Opinion
DOCKET NO. A-3652-13T2
05-02-2016
JOSEPH M. PALLADINO, III, Plaintiff-Appellant, v. TOWNSHIP OF WATERFORD, Defendant-Respondent.
Arthur J. Murray argued the cause for appellant (Jacobs & Barbone, P.A., attorneys; Louis M. Barbone, of counsel and on the briefs; Mr. Murray, on the briefs). Timothy J. Higgins argued the cause for respondent.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Alvarez, Ostrer, and Haas. On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-5081-11. Arthur J. Murray argued the cause for appellant (Jacobs & Barbone, P.A., attorneys; Louis M. Barbone, of counsel and on the briefs; Mr. Murray, on the briefs). Timothy J. Higgins argued the cause for respondent. PER CURIAM
Joseph M. Palladino, III, a former member of the Waterford Police Department, appeals the Law Division's de novo decision sustaining a hearing officer's findings of disciplinary violations and Waterford's decision to terminate his employment. We affirm.
I.
Waterford is a non-civil service municipality. N.J.S.A. 40A:14-147 through -151 governs non-civil service police disciplinary proceedings. See Ruroede v. Borough of Hasbrouck Heights, 214 N.J. 338, 353-55 (2013). After a lengthy administrative proceeding pursuant to the statute, a hearing officer sustained disciplinary charges filed against Palladino. The charges were: S-1 through S-7 (false time reports), S-8 (failure to report prescription medications), S-10 (tape recording fellow officers), S-12 (insubordination), and S-13 (untruthfulness).
Although Waterford adopted the hearing officer's findings, Waterford rejected the recommended sanction of six months' suspension. Instead, Waterford terminated Palladino's employment.
Palladino appealed pursuant to N.J.S.A. 40A:14-150. After de novo review "on the record below" on March 5, 2014, a Law Division judge rendered a decision sustaining the charges and Waterford's imposition of termination as the appropriate penalty. This appeal followed.
II.
A.
We glean the following circumstances from the testimony and documentary evidence adduced during the hearing. Palladino joined the force in 1994; he was terminated effective September 29, 2011.
Although witnesses referred to Palladino's prior disciplinary history, neither the hearing officer nor the Law Division judge mentioned it in their decisions. The only documents referencing prior disciplinary actions were Palladino's August 27, 2009 psychiatric evaluation, conducted at Police Chief John Knoll's direction.
The August 27, 2009 report mentions "a large number of instances of inappropriate behavior dating back to May[] 1996 when it was requested that [Palladino] be removed from the DARE program as his manner in dealing with the children was not approved[.]" That report also describes a May 1998 party Palladino attended, during which he allegedly pointed his "laser aided firearm at a guest." In December 2006, he "and another officer falsified their reports and were untruthful in [an] investigation" and were sanctioned by terms of suspension.
In March 2008, Palladino satisfied a seventy-five-day suspension by forfeiting accrued time. It is not clear from the record if that suspension was in addition to, or the same as, the 2006 suspension for false reports.
When the psychiatrist asked Palladino for his version of the disciplinary incidents, "Palladino stated with a glare at [the] examiner that these are simply the department's view and that none of it is true."
Knoll testified that on one occasion he allowed Palladino to forfeit accrued time as a disciplinary sanction in lieu of a suspension, and Palladino acknowledged the arrangement in writing. Knoll also said there might have been a couple of additional verbal reprimands against Palladino. Knoll's testimony did not clearly correspond with the information regarding disciplinary history found in the psychiatric report.
B.
On May 13, 2008, Palladino filed a Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -14, complaint against the Department. He alleged that Waterford failed to comply with staffing guidelines and other standard police protocols.
Early in 2009, Police Lieutenant Daniel Cormaney, the Department's internal affairs officer, began to investigate Palladino because he was claiming an unusual amount of overtime. Cormaney testified that when he began his investigation, he was unaware that Palladino had named him in the CEPA complaint. Cormaney only recalled Palladino telling him, after the investigation began, that he had filed a lawsuit regarding being passed over for promotion to sergeant.
C.
On February 26, 2009, between 3:30 and 4:00 p.m., Knoll saw Palladino heading home from the firing range where he had been assigned as firearms instructor. Palladino's time sheet for the day indicated he worked until 6:30 p.m. When Knoll asked for an explanation of the discrepancy, Palladino responded that he took his dinner break and went home, and returned either to the station or range.
The county complex housing the firing range is equipped with a number of security cameras. On March 6, 2009, Cormaney obtained time-stamped video footage which established that Palladino had worked the following hours:
| DATE | ARRIVAL | DEPARTURE |
| February 23, 2009 | 6:43 a.m. | 3:04 p.m. |
| February 24, 2009 | 6:37 a.m. | 3:08 p.m. |
| February 25, 2009 | 6:39 a.m. | 3:42 p.m. |
| February 26, 2009 | 6:42 a.m. | 3:12 p.m. |
| February 27, 2009 | 7:14 a.m. | 12:11 p.m. |
Palladino submitted time reports for those days claiming he worked from 6:00 a.m. to 6:30 p.m. Eventually, Knoll filed S-1 through S-7, charging Palladino with submitting falsified time reports for February 11, 13, 23, 24, 25, 26, and 27, 2009, all days on which Palladino was serving as a firearms instructor. The Department's concerns about Palladino's time reports were communicated to the Camden County Prosecutor's Office, which declined to take action.
