In Re Carter

924 A.2d 525, 191 N.J. 474
CourtSupreme Court of New Jersey
DecidedJune 20, 2007
StatusPublished
Cited by389 cases

This text of 924 A.2d 525 (In Re Carter) is published on Counsel Stack Legal Research, covering Supreme Court of New Jersey primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Carter, 924 A.2d 525, 191 N.J. 474 (N.J. 2007).

Opinion

924 A.2d 525 (2007)
191 N.J. 474

In the Matter of John CARTER.
John Carter, Petitioner-Respondent,
v.
Township of Bordentown, Respondent-Appellant.

Supreme Court of New Jersey.

Argued January 17, 2007.
Decided June 20, 2007.

*526 Gregory J. Sullivan, Hamilton, argued the cause for appellant (Hartsough Kenny Chase & Sullivan, attorneys).

Mark W. Catanzaro, Moorestown, argued the cause for respondent (Mr. Catanzaro, attorney; Mr. Catanzaro and Ashley H. Auerbach, on the briefs).

Todd A. Wigder, Deputy Attorney General, submitted a letter in lieu of brief on behalf of respondent Merit System Board (Stuart Rabner, Attorney General of New Jersey, attorney).

Justice HOENS delivered the opinion of the Court.

Bordentown Police Officer John Carter was served with a series of disciplinary notices charging him with, among other things, sleeping on duty. Although the Merit System Board upheld the penalty of termination for that offense, the Appellate Division reversed, concluding that imposition of that sanction violated the principle of progressive discipline. We granted the Township of Bordentown's petition for certification, 188 N.J. 217, 902 A.2d 1234 (2006), and we now reverse and reinstate the penalty imposed by the Board.

*527 I.

Carter has been a police officer in Bordentown since 1991. Because of serious symptoms of an illness that first became manifest in 1998, he was out of work for a significant period of time in 1999. Early in 2000, Carter's illness was diagnosed, and he underwent treatment, following which he returned to his job in full active status. Thereafter, he continued to experience some symptoms related to his illness, but he did not request medical leave or other accommodations as a result.

Beginning in September 2000, the Bordentown Chief of Police issued a series of Preliminary Notices of Disciplinary Action that related to four separate incidents involving Carter. Each of those Notices advised Carter of the essential facts giving rise to the charges and identified the sections that he had violated as found in the New Jersey Administrative Code (N.J.A.C.), the Bordentown Township Police Department regulations (BTPD), and the Police Department's Standard Operating Procedures (SOP). Although only the sleeping on duty charge remains in issue, a brief summary of the events involved in the other charges is necessary to appreciate the context in which that charge arose.

A.

The September 26, 2000 Notice charged Carter with failure to perform duties, N.J.A.C. 4A:2-2.3(a)(1), being absent without leave (AWOL), BTPD 3:2.3, neglect of duty, N.J.A.C. 4A:2-2.3(a)(7), and unauthorized absence, BTPD 4:9.4(b), (c), and (e). These charges were all based on an incident in August 2000 when Carter failed to request a vacation week in a timely manner, was advised that his belated request could not be accommodated, and nevertheless went on vacation. He did so by providing his supervisor with a doctor's note suggesting that he needed medical treatment on the days he had requested for vacation after that request had been turned down. Carter then went to Disney World, during which time his supervisor discovered that the doctor's note related to dates prior to his earlier return to active status and thus was out-dated.

On March 2, 2001, Carter was served with two separate Notices, both of which related to incidents involving absences and the use of sick time. In particular, the first of the March Notices charged Carter with abuse of sick time and excessive absenteeism, N.J.A.C. 4A:2-2.3(a)(4), neglect of duty, N.J.A.C. 4A:2-2.3(a)(7), unauthorized absence, BTPD 4:9.4(a), (c), (e), and violating SOP 98-070. The charges in that notice were based on Carter's use of ninety-seven sick days in a two-year period, as well as an incident, in December 2000. In the December incident, Carter called out sick but then went to a hockey game. As a result, he was not at his home, which was the applicable authorized place of confinement, when his supervisor arrived to verify his illness. The second of the March 2001 Notices charged Carter with abuse of sick time, N.J.A.C. 4A:2-2.3(a)(4), neglect of duty, N.J.A.C. 4A:2-2.3(a)(7), unauthorized absence, BTPD 4:9.4(a), (c), (e), and violation of SOP 98-070. Those charges all related to an incident in January 2001 in which Carter called out sick to attend a sporting event. As with the December 2000 incident that gave rise to the other March 2001 Notice, Carter was not at home, his authorized place of confinement, when his supervisor attempted to find him.

The fourth Notice, dated November 7, 2001, is the focus of this appeal. In that Notice, Carter was charged with incompetency, inefficiency, and failure to perform duties, N.J.A.C. 4A:2-2.3(a)(1), conduct unbecoming a public employee, N.J.A.C. 4A:2-2.3(a)(6), neglect of duty, N.J.A.C. 4A:2-2.3(a)(7), sleeping on duty, BTPD *528 3:2.1(a), failure to check in on radio, BTPD 2:6.11, and failure to adhere to general responsibilities of a police officer, BTPD 3:1.5(a)-(e). Each of the charges arose from a series of incidents discovered during a June 2001 investigation of allegations that Carter was sleeping on duty.

Information that Carter might be sleeping on duty first came to the attention of the Bordentown Township Chief of Police in July 2000. At that time, a citizen complained that he twice in one night called the police for assistance, each time thinking that he had awakened the dispatcher. The citizen complained that the police were not sent in response to the first call to the dispatcher and that they were not sent in a timely manner after his second call. The police chief retrieved the recording of the citizen's call and determined that Carter was the dispatcher on duty both times. After hearing the recording, the chief agreed that each time it sounded as if Carter had in fact been awakened by the telephone calls. The chief issued a written warning to Carter in August 2000, stating that sleeping on duty was not authorized and if Carter were to be found sleeping on duty, he would be served with major disciplinary charges. See N.J.A.C. 4A:2-2.2(a).

On June 7, 2001, Lieutenant Frank Nucera, who was the supervisor of the Internal Affairs Bureau, notified the police chief that other officers had alleged that Carter was sleeping on the job. The chief then authorized Nucera to investigate the allegations. Nucera secured the assistance of two police detectives and a sergeant to help with the investigation. On three successive dates in June, when Carter was working the midnight shift, these officers conducted the investigation into the sleeping on duty allegations.

During their investigation, the four officers saw Carter's patrol car parked on the side of Route 130 with its headlights off. The officers reported that they made several "drive-bys" at high rates of speed to which Carter did not react. They also documented that Carter failed to respond promptly to a call for assistance from another officer regarding a disturbance at a local restaurant. In addition, each night, the investigating officers, using night vision binoculars, observed Carter asleep in the front seat of his parked police car for various periods of time, including one in excess of two hours, and totaling more than five hours.

On September 5, 2001, two detectives interviewed Carter about the sleeping on duty allegations. When confronted, Carter conceded that he might have dozed off from time to time.

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Bluebook (online)
924 A.2d 525, 191 N.J. 474, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-carter-nj-2007.