In the Matter of John Dadura, Etc.

• Court: New Jersey Superior Court Appellate Division
• Decided: February 21, 2025
• Docket: A-0173-23
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0173-23

IN THE MATTER OF JOHN DADURA, WILDWOOD CITY, DEPARTMENT OF PUBLIC SAFETY AND PUBLIC AFFAIRS. ______________________________

Submitted February 10, 2025 – Decided February 21, 2025

Before Judges Smith and Vanek.

On appeal from the New Jersey Civil Service Commission, Docket Nos. 2022-1148 and 2022-1150.

The Vigilante Law Firm, PC, attorneys for appellant John Dadura (Jacqueline M. Vigilante, of counsel; Christopher J. Ross, on the briefs).

Testa Heck Testa & White, PA, attorneys for respondent City of Wildwood (Justin R. White, on the brief).

Matthew J. Platkin, Attorney General attorney for respondent New Jersey Civil Service Commission (Charles A. Shadle, Deputy Attorney General, on the statement in lieu of brief).

PER CURIAM Appellant, Police Officer John Dadura, appeals from the Civil Service

Commission's (the Commission) final order affirming the sixty-working-day

suspension penalty imposed against him by his employer, the City of

Wildwood, Department of Public Safety and Public Affairs (WPD). We

affirm, substantially for the reasons set forth by the Commission.

I.

The Administrative Law Judge's (ALJ) findings of fact and conclusions

of law, rendered after an Office of Administrative Law hearing, were adopted

in full by the Commission in its final written decision. Neither party disputed

the ALJ's factual findings. 1 We recount the most salient factual findings

informing our decision.

Dadura has been a police officer with the City of Wildwood for over ten

years, attending a police academy prior to his appointment. On March 22,

2021, WPD Chief Robert Regalbuto issued a personnel order assigning Dadura

to the Cape May Police Academy for retraining due to performance issues

related to his handling of an intoxicated female suspect who was disorderly

and resisting arrest.

1 WPD filed exceptions to the ALJ's modification of the working-day suspension penalty from sixty to thirty days. Dadura responded to the WPD's exceptions on that issue. Neither party contested the ALJ's factual findings. A-0173-23 2 On March 28, 2021, the WPD dispatch advised Dadura of a report that a

Hispanic male kicked a soccer ball through a window of a building. Body worn

camera (BWC) footage captured Dadura's initial contact with the suspect. As

he drove in his police vehicle, Dadura shouted "yo bud, get over here" and the

suspect "took off running." BWC footage showed Dadura rolling through

another stop sign. Dadura identified the suspect on the sidewalk again and

attempted to get out of his vehicle, but the suspect continued to evade Dadura,

who continued to follow him in the police vehicle.

While driving, Dadura reached with his right hand to unholster his taser,

switched it to his left hand and held it out his driver's side window. Officers

are instructed to hold the taser straight, as they would a firearm, rather than in

a canted position. BWC footage showed Dadura held the taser horizontally out

of his driver's side window in his left hand as he drove, while yelling at the

suspect, "yo, yo, I don't mind, I'll tase your ass. Stop dude! Don't make me

tase you!" Dadura holstered his taser after eleven seconds and stated, "I'm not

running man. I got all day."

Dadura exited his vehicle as the suspect jumped over a yellow brick wall

and into his yard. Dadura followed through the gate in the wall and yelled,

A-0173-23 3 "you're under arrest, get over here! Turn around. Turn around. Turn around!

. . . . Are you fighting me? Turn around. Give me your f-ing hands . . . ."

After this incident, the Chief signed another personnel order

immediately reassigning Dadura to administrative duty. About sixty days

later, a Performance Improvement Plan (PIP) for Dadura was implemented.

The PIP was required to be followed by both Dadura and the WPD, with

Dadura completing retraining at the police academy under the March 22

personnel order. The PIP also mandated that Dadura complete a FTO 2

program after the academy, along with a taser course.

The PIP detailed the four prior Final Notices of Disciplinary Actions

against Dadura, along with the sixty-working-day suspension at issue. A 2018

incident also involved a taser and, in 2016, Dadura was investigated for having

marijuana in his vehicle that was not the result of an arrest.

The ALJ determined Dadura's actions on March 28, 2021 violated a

variety of WPD rules, along with N.J.A.C. 4A:2-2.3(a)(1), Incompetency,

inefficiency or failure to perform duty; N.J.A.C. 4A:2-2.3(a)(3), Inability to

perform duties; N.J.A.C. 4A:2-2.3(a)(7), Neglect of duty; and N.J.A.C. 4A:2-

2.3(a)(12), Other sufficient cause. The ALJ found Dadura's conduct "also

2 The acronym "FTO" is not defined in the record. A-0173-23 4 constituted a violation of [c]onduct unbecoming a police officer under

common law of the State of New Jersey," and determined the WPD "met its

burden of proof by a preponderance of the credible evidence."

The ALJ sustained the charges and specifications against Dadura but

modified the penalty from a sixty to a thirty-working-day suspension without

pay. The ALJ stated its modification of the WPD's penalty was "based on

theories of progressive discipline since this discipline arose before [Dadura]

could receive the training anticipated . . . ."

On August 7, 2023, the WPD filed exceptions pursuant to N.J.A.C. 1:1-

18.4, contesting the ALJ's penalty reduction, and requesting the Commission

reinstate the sixty-working-day penalty. Dadura did not file any exceptions to

the ALJ decision, responding only to WPD's exceptions, arguing "[t]he [ALJ]

made adequate and reasonable factual determinations based on the record

before it." Dadura posited that:

the ALJ conducted an expansive and thorough review of both the facts underlying the charges and [Dadura]'s disciplinary history. Based on that review, the [ALJ] concluded that a [thirty-day] unpaid suspension is the appropriate penalty under principles of progressive discipline. A thirty-day unpaid suspension is a significant imposition of discipline and represents a major discipline on [Dadura]'s record. Such a penalty is also in accordance with progressive discipline.

A-0173-23 5 The Commission adopted the ALJ's findings of fact and legal

conclusions, modifying only the penalty as follows:

[Dadura]'s misconduct in this matter was troubling, especially given the fact that he has had prior disciplines for similar misconduct regarding the use of a taser, and the potential impact on public safety. While [Dadura]'s prior disciplinary suspensions were of a lesser degree, given the repetitive nature of the misconduct, the [sixty-working-day] suspension in this matter is appropriate and should impress upon [Dadura] the inappropriate nature of his misconduct and serve as a warning that any future misconduct will be met with more severe discipline, up to and including removal from employment. Finally, the [Commission] highly recommends that the appointing authority, if it has not already done so, send [Dadura] to a [taser] training course.

Dadura appealed the Commission's final decision.

II.

A.

Under our limited scope of review, we conclude the Commission's

decision to impose the sixty-working-day penalty was not arbitrary, capricious,

or unreasonable. See Allstars Auto Grp., Inc. v. N.J. Motor Vehicle Comm'n,

234 N.J. 150, 157 (2018) (citing Russo v. Bd. of Trs., Police & Firemen's Ret.

Sys., 206 N.J. 14, 27 (2011)).

A-0173-23 6 We review the Commission's final order to determine whether there has

been "a showing that it was arbitrary, capricious[,] or unreasonable, or that it

lacked fair support in the evidence, or that it violated legislative policies

expressed or implicit in the civil service act." In re Hendrickson, 235 N.J. 145,

160 (2018) (quoting State v. Roth, 95 N.J. 334, 364 (1984)). The judicial role

in reviewing an administrative action is generally limited to three inquiries:

(1) whether the agency's action violates express or implied legislative policies, that is, did the agency follow the law;

(2) whether the record contains substantial evidence to support the findings on which the agency based its action; and

(3) whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors.

[Allstars, 234 N.J. at 157 (quoting In re Stallworth, 208 N.J. 182, 194 (2011)) (citations omitted).]

This well-known standard has engrained within it a degree of deference that

prohibits us from substituting our judgment for the agency's merely because

we might have come to a different outcome. See Hendrickson, 235 N.J. at

150; In re Carroll, 339 N.J. Super. 429, 437 (App. Div. 2001) (quoting In re

Vey, 272 N.J. Super. 199, 205 (App. Div. 1993), aff'd, 135 N.J. 306 (1994))

A-0173-23 7 ("A strong presumption of reasonableness attaches to the actions of the

administrative agencies").

Our deference extends to the agency's choice of disciplinary sanction.

See In re Herrmann, 192 N.J. 19, 28 (2007); Knoble v. Waterfront Comm'n of

N.Y. Harbor, 67 N.J. 427, 431-32 (1975) (reversing our decision because the

agency's penalty was not "unduly severe"). We "alter a sanction imposed by

an administrative agency only 'when necessary to bring the agency's action

into conformity with its delegated authority[,]'" because we lack the "power to

act independently as an administrative tribunal or to substitute its judgment for

that of the agency." Herrmann, 192 N.J. at 28 (quoting In re Polk, 90 N.J. 550,

578 (1982)). In reviewing administrative sanctions or penalties we determine

". . . 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." Herrmann,

192 N.J. at 28-29 (quoting Polk, 90 N.J. at 578).

B.

The Commission has long considered progressive discipline, predicated

on the notion that "past misconduct can be a factor in the determination of the

appropriate penalty for present misconduct." Id. at 29. The Commission has

applied progressive discipline to "support the imposition of a more severe

A-0173-23 8 penalty for a public employee who engages in habitual misconduct" and "to

mitigate the penalty for a current offense." Id. at 30, 32. Progressive

discipline need not "be applied in every disciplinary setting," appropriately

bypassed "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 33.

When progressive discipline is applied, "an employee's past record with

emphasis on the 'reasonably recent past' should be considered." Stallworth,

208 N.J. at 199 (quoting West New York v. Bock, 38 N.J. 500, 524 (1962)).

"This includes consideration of the totality of the employee's work

performance, including all prior infractions." Ibid. (emphasis added). "The

number and remoteness or timing of the offenses and their comparative

seriousness, together with an analysis of the present conduct, must inform the

evaluation of the appropriate penalty." Ibid.

Law enforcement officers are held to a higher standard of conduct than

other individuals because they are "held up as . . . model[s] of proper conduct."

In re Emmons, 63 N.J. Super. 136, 141-42 (App. Div. 1960). They

"represent[] law and order to the citizenry and must present an image of

A-0173-23 9 personal integrity and dependability in order to have the respect of the public."

Moorestown v. Armstrong, 89 N.J. Super. 560, 566 (App. Div. 1965).

C.

Considering the nature of Dadura's misconduct and the proofs before the

Commission, we conclude the Commission's final decision reinstating the

sixty-working-day penalty was not arbitrary, capricious, or unreasonable. The

BWC footage establishes Dadura failed to conform to the high standards of

conduct placed on police officers by violating several WPD procedures

through driving a police vehicle down the street while pointing a taser out the

window at a fleeing suspect and by using foul language unbecoming of an

officer when attempting to arrest the suspect. See Emmons, 63 N.J. Super. at

141-42. The Commission considered "the totality of [Dadura]'s work

performance, including all prior infractions" as set forth in the PIP.

Stallworth, 208 N.J. at 199 (emphasis in original).

Through the required deferential lens, we conclude the sixty-working-

day penalty reinstated by the Commission is not disproportionately unfair in

light of all the circumstances. We affirm, substantially for the reasons set

forth by the Commission.

A-0173-23 10 III.

We are unconvinced Dadura's newly-minted argument that the

Commission erred in adopting the ALJ's factual findings is anything but

invited error, which "'bar[s] a disappointed litigant from arguing on appeal that

an adverse decision below was the product of error, when that party urged the

lower court to adopt the proposition now alleged to be error.'" N.J. Div. of

Youth & Fam. Servs. v. M.C. III, 201 N.J. 328, 340 (2007) (quoting Brett v.

Great Am. Recreation Inc., 144 N.J. 479, 503 (1996)). Dadura not only failed

to contest the ALJ's factual findings but implored the Commission to adopt

them. Having done so, we decline to find the Commission's adoption of the

ALJ's factual findings arbitrary, capricious or unreasonable.

To the extent we have not addressed any of Dadura's remaining

arguments, we conclude they lack sufficient merit to warrant discussion in a

written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

A-0173-23 11