On March 12, 2009, the time records were returned to Waterford. Cormaney then continued the internal affairs investigation and attempted to schedule an interview with Palladino.
The interview, which resulted in charge S-13, was delayed until August 2009. Palladino initially declined to participate and was later hospitalized in April 2009 for appendicitis. He did not return to duty until July 20, 2009, and was finally interviewed, accompanied by his attorney, on August 13.
When asked if he was at the range every day until 4:30 p.m., Palladino said "[t]hat's correct" and denied ever having left earlier. When asked a second time if he ever left earlier, Palladino replied, "usually no." He later repeated that he always left between 4:30 and 5:00, and denied ever leaving before 3:30 p.m. Palladino also claimed he would go home to eat but return to continue with the classes. However, there were no evening classes on the relevant dates.
Palladino also denied ever talking to Knoll at the range or being questioned about his time reports. He later said he could not recall his conversations with Knoll.
Charge S-8 arose from Palladino's failure to report, as required by departmental rules, having been prescribed Paxil and Zoloft. The Department belatedly learned he had been taking the medication for years through answers to interrogatories in the CEPA case. Palladino claimed he was unaware that he was required to report his medication use and insisted the drugs did not impair him in any event.
Charge S-10 alleges Palladino violated departmental policy by secretly tape recording conversations with other officers. Palladino admitted, again, in answers to interrogatories in his CEPA case, to taping his colleagues in the workplace so as to obtain evidence. Before the taping, Palladino had signed an acknowledgment of the Department's policy against "surreptitious recording" of such conversations; Knoll had also issued a general order to that effect.
Charge S-12 alleged Palladino was guilty of insubordination arising from his failure to comply with orders to submit a special report. Palladino informed Cormaney that he found a note stating "no good rat" in his departmental mailbox. Cormaney agreed to open an internal affairs investigation, and asked Palladino to submit a written special report. Palladino then became "irate" and "agitated," asserting that he had no obligation to provide anything. On May 14, 2009, Cormaney issued Palladino a written order directing he submit a written special report regarding the incident. Palladino claimed he did prepare such a report, but Cormaney never received it.
III.
In his de novo review, the Law Division judge considered all the disciplinary hearing transcripts, the exhibits, and written closings. He found all the charges were substantiated.
The range video films contradicting Palladino's time card reports and daily activity reports established charges S-1 through S-7. The judge further found that Palladino's statements in his administrative interview "tend[ed] to substantiate those charges." He considered those the most serious allegations.
Palladino admitted to failing to report his use of Zoloft and Paxil. Thus Waterford proved charge S-8.
As to S-10, Palladino also admitted that he "recorded fellow officers, in connection with his civil suit, without their knowledge." This violated Department policy.
The judge found no evidence that either refuted or undermined the testimony of Cormaney and Knoll establishing S-12 and S-13, insubordination and untruthfulness charges. Therefore those charges were substantiated as well.
The judge said:
My independent review of the quality and quantity of evidence presented to the [h]earing [o]fficer reveals that "sufficient, competent evidence supported the charges" against [Palladino]. Ruroede[, supra, 214 N.J. at 357]. There is ample evidence in the record to support the findings of [the hearing officer] regarding the violations of [c]harges 1-7, 8, [10], 12[,] and 13, including the contents of the statement of [Palladino.] . . . In short, the burden upon [Waterford] has been met by the evidence incorporated herein by reference, as to all charges that the [h]earing [o]fficer found were violated by [Palladino].He observed that the charges related to Palladino's false time reporting went "to the heart of a law enforcement officer's responsibility—honesty and truthfulness," hence supported the penalty of termination. That decision did not shock his sense of fairness and warranted the penalty. He found no merit to Palladino's contention that the internal affairs investigation was biased because of the lawsuit.
The judge further found as a matter of law that "there [was] no evidence in the record upon which the [c]ourt could rely to conclude that the [forty-five-]day limitation set forth in N.J.S.A. 40A:14-147 began to run before August 20, 2009." Cormaney sent the investigation results to Knoll on August 20, 2009, one week after Palladino's interview. The charges against Palladino were filed within forty-five days on September 22, 2009.
On appeal, Palladino raises eight points of error:
Point I
Even Assuming Arguendo The Bona Fides Of The Sustained Discipline Against Palladino, Termination Was Inappropriate Under The Circumstances And Was An Affront To New Jersey's Long Held Jurisprudence Of Progressive Discipline.
Point II
Any Disciplinary Charges Sustained Against Palladino Based On His Surreptitiously Tape Recording Co-Workers And/Or Supervisors Are Void Ab Initio As Violative Of The Federal Constitution And The New Jersey State Constitution.
Point III
Any Universal Ban On "Whistleblowing" Employees Surreptitiously Tape Recording Co-workers And/Or Supervisors Are Void Ab Initio As Violative Of The Protections Afforded Under New Jersey's [CEPA].
Point IV
Any Insubordination Charge Against Palladino Stemming From The "No Good Rat" Note Is Void Ab Initio As Incompatible With The Public Policy Considerations Of The [CEPA] Due To Palladino's Dual Role As Employee Police Officer As Well As An Employee Victim Of Retaliation At The Time Of The Alleged Insubordination.
Point V
Palladino's Answering Of Interrogatories In The Underlying Whistleblowing Civil Case And The Forwarding Of Same To Counsel For Waterford Was The Functional Equivalent Of
Notifying The Chief Of Police And Constituted Substantial Compliance With Waterford's Policy.
Point VI
The De Novo Judge Failed To Substantiate The Charge Of Untruthfulness In S13.
Point VII
The Lack Of Specificity As To The Purported Untruthfulness In Palladino's Statement Of August 13, 2009 Renders It Impossible To Substantiate The Charge Of Untruthfulness In S13.
Point VIII
The De Novo Judge Erred As A Matter Of Law By Denying Dismissal Of Charges S1 Through S7 Based Upon Waterford's Blatant Violation Of The 45-Day Rule.
In his reply brief, Palladino added the following points:
Point I
BASED ON THE FILED WRITTEN OPINION OF THE DE NOVO JUDGE, WHICH INCORPORATED BY REFERENCE THE ENTIRETY OF THE FINDINGS OF THE UNDERLYING HEARING OFFICER, WATERFORD IS COLLATERALLY ESTOPPED FROM NOW ARGUING THAT THE RECORD BEFORE THIS COURT SHOWS PALLADINO HAD A SUSTAINED 75-DAY SUSPENSION IN HIS PERSONNEL JACKET AT THE TIME OF THE CHARGES AT ISSUE IN THIS MATTER.
Point II
WATERFORD IGNORES PALLADINO'S "INTE[N]TIONAL FRACTIONIZATION" ARGUMENT.
Point III
POINT II OF PALLADINO'S MOVING BRIEF IS CLEARLY AN ISSUE OF FIRST IMPRESSION IN THE S[T]ATE OF NEW JERSEY.
Point IV
POINTS III AND IV [OF] PALLADINO'S MOVING BRIEF ARE CLEARLY ISSUES OF FIRST IMPRESSION IN THE STATE OF NEW JERSEY.
IV.
N.J.S.A. 40A:14-150 provides for de novo review of disciplinary actions against police officers in non-civil service municipalities by the Law Division:
Any member or officer of a police department or force in a municipality . . . who has been tried and convicted upon any charge or charges, may obtain a review thereof by the Superior Court . . . The court shall hear the cause de novo on the record below and may either affirm, reverse[,] or modify such conviction.
This review is designed "to provide employees of non-civil service communities with an independent tribunal to review their disciplinary actions." Ruroede, supra, 214 N.J. at 357 (quoting In re Phillips, 117 N.J. 567, 577-78 (1990)). The goal "is to provide redress for members of the police department who are discharged for political reasons" and "to ensure that a neutral, unbiased forum will review disciplinary convictions." Phillips, supra, 117 N.J. at 577, 580.
The Law Division "consider[s] the matter anew, afresh[,] and for a second time[,] . . . mak[ing] its own findings of fact." Ruroede, supra, 214 N.J. at 357 (internal quotation marks omitted) (citation omitted). It is not bound by the hearing officer's credibility determinations. Phillips, supra, 117 N.J. at 579-80. The Law Division "review[s] the [record] to determine whether sufficient, competent evidence support[s] the charges," which need only be established by a preponderance of the evidence. Ruroede, supra, 214 N.J. at 357.
When considering the penalty the municipality imposed upon the officer, a court asks "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 Carter, 191 N.J. 474, 484 (2007); In re Herrmann, 192 N.J. 19, 28-29 (2006). The Law Division may modify, but not increase or enhance the penalty. Cosme v. Borough of E. Newark Twp. Comm., 304 N.J. Super. 191, 201-02 (App. Div. 1997), certif. denied, 156 N.J. 381 (1998).
An appellate court's role in reviewing the de novo proceeding is "limited." Phillips, supra, 117 N.J. at 579. We "must ensure [that] there is 'a residuum of legal and competent evidence in the record to support'" the hearing officer's decision. Ruroede, supra, 214 N.J. at 359 (quoting Weston v. State, 60 N.J. 36, 51 (1972)).
We do not make new factual findings, but merely "decide whether there was adequate evidence before the . . . [c]ourt to justify its finding of guilt." Phillips, supra, 117 N.J. at 579. "[U]nless the appellate tribunal finds that the decision below was 'arbitrary, capricious[,] unreasonable[,]' or '[u]nsupported by substantial credible evidence in the record as a whole,' the de novo findings should not be disturbed." Ibid.
On the other hand, we do not defer to the trial court's legal conclusions. Cosme, supra, 304 N.J. Super. at 203 (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)). Like the Law Division, we will reverse any penalty disproportionate enough to "shock[] one's sense of fairness." Carter, supra, 191 N.J. at 484 (quoting In re Polk License Revocation, 90 N.J. 550, 578 (1982)).
V.
Palladino contends that termination violated the doctrine of progressive discipline. He also asserts that since none of the charges involved the public, the penalty was disproportionate to the offenses.
Progressive discipline's goal is "to promote proportionality and uniformity in the rendering of discipline of public employees." In re Stallworth, 208 N.J. 182, 195 (2011). The doctrine is used both "(1) to 'ratchet-up' or 'support imposition of a more severe penalty for a public employee who engages in habitual misconduct'; and (2) 'to mitigate the penalty' for an employee who has a record largely unblemished by significant disciplinary infractions." Id. at 196 (quoting In re Herrmann, supra, 192 N.J. at 30-33). Though a single infraction "may not itself be sufficient for dismissal, 'numerous occurrences over a reasonably short space of time, even though sporadic, may evidence an attitude of indifference amounting to a neglect of duty' and, thus, constitute sufficient grounds for termination." Id. at 195-96 (quoting West New York v. Bock, 38 N.J. 500, 522 (1962)).
The doctrine is one of flexibility, "'not a fixed and immutable rule to be followed without question[,]' because 'some disciplinary infractions are so serious that removal is appropriate notwithstanding a largely unblemished prior record.'" Id. at 196 (quoting Carter, supra, 191 N.J. at 484). For this reason, "progressive discipline is not necessary 'when the misconduct is severe, when it is unbecoming to the employee's position or renders the employee unsuitable for continuation in the position, or when application of the principle would be contrary to the public interest.'" Id. at 197 (quoting Herrmann, supra, 192 N.J. at 33).
As a threshold matter, Palladino asserts that since neither the hearing officer nor the judge mentioned any prior disciplinary history in their decisions, he cannot now be considered as having anything other than an unblemished prior record. We see no merit to this argument.
The record includes the psychiatric report admitted into evidence that notes that Palladino was suspended in 2006 and 2008. Additionally, Knoll testified that the 2008 suspension was for seventy-five days and that Palladino acknowledged the seventy-five-day suspension.
Even if the hearing officer erred in his characterization of Palladino's prior record, and the Law Division judge was silent on the subject, Waterford is not precluded from relying upon it. The history was established during the hearing. Nor are we precluded from taking Palladino's disciplinary record into consideration in addressing the matter. See N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278 (2007) (emphasis added) (citing R. 2:5-4) (An appellate court's role is to determine "whether the trial court's decision is supported by the record as it existed at the time of trial.").
Were we to exclude Palladino's disciplinary history from consideration, however, we would nonetheless conclude this is not a case for progressive discipline. This police officer's misconduct was "so serious that removal [was] appropriate" regardless of the lack of any prior record. See Stallworth, supra, 208 N.J. at 196.
It is well-established that police officers are held to a very high standard of conduct. See In re Carter, supra, 191 N.J. at 486; Phillips, supra, 117 N.J. at 577. Given that Palladino misrepresented his hours on his time sheets on several days, subsequently lied about it, failed to disclose his use of medication, tape recorded his fellow officers contrary to policy, and was insubordinate, the decision to terminate him is unobjectionable. These offenses raise grave concerns regarding his honesty, and his ability to comply with the rules and regulations of his department. Alone, they are serious enough to warrant termination. See Stallworth, supra, 208 N.J. at 196. Whether his prior disciplinary history is taken into account or not, the penalty does not shock our "sense of fairness." Carter, supra, 191 N.J. at 484.
VI.
The Law Division judge affirmed the hearing officer's findings on charge S-10, concluding that Palladino violated the Waterford Township Police Department Rules and Regulations (WTPDR&R) 12:34(N) and 11:10(C). Those sections provide:
[Conduct unbecoming an officer includes] [c]onduct, either while on or off duty, [that is] detrimental to the service.
[WTPDR&R, section 12:34(N).]
Insubordination: Members or employees shall not commit acts of insubordination. The following specific acts are prohibited by this section: Disobedience of policies established by the Chief of Police and/or the Appropriate Authority.In particular, the judge found that Palladino violated the Department's May 2008 policy banning surreptitious audio-recording of fellow officers and had committed conduct detrimental to the service contrary to WTPDR&R 12:34(N).
[WTPDR&R, section 11:10(C).]
A.
Palladino argues that the Department's recording policy violates his freedom of speech under both the First Amendment and Article I, Paragraph 6 of the New Jersey Constitution. Though he offers no analysis as to the proper standard of review, he maintains that the policy fails strict scrutiny since Waterford cannot demonstrate that his recording activity disrupted the Department's operations.
Palladino also argues that his recording activity is entitled to protection because it violated no criminal laws. This, however, is irrelevant to both the disciplinary charge at issue and any constitutional analysis.
We turn to Palladino's constitutional arguments. Our federal and state constitutions' free speech guarantees are coextensive. Hamilton Amusement Ctr. v. Verniero, 156 N.J. 254, 264 (1998) (citations omitted) (internal quotation marks omitted) ("Because we ordinarily interpret our State Constitution's free speech clause to be no more restrictive than the federal free speech clause, '[w]e rely on federal constitutional principles in interpreting the free speech clause of the New Jersey Constitution.'"), cert. denied, 527 U.S. 1021, 119 S. Ct. 2365, 144 L. Ed. 2d 770 (1999). Palladino, however, does not identify any message he intended to convey or his intended audience as a result of the taping of his fellow officers.
Certainly, the First Amendment protects public employees who speak as citizens on matters of public concern. Garcetti v. Ceballos, 547 U.S. 410, 417, 126 S. Ct. 1951, 1957, 164 L. Ed. 2d 689, 698 (2006). "A police officer . . . cannot always act and speak as he pleases[,] . . . [but h]e maintains the freedom to speak out on matters of public concern, where such speech outweighs the police department's interests in satisfying the public's expectations." Glass v. Dachel, 2 F.3d 733, 740 (7th Cir. 1993). And the First Amendment encompasses audio recordings. Am. Civil Liberties Union v. Alvarez, 679 F.3d 583, 597 (7th Cir.) ("Audio recording is entitled to First Amendment protection."), cert. denied, ___ U.S. ___, 133 S. Ct. 651, 184 L. Ed. 2d 459 (2012).
The United States Supreme Court has held that "statements by public officials on matters of public concern must be accorded First Amendment protection despite the fact that the statements are directed at their nominal superiors." Pickering v. Bd. of Educ., 391 U.S. 563, 574, 88 S. Ct. 1731, 1737, 20 L. Ed. 2d 811, 820 (1968). In a formulation that would come to be known as the "Pickering balancing test," the Court framed its goal as reaching "a balance between the interests of the [public official], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees." Id. at 568, 88 S. Ct. at 1734-35, 20 L. Ed. 2d at 817. Accord United States v. Nat'l Treasury Emps. Union, 513 U.S. 454, 465-66, 115 S. Ct. 1003, 1012, 130 L. Ed. 2d 964, 979 (1995) ("NTEU").
The Pickering balancing test only protects a public official's speech when he or she speaks "'as a citizen upon matters of public concern[,]' rather than 'as an employee upon matters only of personal interest.'" Id. at 466, 115 S. Ct. at 1013, 130 L. Ed. 2d at 979 (quoting Connick v. Myers, 461 U.S. 138, 147, 103 S. Ct. at 1684, 1690, 75 L. Ed. 2d 708, 720 (1983)). "If . . . the speech . . . involve[s] a matter of public concern, the government bears the burden of justifying its adverse employment action." Ibid.
In Glass, the Seventh Circuit applied the Pickering balancing test to a situation where the plaintiff sheriff's deputy expressed criticisms of the sheriff's department. Supra, 2 F.3d at 736. After learning of the plaintiff's criticisms, the sheriff issued the plaintiff a private letter of reprimand. Ibid. The plaintiff had been granted summary judgment on the basis that his First Amendment rights were abridged by the private reprimand. Ibid. The sheriff appealed, arguing that the department's interest in "efficient and effective operation" outweighed the plaintiff's interest in expressing the criticism, and warranted reversal and remand for further proceedings. Id. at 745-46.
The court employed a detailed formulation of the Pickering balancing test, evaluating the State's interest as follows:
(1) the need to maintain discipline or harmony among co-workers;
(2) the need for confidentiality;
(3) the need to curtail conduct which impedes the employee's proper and competent performance of his daily duties; and
(4) the need to encourage a close and personal relationship between the
employee and his superiors, where the relationship calls for loyalty and confidence.In considering these factors, the court asked "whether the statement impairs discipline by superiors or harmony among coworkers, has a detrimental impact on close working relationships for which personal loyalty and confidence are necessary, or impedes the performance of the speaker's duties or interferes with the regular operation of the enterprise." Ibid. (quoting Rankin v. McPherson, 483 U.S. 378, 388, 107 S. Ct. 2891, 2899, 97 L. Ed. 2d 315, 327 (1987)).
[Glass, supra, 2 F.3d at 742.]
These elements take on particular importance in the law-enforcement context: "Mutual trust and respect among agents and between agents and supervisory personnel are particularly important in law enforcement. The need for confidentiality cannot be gainsaid. And given the high stakes involved — sometimes life and death decisions are made — the risks of disharmony can be grave." Id. at 743 (quoting Egger v. Phillips, 710 F.2d 292, 319 (7th Cir.), cert. denied, 464 U.S. 918, 104 S. Ct. 284, 78 L. Ed. 2d 262 (1983)). Since the sheriff's department's interests were so strong, the Seventh Circuit reversed the trial court's grant of summary judgment in favor of the plaintiff deputy. Id. at 746.
More recently, in Baumann v. District of Columbia, a federal trial court sustained a police department's communications ban under the Pickering balancing test. 987 F. Supp. 2d 68, 81-82 (D.D.C. 2013), aff'd, 795 F.3d 209 (2015). The plaintiff police officer had been disciplined for releasing to the media, without prior authorization, an audio recording of police channel communications during a barricade situation. Id. at 72. He had received the recording as part of an internal investigation. Ibid.
First the court held that releasing the recording to the media constituted expressive conduct under the First Amendment. Id. at 75. Beginning its Pickering analysis, the court found that the plaintiff was "serving in his capacity as a full-time union leader" when he disclosed the recording, and was thus speaking as a citizen rather than as an employee. Id. at 76. Since the recording "revealed security risks to the public and . . . officers due to the [department]'s handling of barricade situations," the plaintiff was speaking on a matter of clear public concern. Ibid. Noting the plaintiff's "special knowledge" of departmental policy, the court found that the plaintiff and the public both had "strong interests" in his ability to speak on the subject. Id. at 77.
The departmental order at issue prohibited the public release of "information that may jeopardize the successful conclusion of an investigation," and of departmental documents not "listed as releasable." Ibid. Despite these restrictions, the court noted that the order imposed only a "limited burden on the [p]laintiff's First Amendment interests," since it did not prevent him from offering his "personal views" on the department's policy in general or its handling of the barricade situation in particular. Id. at 77-78. The speech's origin also weighed in the department's favor, since "it [was] speech that only exist[ed] because of [the plaintiff's] employment." Id. at 79.
Countering the plaintiff's interest in speaking out on departmental policy, the Department asserted its interest in "efficient and effective law enforcement" and in "maintaining discipline, security, and confidentiality, and esprit de corps among its officers." Ibid. Though the court accorded "substantial weight to the [department]'s proclaimed interest in promoting agency effectiveness," it required the department to demonstrate "actual harm" to justify its speech restriction. Id. at 79-80. Noting that the recording's release disrupted the department's "ability to effectively handle [the related] investigations," the court concluded that the order was "narrowly tailored to actually protect the [department]'s efficiency and confidentiality interests," since the provisions in question applied only during active investigations and only to non-public documents. Id. at 80-81. "[B]y restricting only confidential and protected information," those provisions "restrict[ed] no more speech than [was] reasonably necessary to achieve the government's interests." Id. at 81 (quoting Weaver v. United States Info. Agency, 87 F.3d 1429, 1443 (D.C. 1996), cert. denied, 520 U.S. 1251, 117 S. Ct. 2407, 138 L. Ed. 2d 174 (1997)). The order thus passed constitutional muster under the Pickering balancing test. Ibid.
Though Palladino quotes at length from Dill v. City of Edmond, 155 F.3d 1193 (10th Cir. 1998), a Tenth Circuit case applying the Pickering balancing test, he does not suggest how the test should be applied to the present facts. Palladino also fails to specify either his interest or the public's interest in the dissemination of his surreptitious recordings, though he does cite cases holding that speech on matters of police protection and public safety implicate the public's interest.
To merit First Amendment protection, Palladino must have been speaking "as a citizen upon matters of public concern," not simply "as an employee upon matters only of personal interest." NTEU, supra, 513 U.S. at 466 (quoting Connick, supra, 461 U.S. at 147, 103 S. Ct. at 1691, 75 L. Ed. 2d at 708).
One of the primary contentions in Palladino's CEPA complaint is that the Department failed to staff enough officers to adequately patrol the township. This allegation theoretically concerns "security risks to the public" and thus implicates the public's interest. See Baumann, supra, 987 F. Supp. 2d at 76. The record does not reveal the contents of Palladino's recordings, but they presumably could relate to the Department's staffing practices and thus concern the public. As was the case in Baumann, Palladino's "special knowledge" of departmental policy and procedure might also raise a strong public interest in his ability to speak. Id. at 77.
Though the Department does not expressly articulate its interest in preventing Palladino's recording activity, as a law-enforcement organization it is likely aligned with those of the law enforcement organizations discussed in Glass and Baumann. Those organizations argued that their interests included considerations of confidentiality, loyalty, morale, cohesion, discipline, and operational efficiency. Glass, supra, 2 F.3d at 742; Baumann, supra, 987 F. Supp. 2d at 79. These are particularly vital in the law-enforcement context. Glass, supra, 2 F.3d at 743. Furthermore, Palladino's speech activity, like that in Baumann, "is speech that only exists because of [his] employment," strengthening the Department's interest. Baumann, supra, 987 F. Supp. 2d at 79.
The Baumann court required the police department to demonstrate "actual harm" in order to justify its speech restriction. Ibid. In the present case, such harm is readily apparent.
Surreptitious audio-recording among officers is inimical to the values of confidentiality and loyalty: one cannot speak freely to fellow officers when every word might be secretly recorded. As confidentiality and loyalty among officers degrade, morale and unit cohesion must suffer, leading ultimately to disruptions in discipline and operational efficiency. It is well-established that "because of the special degree of trust and discipline required in a police force there may be a stronger governmental interest in regulating the speech of police officers than in regulating the speech of other governmental employees." Id. at 80 (quoting O'Donnell v. Barry, 148 F.3d 1126, 1135 (1998)). Thus the Department's interests are advanced by the audio-recording ban to the extent any violation could threaten harmony among co-workers, and a loyal close relationship between officers and their superiors. Glass, supra, 2 F.3d at 742.
The Pickering test ultimately seeks "a balance between the interests of the [public official], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees." Pickering, supra, 391 U.S. at 568, 88 S. Ct. at 1734-35, 20 L. Ed. 2d at 817. Certainly there is a public interest in Palladino speaking out on matters of departmental policy affecting public safety. On the other hand, the audio-recording regulation implicates a number of the Department's interests, some of which go to the core of its institutional mission. Those interests outweighed any interest advanced in Palladino speaking out on public issues, which could have been accomplished by other means.
When dealing with regulations such as the audio-recording ban in this case, we must evaluate whether its "breadth . . . is reasonably necessary to protect the efficiency of the public service." NTEU, supra, 513 U.S. at 474, 115 S. Ct. at 1017, 130 L. Ed. 2d at 984. This regulation, like that in Baumann, did not prevent Palladino from otherwise expressing his views on departmental policy. See Baumann, supra, 987 F. Supp. 2d at 77-78, 81-82. Palladino could also have obtained the information through normal discovery channels in his CEPA action, rather than by violating the Department's regulations. See State v. Saavedra, 222 N.J. 39, 69-71 (2015).
We simply do not know how Palladino's recordings constituted speech affecting the public interest, as opposed to activity that advanced his private interest. Therefore, the Department's strong interests in confidentiality, loyalty, morale, cohesion, discipline, and operational efficiency outweigh other considerations. The Department's audio-recording regulation leaves open alternative modes of speech while "restrict[ing] no more speech than . . . reasonably necessary to achieve the government's interests," the regulation is valid under the First Amendment. See Baumann, supra, 987 F. Supp. 2d at 81 (quoting Weaver, supra, 87 F.3d at 1443). The resulting charge should therefore be affirmed.
B.
Palladino alleged in his CEPA complaint that he "repetitively questioned his immediate and higher level supervisors" about departmental "policies and practices" which violated statutes and local regulations, including the Department's "intentional failure . . . to staff the minimum number of patrol officers historically required and specifically mandated by department practice and policy[] to patrol the Township of Waterford and effect the minimum standard of police service to its citizens." He further alleged that the Department retaliated against him for this conduct by sabotaging his performance and advancement prospects.
On appeal, Palladino argues that he reasonably believed that he needed to audio-record colleagues and superiors to collect evidence to support his CEPA claim, and that therefore the disciplinary charge resulting from his conduct violates CEPA's public policy. CEPA explicitly prohibits retaliation for an employee's disclosures of conduct he believes to be a violation of a law or public policy. N.J.S.A. 34:19-3.
CEPA is remedial legislation furthering the significant societal goal of encouraging and protecting employees who report illegal or unethical workplace activities. Dzwonar v. McDevitt, 177 N.J. 451, 461 (2003). In this case, however, Palladino has not identified any law, regulation, or public policy that the Department allegedly violated. He does not explain how his surreptitious tape recording activity was connected to his CEPA claim.
CEPA's guarantees do not entitle employees to break the law. Saavedra, supra, 222 N.J. at 74. In Saavedra, the defendant took documents from her employer to support her discrimination lawsuit. Our Supreme Court found that despite the importance of employees being able to pursue discrimination claims, they were not immunized from prosecution for surreptitiously taking confidential documents to support their claims. Ibid. The principle is the same here. CEPA's protection does not shield Palladino from the consequences of violating the Department's regulations, particularly when he does not explain how those recordings had an impact on his lawsuit.
Accordingly, we agree that the charges of improperly tape-recording in violation of departmental policies should have been sustained. They violated neither the federal or state constitutions, nor CEPA.
VII.
Contrary to Palladino's claim, CEPA does not protect him from the consequences of his failure to comply with the order that he file a report regarding the note allegedly left in his departmental mailbox which stated "no good rat." The charge alleged violation of the following policies and regulations:
Insubordination [includes] [r]efusal to obey proper orders from higher authority; neglect or disobedience of any order or failure to comply with departmental rules and regulations[; and] [u]sing profane or insulting language to a superior officer or to higher elected or appointed authority.
[WTPDR&R, sections 12:36(A), (B).]
Insubordination: Members or employees shall not commit acts of insubordination. The
following specific acts are prohibited by this section: . . . Any disrespectful, mutinous, insolent, or abusive language or action toward a superior officer.
[WTPDR&R, section 11:10(B).]
Duty Responsibilities: Members of the Department are always subject to duty although periodically relieved of its routine performance. They shall, at all times, respond to the lawful orders of superior officers . . . .
[WTPDR&R, section 11:6.]
Department Investigations — Testifying[:] Members or employees are required to answer questions by or render material and relevant statements to a competent authority in a department personnel investigation when so directed. Failure to comply with this order, when no jeopardy for criminal prosecution exists, is grounds for immediate dismissal.
[WTPDR&R, section 11:160.]
Insubordination is a particularly serious offense: "disrespect for superiors . . . subverts the good order and discipline that is essential to a properly run police department. Such acts constitute conduct so unbecoming a police officer as to warrant dismissal." Cosme, supra, 304 N.J. Super. at 205-06.
Nothing in CEPA justified Palladino's violation of departmental regulations or lack of compliance with the lawful order prohibiting audio recording. See Saavedra, supra, 222 N.J. at 74. Even if Palladino were correct that the order was unnecessary, he was required to obey. We do not consider the point to require further discussion in a written opinion. R. 2:11-3(e)(1)(E).
VIII.
Palladino also challenges the Law Division judge's conclusion that he failed to disclose, as required by departmental regulations, his use of prescription medication. Waterford Employee Policy Manual § 2.9(4) states that:
Any employee who must use prescribed drugs or narcotics during work must report this fact to his/her supervisor along with acceptable medical documentation, if such use could impair their performance. The determination should indicate if the physician believes the effects of the drug will pose a potential safety risk in light of the nature of the employee's work assignment.Palladino argues that by responding truthfully to interrogatories in his CEPA lawsuit, he substantially complied with the requirement in the Waterford Employee Policy Manual.
When applying the doctrine of substantial compliance, our courts consider several factors, including lack of prejudice. See Galik v. Clara Maass Med. Ctr., 167 N.J. 341, 353 (2001). In this case, it cannot be said that Palladino's untimely disclosure to the Department of his use of the medication was not prejudicial. His use began long before the disclosure, and the disclosure was made in an entirely different context.
There was no assurance that the attorney representing Waterford in the CEPA action would have even conveyed his use of prescription medication to Knoll, or some other officer acting in a supervisory capacity over Palladino. We consider this argument also to be so lacking in merit as to not warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E).
IX.
Palladino contends the Law Division judge erred in concluding that he violated WTPDR&R 11:161, which provides:
Truthfulness[:] Members and employees are required to be truthful at all times whether under oath or not. False statements, whether verbal or written, and/or false entries on any police report or document are grounds for immediate dismissal.
[WTPDR&R, section 11:161.]
Our Supreme Court has said: "[A] police officer is a special kind of public employee. His primary duty is to enforce and uphold the law. . . . He represents law and order to the citizenry and must present an image of personal integrity and dependability in order to have the respect of the public." Carter, supra, 191 N.J. at 486 (alteration in original) (quoting Twp. of Moorestown v. Armstrong, 89 N.J. Super. 560, 566 (App. Div. 1965), certif. denied, 47 N.J. 80 (1966)). This high standard of conduct "is one of the obligations [a police officer] undertakes upon voluntary entry into the public service." Phillips, supra, 117 N.J. at 577 (quoting In re Emmons, 63 N.J. Super. 136, 142 (App. Div. 1960)). For these reasons, an officer's dishonesty in an internal affairs investigation "is significant." Ruroede, supra, 214 N.J. at 362-63.
Palladino's brief highlights the Law Division judge's use of a number of admissions he made, contending that the judge's reliance on some portions of his interview statement as admissions means the judge should not have concluded he was also untruthful. Obviously, however, an interview can contain both truths and untruths.
The judge specifically found the hearing officer sustained the untruthfulness charge based on Palladino's statements regarding time spent on the range. He repeatedly made statements in conflict with the time stamped video recordings of his departures from the range. Palladino's effort at retreating from these statements, calling them merely estimations or failures of recollection, belie the times during the course of the interview in which he made flat assertions plainly contradicted by the evidence. This argument does not warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E).
X.
The Law Division judge found that Palladino's failure to be truthful violated the following sections of the Waterford Rules and Regulations:
[Conduct unbecoming an officer includes] [c]onduct, either while on or off duty, detrimental to the service.
[WTPDR&R, section 12:34(N).]
Truthfulness[:] Members and employees are required to be truthful at all times whether under oath or not. False statements, whether verbal or written, and/or false entries on any police report or document are grounds for immediate dismissal.
[WTPDR&R, section 11:161.]
Repeated Violations[:] Repeated violations of Department rules and regulations, or any other course of conduct indicating that an employee has little or no regard for the obligations of members of the . . . Department, shall be cause for dismissal. This shall apply regardless of the severity of the offenses, regardless of whether or not these violations are of the same type.
[WTPDR&R, section 12:23.]
N.J.S.A. 40A:14-147 also provides that an officer may not be removed for a cause other than "incapacity, misconduct, or disobedience of rules and regulations established for the government of the police department and force[.]"
Palladino asserts that charges S-1 through S-7 must be dismissed because they were filed beyond the forty-five-day limit found in N.J.S.A. 40A:14-147. The statute states:
[a] complaint charging a violation of the internal rules and regulations established for the conduct of a law enforcement unit shall be filed no later than the [forty-fif]th day after the date on which the person filing the complaint obtained sufficient information to file the matter upon which the complaint is based. The [forty-five]-day time limit shall not apply if an investigation of a law enforcement officer for a violation of the internal rules or regulations of the law enforcement unit is included directly or indirectly within a concurrent investigation of that officer for a violation of the criminal laws of this State. The [forty-five]-day limit shall begin on the day after the disposition of the criminal investigation.The forty-five-day rule only applies to violations of a department's internal rules and regulations. It does not apply to discipline based on misconduct. McElwee v. Borough of Fieldsboro, 400 N.J. Super. 388, 394 (App. Div. 2008).
Palladino's falsified time sheets were timely sent to the prosecutor's office for a criminal investigation. The records were not returned to the Department until March 2009. It is undisputed that due to illness and other scheduling difficulties, Palladino was not interviewed regarding these offenses until August 20, 2009. When that meeting finally took place, it was Cormaney's first opportunity to obtain Palladino's version of events.
Up until the prosecutor's office declined to prosecute, the internal affairs investigation could not be completed. The Department could not interfere with a pending criminal investigation. Due to scheduling difficulties, Palladino's interview was not conducted until August 20. Waterford only "obtained sufficient information to file the matter" upon completion of Palladino's interview. The charges were subsequently filed within forty-five days of the interview, on September 22, 2009. Therefore, the forty-five-day rule was not violated and charges S-1 through S-7 can be sustained.
XI.
Finally, we consider Palladino's argument that by breaking down the events by date in S-1 through S-7, Waterford improperly and prejudicially "fractionalized" the charges to Palladino's detriment. That point does not warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION