been suspended with pay since February 28, 2008.
You are now being suspended without pay to maintain safety, health, order or effective direction of public services as a result of your following actions:
On January 18, 2010, you caused a disturbance at the Tampa International Airport when TSA personnel allowed flight crew members to cut ahead of you in the Security Screening Line. During the conversation with TSA personnel, you misrepresented yourself as an active Hoboken Police Lieutenant. You presented a gold Hoboken Police Lieutenant badge and a Hoboken Police Department Identification Card to a Tampa International Airport police officer.
Pursuant to Hoboken Police Department Rules and Regulations, you were obliged to immediately surrender your badge and identification card to your commanding officer immediately upon suspension. You failed to return these items.
Since you are already on suspension from the Department, you did not have the right to represent yourself as an active Hoboken Police Lieutenant. You falsely implied you were an active member of the Hoboken Police Department and withheld the fact that you were on suspension to Tampa International Airport police by displaying identification to represent yourself as a Hoboken Police Lieutenant.
Your egregious behavior at the Tampa International Airport was disorderly, rude, abrasive, and abhorrent, and you have brought disrepute upon the Hoboken Police Department.
Following a departmental hearing, Hoboken issued a Final Notice of Disciplinary Action (FDNA) on May 10, 2010, sustaining the charges of incompetency, inefficiency, or failure to perform duties; conduct unbecoming a public employee; neglect of duty; other sufficient cause; and violation of the following excerpted sections of the Department's rules and regulations:
3:12.5 Truthfulness. Members and employees are required to be truthful at all times whether under oath or not.The FNDA ordered the immediate removal of Andriani from his position.
4:5.2 Under suspension. Any member under suspension shall immediately surrender his badge, firearm, I.D. card and all other department property to his commanding officer pending disposition of all the case.
8:1.6 Causes for removal. Acts or omissions, which are reasonably encompassed within standards A thru L, shall provide, upon a finding of guilt, sufficient prima facie evidence to establish justifiable cause for termination from the service, irrespective as to whether or not the member had previously violated said standard. Relevant standards are as follows:
A. Neglect of Duty8:1.17 Using rude or insulting language or conduct offensive to the public.
D. Insubordination or serious breach of discipline
G. Disorderly or immoral conduct
H. Willful violation of any of the provisions of the Civil Service Statutes, rules, or regulations or other statutes relative to the employment of public employees.
K. Conduct unbecoming an employee in the public service.
8:1.22 Conduct subversive of good order and the discipline of the Department.
8:1.34 Failure to comply with the Chief's orders, directives, regulations, etc., oral and written, and also those of superiors and supervisors.
8:1.43 Neglect of Duty.
Andriani appealed and the contested matter was referred to the Office of Administrative Law (OAL). Following a hearing, the Administrative Law Judge (ALJ) dismissed the charges based on violations of police department rules concerning suspended officers (Rule 4:5.2), but upheld the charges of conduct unbecoming a public employee. The ALJ reasoned that Hoboken's "Under Suspension" rules do not specifically address the actions a police officer may or may not take while on suspension. However, the rules evince the clear intent to prohibit a suspended officer from identifying himself as an officer through the use of a badge or identification card.
On this score, the ALJ concluded that Hoboken had not shown a specific violation of the rules, but that Andriani intended to create the impression he was an active member of the City's police department by showing the badge and identification card and that this behavior constituted conduct unbecoming a public employee. The ALJ also found that Andriani was angry, condescending, and argumentative with TSA officials and that this conduct constituted a violation of other police department rules (Rule 8:1.17) prohibiting "rude or insulting language or conduct offensive to the public." However, the ALJ recommended reducing the removal penalty to a ninety-day suspension in light of the nature of the infractions and considering Andriani's length of service and the absence of adjudicated prior disciplines.
On review, the Commission adopted the ALJ's findings and conclusions, and therefore sustained the disciplinary charges upheld by the ALJ. However, the Commission determined to impose a six-month suspension. As the Commission reasoned, Andriani had been employed since 1984 with only one prior disciplinary action, a February 28, 2008 suspension that apparently had not been fully adjudicated at the time of the Commission's decision. On the other hand, the Commission emphasized that a police officer is a special kind of public employee who must obey the law and exercise tact, restraint and good judgment in order to maintain the public's respect and confidence. According to the Commission, the record here showed that Andriani had exercised poor judgment, especially for a superior officer, and in the circumstances of the case it is appropriate to impose the maximum penalty short of removal. This serious penalty, observed the Commission, will serve as a warning to Andriani that this misconduct will not be tolerated in the future and may lead to his removal. Finally, the Commission awarded mitigated back pay for the period following Andriani's six-month suspension and until his reinstatement. Counsel fees were not awarded because Andriani had not prevailed on all or substantially all of the charges as required by N.J.A.C. 4A:2-2.12(a).
On appeal, the City of Hoboken raises the following issues:
I. THE AGENCY'S FINDINGS, CONCLUSIONS AND SANCTIONS ARE ERRONEOUS AS THEY ARE ARBITRARY, UNREASONABLE AND NOT SUPPORTED BY THE RECORD.
A. THE AGENCY WAS ARBITRARY AND UNREASONABLE IN RULING ANDRIANI DID NOT VIOLATE THE "UNDER SUSPENSION" RULE.
B. THE AGENCY'S CONCLUSION THAT THE RESPONDENT'S CONDUCT DID NOT VIOLATE THE RULE GOVERNING TRUTHFULNESS WAS UNREASONABLE.
C. ANDRIANI'S CONDUCT CONSTITUTED NEGLECT OF DUTY.
D. THE AGENCY WAS ARBITRARY AND UNREASONABLE BY NOT FINDING ANDRIANI CAUSED A DISTURBANCE.
E. THE PENALTY IMPOSED WAS UNREASONABLE IN LIGHT OF THE EGREGIOUS CONDUCT.
Andriani raises the following issues on cross-appeal:
I. THE CIVIL SERVICE COMMISSION'S FINAL DECISION AFFIRMING THE CHARGE OFWe reject all of these contentions and therefore affirm substantially for the reasons stated by the Commission in its written opinion of February 2, 2011. We add only the following comments.
CONDUCT UNBECOMING IS ARBITRARY AND CAPRICIOUS AND NOT SUPPORTED BY THE RELIABLE CREDIBLE EVIDENCE IN THE RECORD.
II. THE CIVIL SERVICE COMMISSION'S FINAL DECISION AFFIRMING THE CHARGE FOR VIOLATING RULE 8:1.17 THE CONDUCT OF RUDE OR INSULTING LANGUAGE OR CONDUCT OFFENSIVE TO THE PUBLIC IS ARBITRARY AND CAPRICIOUS AND NOT SUPPORTED BY THE RELIABLE CREDIBLE EVIDENCE IN THE RECORD.
III. THE CIVIL SERVICE COMMISSION FAILED TO FOLLOW THE PRINCIPLES OF PROGRESSIVE DISCIPLINE AS THE PENALTY OF A SIX-MONTH SUSPENSION WAS EXCESSIVE.
Our review of an administrative agency decision is limited. Pub. Serv. Elec. v. N.J. Dep't of Envtl. Prot., 101 N.J. 95, 103 (1985). We will only reverse a decision of an administrative agency if it is arbitrary, capricious, or unreasonable. Brady v. Bd. of Rev., 152 N.J. 197, 210 (1997). This court must "defer to an agency's expertise and superior knowledge of a particular field." Outland v. Bd. of Trustees of the Teachers' Pension & Annuity Fund, 326 N.J. Super. 395, 400 (App. Div. 1999). In this regard, a presumption of reasonableness attaches to a decision of the Commission. In re Carroll, 339 N.J. Super. 429, 437 (App. Div.), certif. denied, 170 N.J. 85 (2001). "If the original findings are supported by substantial credible evidence in the record as a whole, we must accept them." Outland, supra, 326 N.J. Super. at 400.
The department's "under suspension" rule states, "[a]ny member under suspension shall immediately surrender his badge, firearm, I.D. card and all other department property to his commanding officer pending disposition of all the case." The ALJ and Commission found that this rule does not address duplicate badges nor does it address the actions a police officer may or may not take while on suspension. Thus, both the ALJ and Commission concluded that Andriani's actions are more properly classified as constituting conduct unbecoming a public employee.
We find no fault with this determination. Andriani complied with this rule by returning his badge and identification card on the date of his 2008 suspension. Moreover, this rule does not regulate the conduct of an officer while suspended, and does not specify what actions are permitted while suspended. As the IA Division Chief testified, it is common practice for officers to acquire duplicate badges and identification cards. While the purpose of the rule may obviously be undermined by a display of any outward symbol of police authority while suspended from the force, the fact remains the rule simply does not address duplicate badges, either their return or their display. As such, the Commission, in our view, correctly determined that Andriani's actions were more representative of conduct unbecoming an officer than violative of the "under suspension" rule.
The same may be said regarding the Commission's finding that Andriani did not violate the rule governing truthfulness. This rule states that "Members and employees are required to be truthful at all times whether under oath or not." The Commission agreed with the ALJ that while Andriani did not state he was an active member of the Hoboken Police Department, "he created and perpetuated this false impression by showing the badge and identification card." However, the Commission and ALJ found this to be indicative of conduct unbecoming an officer and not untruthfulness.
We agree. Andriani did not inform Martineau or Melendez that he was an active member of the Hoboken Police Department or that he was on duty. There is no rule stating an officer has to disclose his suspended status. Moreover, there is no rule prohibiting a suspended officer from stating he is an officer. In fact, the rule makes no mention of any distinction between active and non-active members of the police department. While Andriani may have created a false impression that he was an active member of the force, the Commission properly found his omission more indicative of conduct unbecoming an officer.
For these same reasons, we reject Andriani's counter-argument that the evidence does not support the finding of unbecoming conduct. N.J.A.C. 4A:2-2.3(a)(6) states that an officer may be disciplined for "conduct unbecoming a public employee." Regarding this standard:
It is settled in this State that a police officer's misconduct need not have occurred while he was on duty. Suspension or even removal may be justified where such misconduct occurred while he was off-duty . . . . Were the matter otherwise, the desired goal of upholding the morale and discipline of the force, as well as maintaining public respect for its officers, would be undermined. Nor need a finding of misconduct be predicated upon the violation of any particular rule or regulation, but may be based merely upon the violation of the implicit standard of good behavior which devolves upon one who stands in the public eye as an upholder of that which is morally and legally correct.
[In re Emmons, 63 N.J. Super. 136, 140 (App. Div. 1960) (citations omitted).]
The Commission's finding that Andriani's conduct was unbecoming a public employee is well-supported by the evidence. A violation of a department regulation was not required to find that Andriani engaged in conduct unbecoming a public employee. Andriani intentionally identified himself as a police lieutenant likely to influence Martineau to file a grievance on his behalf. As noted, while Andriani did not explicitly state he was an active member of the police department, he plainly created a false impression that he enjoyed such status. Moreover, his conduct towards Martineau was condescending and rude during their encounter and, as such, his actions and attitude were likely to bring disrepute to the Hoboken Police Department. As a police officer, Andriani is clearly held to a higher standard of conduct as he represents law and order to the public, In re Phillips, 117 N.J. 567, 576-77 (1990), and his actions therefore had the capacity to undermine the public's respect for, and trust and confidence in, the Hoboken Police Department. Thus, the Commission was not arbitrary, capricious or unreasonable in sustaining the charge of conduct unbecoming a public employee based on Andriani's behavior.
Lastly, both parties challenge the discipline imposed as either too lenient or too harsh. We find the Commission struck the appropriate balance in imposing a six-month suspension.
As noted, we "defer to an agency's expertise and superior knowledge of a particular field." Outland, supra, 326 N.J. Super. at 400. Regarding discipline of public employees, the Court has stated:
[W]e have not regarded the theory of progressive discipline as a fixed and
immutable rule to be followed without question. Instead, we have recognized that some disciplinary infractions are so serious that removal is appropriate notwithstanding a largely unblemished prior record. . . . Thus, we have noted that the question for the courts is whether such punishment is so disproportionate to the offense, in the light of all the circumstances, as to be shocking to one's sense of fairness.
[In re Carter, 191 N.J. 474, 484 (2007) (internal citations and quotation marks omitted).]
In imposing the six-month suspension, the Commission stated:
In the instant matter, [Andriani's] prior disciplinary history since his employment in 1984 includes one prior action which has apparently not yet been fully adjudicated. Given [Andriani's] length of service, the nature of the incident and charges upheld, the Commission cannot sanction the termination of this employee. As such, the Commission determines that the appropriate penalty in this case is a six-month suspension.
The Commission notes that a municipal police officer is a law enforcement employee who must enforce and promote adherence to the law. Municipal police officers hold highly visible and sensitive positions within the community and the standard for an applicant includes good character and an image of utmost confidence and trust.
. . . .
In the instant matter, the record reflects that [Andriani] is a superior officer and such conduct is indicative of [Andriani's] exercise of poor judgment. Thus, it is
appropriate to impose the maximum penalty short of removal, namely, a six-month suspension. Such a serious penalty shall serve to warn [Andriani] that such conduct will not be tolerated in the future, and future disciplinary infractions may lead to his removal.
We agree. The Commission reasonably found that removal of Andriani was too severe a discipline given the absence of any prior adjudicated rule infraction and his otherwise commendable service record, and, on the other hand, the 90-day sanction recommended by the ALJ was too lenient in light of the seriousness of his misconduct. Thus, the six-month suspension ultimately imposed was clearly not so disproportionate to the infractions of which Andriani was properly found guilty as to be shocking to our sense of fairness and, in our view, struck an appropriate balance between the competing concerns involved. See In re Hermann, 192 N.J. 19, 27-28 (2007) (upholding the penalty imposed by the Merit System Board for conduct unbecoming a public employee, noting the "deference owed" by courts when reviewing such administrative sanctions, and that the test is ''whether such punishment is so disproportionate to the offense, in light of all the circumstances, as to be shocking to one's sense of fairness'") (internal citation omitted).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION