Opinion
DOCKET NO. A-5069-10T1
07-17-2012
IN THE MATTER OF JAMES WALKER, CENTRAL OFFICE POLICE, DEPARTMENT OF HUMAN SERVICES.
Alterman & Associates, LLC, attorneys for appellant James Walker (Christopher A. Gray, on the brief). Jeffrey S. Chiesa, Attorney General, attorney for respondents Central Office Police, Department of Human Services (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Brandon T. Hawkins, Deputy Attorney General, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Sabatino and Kennedy.
On appeal from the New Jersey Civil Service Commission, CSC Docket No. 2009-488.
Alterman & Associates, LLC, attorneys for appellant James Walker (Christopher A. Gray, on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondents Central Office Police, Department of Human Services (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Brandon T. Hawkins, Deputy Attorney General, on the brief). PER CURIAM
James Walker appeals from the final administrative decision of the Civil Service Commission (CSC) accepting and adopting the findings and conclusions of an administrative law judge (ALJ), and affirming Walker's termination from employment as a senior police officer with the Department of Human Services (DHS). Having considered the record and applicable legal standards, we affirm.
I.
On September 2, 2008, Walker was served with five separate preliminary notices of disciplinary action, each of which sought his removal from office. The first notice charged that in 1999 Walker had been criminally charged with issuing bad checks to a grocery store, and later pled guilty to a downgraded charge of disorderly conduct and failed to report the offense to the DHS Chief of Police. It was also asserted that he lied about the existence of that offense during an internal review in 2008.
The next three notices charged him with driving on duty at different times in 2005 and 2006 while his driving privileges had been suspended and failing to inform the Chief of Police of the suspensions.
The fifth notice charged that Walker received a summons for operating an unregistered vehicle in 2007 and that a warrant for his arrest was issued for failure to appear in court or pay a fine. It also charged that Walker likewise failed to inform the Chief of Police of that offense, and that he continued working as a police officer while the arrest warrant was outstanding.
On October 27, 2008, Walker received two more preliminary notices of disciplinary action seeking his removal from office. The first notice charged that Walker failed to inform the DHS police department that he had registered the name of his private security business, "Walker's 1 Stop Security," with the county clerk and that he later "denied any knowledge of involvement with a security firm." The second notice charged that Walker failed to notify the police department that he had registered "Walker's 1 Stop Retail" with the county clerk and later ran the business.
Each of the notices charged that Walker's actions constituted conduct unbecoming a public employee, contrary to N.J.A.C. 4A:2-2.3(a)6, and violated various DHS administrative orders. Each charge was initially sustained and Walker was consequently removed from his position as a senior police officer. Walker administratively appealed and the disciplinary actions were transferred to the Office of Administrative Law, where they were consolidated for disposition before an ALJ.
The parties submitted to the ALJ a "Joint List of Stipulated Facts" and no testimony was taken. Walker conceded in the stipulation all of the facts underlying the charges, except he denied that he had lied about the bad check charges or his involvement with the security firm in the 2008 internal review. Further, the parties stipulated that Walker had been hired as a police officer with the DHS in 1999 and had been the subject of oral counseling, written warnings, reprimands and suspensions for various other infractions, on twelve occasions between 2001 and 2008.
The ALJ concluded that the DHS had proved all its charges against Walker by a preponderance of the evidence, with the exception of making false statements during the internal review in 2008. The ALJ further determined that the termination of Walker was the appropriate penalty for the infractions, stating:
The appropriate penalty for appellant's actions is removal from his employment as a Senior Police Officer. Those who serve and protect as police officers are not solely government employees. They are, in fact and law, public officers, and as such are held to a higher standard of conduct, because of the inherent power and public trust of their position. Moorestown v. Armstrong, 89 N.J. Super. 560, 566 (App. Div. 1965); In re Phillips, 117 N.J. 567 (1990), See also, Bowden v. Bayside State Prison, 268 N.J. Super. 301, 306 (App. Div. 1993), certif. denied, 135 N.J. 469 (1994). Conscious, willful missteps of a police officer almost always must be viewed as far more reprehensible, centered on public safety as their work is. Discipline among police officers must therefore be viewed as crucial.The CSC adopted the findings and conclusions of the ALJ and affirmed the termination of Walker in a final agency decision issued on May 18, 2011. This appeal followed.
In this case, appellant's stipulated conduct per se is marked by manifest disregard for adherence to rules and regulations which are at the heart of a police department, which is by definition a paramilitary organization. Appellant not only violated the pertinent rules cited in respondent's charges, but did so after receipt of those rules at the outset of his
career, along with the Department's Code of Ethics, the Uniform Ethics Code and the plain language Guide to New Jersey Executive Branch Ethics Standards (Stipulations D and E). Appellant's disregard of these controlling regulations must also be considered together with the minor disciplinary history outlined in Stipulations L through R. In view of this history, appellant's continued employment in the Department's law enforcement agency would ignore the special status and the enhanced obligations of conduct peculiar to police officers. This would not be in the public interest, the protection of which must be the paramount concern.
II.
In support of his appeal, Walker argues that the CSC "did not properly apply the principles and factors of progressive discipline to this case" and imposed an "overly harsh penalty" upon him. We disagree.
Our "review of a final agency [action] is [quite] limited." In re Carter, 191 N.J. 474, 482 (2007). "[I]f in reviewing an agency decision an appellate court finds sufficient credible evidence in the record to support the agency's conclusions, that court must uphold those findings even if the court believes that it would have reached a different result." In re Taylor, 158 N.J. 644, 657 (1999). We "will reverse the decision of the administrative agency only if it is arbitrary, capricious or unreasonable or it is not supported by substantial credible evidence in the record as a whole." Ibid. (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980)) (internal quotation marks omitted). Moreover, "courts should take care not to substitute their own views of whether a particular penalty is correct for those of the body charged with making that decision." Carter, supra, 191 N.J. at 486. "[W]hen reviewing administrative sanctions, 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." In re Herrmann, 192 N.J. 19, 28-29 (2007) (citations and internal quotation marks omitted).
"[A] dismal disciplinary record can support an appointing authority's decision to rid itself of a problematic employee based on charges that, but for the past record, ordinarily would have resulted in a lesser sanction." In re Stallworth, 208 N.J. 182, 196 (2011) (quoting In Re Herrmann, supra, 192 N.J. at 32 (2007)); see also In re Hall, 335 N.J. Super. 45, 51 (App. Div. 2000) (reinstating a police officer's dismissal for attempted theft because insufficient weight had been given to the officer's prior violations); In re Morrison, 216 N.J. Super. 143, 147, 160-6 (App. Div. 1987) (holding that a police officer's "substantial history" of infractions and his recent weighty suspension supported dismissal after the subject incident). Similarly, the concept of progressive discipline can be utilized to "'ratchet-up' or 'support imposition of a more severe penalty for a public employee who engages in habitual misconduct.'" Stallworth, supra, 208 N.J. at 196 (quoting Herrmann, supra, at 30-33).
Guided by these principles, we cannot conclude that the CSC imposed an "overly harsh penalty" upon Walker. The record shows that Walker committed a series of serious breaches of his obligations and duties over the course of several years. On each occasion, Walker failed to disclose his infractions to the DHS. Further, Walker's record, beyond the charges at issue in this appeal, is not unblemished. As we have noted, Walker has been the subject of repeated disciplinary actions while serving as a DHS police officer. He has received counseling, warnings and has been suspended twice.
This case does not warrant appellate intervention. The record contains substantial credible evidence to support the CSC's final decision, which was by no means "so wide off the mark as to be manifestly mistaken." Tlumac v. High Bridge Stone, 187 N.J. 567, 573 (2006). Given our limited standard of review, we defer to that well-supported decision.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION