NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-3400-18
POLICE OFFICER MATTHEW LEVINE,
Plaintiff-Appellant,
v.
TOWNSHIP OF PEQUANNOCK and TOWNSHIP OF PEQUANNOCK POLICE DEPARTMENT,
Defendants-Respondents. ____________________________
Argued December 14, 2020 – Decided July 2, 2021
Before Judges Hoffman and Suter.
On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. L-0988-18.
Ashley V. Whitney argued the cause for appellant (Law Offices of Gina Mendola Longarzo, LLC, attorneys; Ashley V. Whitney, on the briefs).
Stephen E. Trimboli argued the cause for respondents (Trimboli & Prusinowski, LLC, attorneys; Stephen E. Trimboli, of counsel and on the brief; John P. Harrington, on the brief).
PER CURIAM
Following an administrative determination of misconduct in this police
disciplinary action, plaintiff Matthew Levine filed this action against
defendants, Township of Pequannock (the Township) and Township of
Pequannock Police Department (the Department), seeking reinstatement to his
position as a police officer with the Department, back pay, and counsel fees.
The Township sought plaintiff's termination after a Department investigation
revealed substantial evidence that plaintiff misused the computer system in his
police car to conduct unjustified searches of the motor vehicle records of
thousands of New Jersey drivers.
Following a disciplinary hearing, a neutral hearing officer found that
plaintiff engaged in "a pattern of official misconduct" and concluded that this
misconduct was "sufficiently egregious . . . to warrant his dismissal ." The
Township adopted this recommendation and terminated plaintiff's employment.
Plaintiff then petitioned for review of his termination in the Law Division,
pursuant to N.J.S.A. 40A:14-150. Following a de novo review of the record
before the hearing officer, the trial court affirmed the disciplinary conviction
and entered a judgment on February 25, 2019, denying plaintiff's application for
A-3400-18 2 reinstatement, dismissing his complaint, and affirming the administrative
decision. This appeal followed. Because the trial court's decision was supported
by substantial credible evidence, we affirm.
I.
We begin with a review of the relevant controlling authority. Because the
Township is a non-civil service jurisdiction, the statutory framework for
disciplinary proceedings against police officers is governed by N.J.S.A. 40A:14-
147 to -151. Ruroede v. Borough of Hasbrouck Heights, 214 N.J. 338 (2013).
That statutory scheme requires the Township to demonstrate "just cause" for any
suspension, termination, fine, or reduction in rank. Id. at 354 (citing N.J.S.A.
40A:14-147). Pursuant to N.J.S.A. 40A:14-147, just cause includes
"misconduct."
Our Supreme Court has recognized "misconduct" under N.J.S.A. 40A:14-
147 "need not be predicated on the violation of any particular department rule
or regulation," but may be based merely upon the "implicit standard of good
behavior which devolves upon one who stands in the public eye as the upholder
of that which is morally and legally correct." In re Phillips, 117 N.J. 567, 576
(1990) (citation omitted). Because "honesty, integrity, and truthfulness [are]
essential traits for a law enforcement officer[,]" the Court has upheld
A-3400-18 3 termination where, for example, an officer made conflicting statements to
internal affairs investigators about an off-duty altercation. Ruroede, 214 N.J. at
362-63; see also State v. Gismondi, 353 N.J. Super. 178, 185 (App. Div. 2002)
("[T]he qualifications required to hold [a law enforcement] position require a
high level of honesty, integrity, sensitivity, and fairness in dealing with members
of the public . . . .").
Pursuant to N.J.S.A. 40A:14-150, an officer is entitled to a hearing, and if
convicted of any charge, he may seek review in the Superior Court. Ruroede,
214 N.J. at 355. As noted, the trial court's review is de novo. Ibid. The trial
court must provide "an independent, neutral, and unbiased" review of the
disciplinary action, and make its own findings of fact. Id. at 357 (citing Phillips,
117 N.J. at 578, 580 (1990)). The court must "make reasonable conclusions
based on a thorough review of the record." Ibid. (quoting Phillips, 117 N.J. at
580). "Although a court conducting a de novo review must give due deference
to the conclusions drawn by the original tribunal regarding credibility, those
initial findings are not controlling." Ibid. (quoting Phillips, 117 N.J. at 579).
Our role in reviewing the de novo proceeding is "limited." Phillips, 117
N.J. at 579. We "must ensure there is 'a residuum of legal and competent
evidence in the record to support'" the court's decision. Ruroede, 214 N.J. at
A-3400-18 4 359 (citation omitted). 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, 117 N.J. at 579 (citation omitted). "[U]nless the appellate
tribunal finds that the decision below was 'arbitrary, capricious[,]
unreasonable[,]' or '[un]supported by substantial credible evidence in the record
as a whole,' the de novo findings should not be disturbed." Ibid. (fourth
alteration in original). On the other hand, we do not defer to the trial court's
legal conclusions. Cosme v. Borough of E. Newark Twp. Comm., 304 N.J.
Super. 191, 203 (1997) (citing Manalapan Realty, L.P. v. Twp. Comm. of
Manalapan, 140 N.J. 366, 378 (1995)).
II.
We derive the following relevant facts and procedural history from the
record.
A. Info-Cop Software
The Department's police cars contain Mobile Data Terminals (MDTs) that
run a software called "Info-Cop." Through Info-Cop, officers can access the
New Jersey Criminal Justice Information System (NJCJIS), a shared computer
database containing records from various agencies, including those maintained
A-3400-18 5 by the New Jersey Motor Vehicle Commission. The Department requires
officers abide by the NJCJIS Security Policy in using the MDTs.
Officers can enter a license plate number into Info-Cop and run either a
"random" or "full disclosure" inquiry. A random plate inquiry only discloses
the vehicle's make, model, color, year, and registration status, whereas a full
disclosure plate inquiry reveals personal information about the vehicle's
registered owner, including his or her name, date of birth, social security
number, address and identifying characteristics such as height, weight, and eye
color.
According to the NJCJIS Security Policy, officers can make random plate
inquiries without articulable suspicion, while full disclosure inquiries are only
permissible if the officer operating the MDT "has articulable cause to stop the
vehicle, or otherwise requires full vehicle and owner personal information
. . . ." Per Department policy, other situations justifying officer access to full
vehicle and owner information include when the vehicle is involved in a
collision, the officer is performing a security check on a business or residence,
or a random inquiry reveals an expired registration.
The NJCJIS Security Policy is consistent with the decision of our Supreme
Court in State v. Donis, 157 N.J. 44 (1998). In that case, the Court directed state
A-3400-18 6 law enforcement agencies to reprogram the MDTs' data displays so that "police
officers who were using MDTs at random and who lacked suspicion could access
only nonprivate information[,]" while those with proper justification could
access "the 'personal information' of the registered owner, including name,
address, social security number, and if available, criminal record." Id. at 55-56.
Consistent with Donis, the NJCJIS Security Policy explicitly states:
ANY PERSON WHO FAILS TO COMPLY WITH THIS INSTRUCTION IS IN VIOLATION OF A NEW JERSEY SUPREME COURT DECISION. VIOLATORS SHALL BE SUBJECT TO THE PENALTIES DEEMED APPROPRIATE PURSUANT TO STANDARDS OF DISCIPLINE SET FORTH BY THEIR RESPECTIVE CRIMINAL JUSTICE AGENCY . . . AND/OR CRIMINAL AND CIVIL LIABILITY.
The Department's vehicles are also equipped with recording equipment
for use during motor vehicle stops. This recording system includes a front
camera mounted under the rearview mirror. This camera is continually
recording, but the officer must engage the recording system in order for the
camera's footage to be included in the saved video associated with the motor
vehicle stop. The recording system engages when the officer activates the
vehicle's lights or manually pushes a record button. When engaged, the
A-3400-18 7 recording associated with the stop automatically includes the footage captured
thirty seconds before the officer engaged the system.
B. Plaintiff's Misuse of Info-Cop Software
After attending Essex County Police Academy, plaintiff was sworn in as
a police officer in October 2008. He then worked as a police officer for the
Palisades Interstate Parkway Police (PIPP) for approximately three and a half
years. Plaintiff was trained on how to utilize NJCJIS while at the academy, and
he testified "[t]here probably was a class" on NJCJIS when he was first hired by
PIPP. On February 1, 2012, the Department hired plaintiff as a police officer.
Plaintiff completed an NJCJIS recertification course on November 7, 2013. He
remained employed with the Department until his termination.
Captain Christopher DePuyt, a superior to plaintiff within the Department,
held the position of Operations Commander and Public Information Officer. "In
the course of [his] responsibilities[,]" Captain DePuyt "review[ed] motor vehicle
stops made by officers" by viewing "the video produced by the in-car cameras
of the officers."
On or about November 22, 2015, while reviewing video footage of a motor
vehicle stop conducted by plaintiff, Captain DePuyt "observed some
A-3400-18 8 discrepancies as far as what was written in a report submitted for review, as
opposed to what was seen on the video." This stop occurred on November 20,
2015, at approximately 12:45 a.m. In his investigation report, plaintiff stated he
observed the subject vehicle drift across lanes from an approximate distance of
ten car lengths. However, according to Captain DePuyt, the video footage of
this stop showed the subject vehicle was not ten car lengths away from plaintiff,
but rather there was a distance of "several hundred yards" between plaintiff's
vehicle and the subject vehicle. Additionally, Captain DePuyt concluded
"[t]here was no way to see any weaving of the vehicle in question . . . ."
Captain DePuyt's detection of these discrepancies caused him to further
scrutinize plaintiff's patrol on November 20. He looked up plaintiff's Info-Cop
license plate inquiries and discovered that plaintiff had conducted only full
disclosure plate inquiries during his shift. Captain DePuyt then checked
plaintiff's plate inquiries for the previous four weeks and found all of plaintiff's
plate searches during that period were full disclosure inquiries; plaintiff had
conducted no random inquiries.
His suspicions raised, Captain DePuyt asked plaintiff to meet with him for
"an informal inquiry" into the discrepancies; on November 22 or 23, 2015, they
met in Captain DePuyt's office. There, Captain DePuyt asked plaintiff if he
A-3400-18 9 understood the difference between random and full disclosure lookups, and
plaintiff explained the distinction accurately. According to Captain DePuyt,
when he asked plaintiff to estimate the percentage of his plate inquiries that were
random versus full disclosure, plaintiff answered, "about [fifty] percent."
Captain DePuyt further recounted that when confronted with the records
indicating he had not performed a single random plate inquiry during the
preceding four weeks, contrary to New Jersey law, NJCJIS policy, and his
training, plaintiff admitted, "I know I was wrong." Regarding his investigation
report's description of the distance between his vehicle and the subject vehicle,
Captain DePuyt reported plaintiff said, "I shouldn't have written that."
On November 23, 2015, Captain DePuyt formally referred his concerns
about plaintiff to the head of the Department's Internal Affairs (IA), Lieutenant
Michael Fairweather, requesting an IA investigation. In full, Captain DePuyt's
referral letter provided:
Please allow this letter to serve as my request for you to investigate [plaintiff]'s use of the full disclosure plate inquiry function of the MDT system. After reviewing four weeks of license plate lookups, I discovered that [plaintiff] had not made one random plate inquiry. All of his lookups were utilizing the full disclosure feature.
This morning I met with [plaintiff][,] who stated he knew the circumstances when the full disclosure
A-3400-18 10 information could be requested. He estimated he used the random plate inquiry function approximately [fifty percent] of the time. I advised that in the aforementioned one[-]month period, he had not made one single random plate inquiry. He offered no explanation and admitted several times that he has been willfully misusing the full disclosure feature and that it was wrong. Please look into this matter at your earliest convenience.
C. IA Investigation
Lieutenant Fairweather's IA investigation of plaintiff commenced on
November 23, 2015, and plaintiff received written and verbal notification of the
investigation on that date. As detailed in Lieutenant Fairweather's investigation
report, he and Captain DePuyt "accessed the Info-Cop System" and found that
from January 1, 2015 to November 23, 2015, plaintiff conducted 5,365 license
plate inquiries, yet only nineteen of those searches utilized the random inquiry
feature. And though he performed 5,616 full disclosure inquiries, plaintiff only
made 705 motor vehicle stops and issued 603 motor vehicle summonses during
this eleven-month period.
Lieutenant Fairweather compared plaintiff's random plate inquiry rate to
four other officers with a similar number of total license plate inquiries and
found that 0.35% of plaintiff's plate searches were random inquiries, while , on
average, 77.57% of the other officers' plate searches were random inquiries.
A-3400-18 11 Further, the percentage of plaintiff's plate inquiries that were random decreased
each year from when he was hired by the Department: "2012- 51.7%, 2013 –
24.0%, 2014 – 1.8%, and 2015 – 0.35%." For each of these four years, random
inquiries made up over seventy-one percent of the Department's total license
plate inquiries.
Based on these figures, in December 2015, Lieutenant Fairweather
requested the Professional Standards Unit of the Mercer County Prosecutor's
Office (MCPO) review plaintiff's case "for any possible criminal violations" as
well as potential racial bias. The IA investigation was suspended in the
meantime. On March 17, 2017, the MCPO found "there was insufficient
evidence to warrant a criminal prosecution,"1 and referred the matter back to the
Department for continuation of its administrative investigation.
Lieutenant Fairweather resumed investigating whether plaintiff violated
the following Department rules and regulations:
1. Rule 3:1.1 - Performance of Duty
All employees shall promptly perform their duties as required or directed by law, rules and regulations, policies and procedures or written directive, or by lawful order of a superior officer.
1 Lieutenant Fairweather's IA report also notes the MCPO investigation revealed plaintiff's "motor vehicle stops appear to be consistent with the demographics of [the] Township and the surround [sic] communities." A-3400-18 12 2. Rule 3:4.3 - Reports
No employee shall knowingly falsify an official report or enter or cause to be entered any inaccurate, false, or improper information on records of the department.
3. Rule 3:7.5 - Work Expectation
Employees are expected to perform their duties to the best of their abilities at all times.
On May 26, 2017, Lieutenant Fairweather interviewed plaintiff, who was
accompanied by his attorney. Before questioning began, plaintiff was advised
of the potential violations of Department rules by him that were under
investigation.
Captain DePuyt also attended the interview. Plaintiff's attorney objected
to his presence, contending the New Jersey Attorney General's internal affairs
guidelines for State law enforcement agencies (AG guidelines) require
investigators be unbiased and objective, yet Captain DePuyt was the
complainant and a fact witness against plaintiff. Captain DePuyt remained
present at the interview and asked plaintiff multiple questions.
According to Lieutenant Fairweather's investigation report, during this
interview, plaintiff explained a random plate inquiry is "utilized to get
information about the vehicle if you do not have the vehicle committing a
A-3400-18 13 violation[,]" while a full disclosure inquiry "would be used when an Officer has
a violation on a vehicle such as speeding, backing up another Officer on a stop
or a motor vehicle accident." When asked about the statistical disparity between
his random inquiries and the rest of the department, plaintiff explained he was
trained "to not just sit on the side of the road and run plates"; rather, he waits
until he sees a motor vehicle violation and then runs a full disclosure inquiry.
Plaintiff claimed he observed motor vehicle violations before all 5,346 of the
full disclosure inquiries he conducted in 2015. When reminded that he only
performed approximately 700 motor vehicle stops and questioned as to why he
did not take enforcement action on the remaining, approximately 4,600, other
vehicles that he observed in violation that led him to utilizing the full disclosure
inquiry, plaintiff stated there were other full disclosure inquires that may have
resulted from him inquiring on other officer's stops, gaining information for
motor vehicle accidents, or conducting plate inquiries during business checks.
Plaintiff could not explain why his percentage of random inquiries declined each
year since 2012 or why his random plate inquiry percentage was markedly lower
than the rest of the Department.
Lieutenant Fairweather questioned plaintiff about the November 20, 2015
motor vehicle stop that sparked the IA investigation. According to Lieutenant
A-3400-18 14 Fairweather's report, plaintiff claimed he hit record on the in-car camera system
after observing the subject vehicle commit a motor vehicle violation, and that
"he does not know why" the violation was not visible on the video recording.
He stated he would not have hit record or pulled over the vehicle if he did not
witness a violation. He also said he recalled the subject vehicle being ten car
lengths ahead of his, "but it could have been [twenty] or [thirty]." Plaintiff
"stated he considers a car length to be [twenty]-[thirty] feet, possibly [forty] feet
. . . ." Plaintiff posited that he did not think he told Captain DePuyt during their
November 2015 meeting that he willfully violated the NJCJIS policy. When
asked by Lieutenant Fairweather during this interview if he believed he violated
the policy, plaintiff "answered no."
Lieutenant Fairweather also questioned plaintiff about a motor vehicle
stop plaintiff conducted on May 15, 2015, which led to the arrest of the driver.2
In plaintiff's investigation report, he stated he pulled the vehicle over after
"perform[ing] a random registration check" that indicated the vehicle's
registration was expired; however, the investigation into plaintiff's license plate
2 Before being questioned about both this motor vehicle stop and the one that occurred on November 20, 2015, plaintiff was afforded the opportunity to review, in private with his attorney, the video footage of and his reports on the motor vehicle stops. A-3400-18 15 inquiries revealed he performed a full disclosure inquiry. It also revealed
plaintiff had performed twenty-three full disclosure inquiries on other license
plates before the subject vehicle on that date. Asked to explain why his
investigation report provided he performed a random inquiry, rather than a full
disclosure inquiry, plaintiff "stated that he did not know but that the vehicle may
have had a violation out of view" or perhaps in another town, which he would
not include in his report. He also stated he possibly was looking at another
officer's report when he wrote that his inquiry was random.
Following his investigation, Lieutenant Fairweather issued a ten-page IA
Report setting forth his findings regarding the allegations against plaintiff.
Lieutenant Fairweather "sustained" and "substantiated" plaintiff's violations of
the three Department rules. On June 1, 2017, the Department's police chief,
Brian C. Spring, advised plaintiff in writing that he was being placed on paid
administrative leave pending review of the IA report and recommended charges.
On July 6, 2017, Captain DePuyt served plaintiff with a Notice of Disciplinary
Action (NDA), suspending plaintiff without pay and recommending plaintiff's
removal. The NDA listed the following charges with accompanying
specifications:
A-3400-18 16 Rule 3:1.1 – Performance of Duty
Did willfully and intentionally engage in ongoing repeated course of improper and unlawful conduct of violating the NJCJIS Policy by conducting full information inquiries on the in-car computer without the required supported justification or factual basis.
Did willfully and intentionally engage in an ongoing, repeated course of improper and unlawful conduct of violating the New Jersey Statutes, and violating the statutory privacy rights of citizens, by conducting full information inquiries on the in-car computer without the required supported justification or factual basis.
Rule 3:4.3 – Knowingly Falsifying Official Reports
Did willfully state false information in reports as specified: May 15, 2015 . . . (Misstatement of conducting a random plate inquiry, when no such inquiry was performed and omitting the probable cause for the traffic stop.)[,] November 20, 2015 . . . (Misstatement of distance and location of suspect vehicle.)
Rule 3:7.5 – Work Expectation; employees are expected to perform their duties to the best of their abilities at all times
Did willfully fail to document proper information in reports as required . . . .
Misconduct as defined in N.J.S.A. 40A:14-147[,] Incapacity as defined in N.J.S.A. 40A:14-147
A-3400-18 17 Did engage in a course of conduct, as more fully described in the foregoing specifications, involving conduct equivalent to the crime of pattern of official misconduct, N.J.S.A. 2C:30-7, involving dishonesty and moral turpitude.
D. Testimonial Hearing
A testimonial hearing was conducted before a Township hearing officer
over the course of three days, October 10, 2017, November 7, 2017, and
February 20, 2018. Lieutenant Fairweather, Captain DePuyt, Chief Spring,
Lieutenant Daniel Comune, and plaintiff testified. Lieutenant Fairweather
testified about the IA investigation of plaintiff. The recording of plaintiff's IA
interview with Lieutenant Fairweather was played in full while Lieutenant
Fairweather was on the stand.
Captain DePuyt recounted his discovery of plaintiff's alleged misconduct,
his November 2015 meeting with plaintiff, and his limited role in assisting
Lieutenant Fairweather's investigation. Captain DePuyt testified that in his
twenty-four years on the force, plaintiff's misuse of the plate inquiry system was
"one of, if not the most serious issues that [he] had to entertain as an
administrator and police officer." He added plaintiff's conduct was "extremely
serious" and he "was shocked by it."
A-3400-18 18 Chief Spring testified as to various Department policies and stated it was
his decision to seek plaintiff's termination. He explained he sought that penalty
because plaintiff's conduct involved "an integrity issue and a public trust
issue[,]" and he "believe[d] that there were some false statements made . . . ."
Thus, plaintiff "would have a tough time participating in arrests or court
testimony" because of his dishonesty, which would present "a very great burden
on the Department to keep that officer . . . ."
Lieutenant Comune was one of plaintiff's supervisors who maintained
personnel files and early warning records. He explained the Department's early
warning system documents potential issues involving officers "to give the
Department early warning that there might be a problem with a particular
officer" and "if we do see an officer having many entries, it can go to an IA
complaint based on that." Lieutenant Comune reviewed and discussed three
incidents involving plaintiff contained in his personnel file: one where plaintiff
forcefully searched a passenger who explicitly denied plaintiff's request for
consent to search, another where plaintiff obtained consent to search an
individual but failed to inform the individual that he could refuse consent, and
one noting that plaintiff "was disciplined for demeanor and his use of foul
language."
A-3400-18 19 Through his testimony, plaintiff attempted to explain his high percentage
of full disclosure inquiries. He testified that he generally does not run random
searches because "[t]he license plate does nothing for me[,]" whereas his
observations of a driver's body language and whether "the vehicle is safe for the
roadway" is more useful. He also argued the total number of full disclosure
inquiries uncovered in the IA investigation was overstated because there were
duplicate lookups, out-of-state plate inquiries, and those conducted with the
requisite cause.
Plaintiff acknowledged he incorrectly wrote he performed a "random"
registration check in his May 15, 2015 investigation report and acknowledged
he previously stated, "that maybe I was referring back to somebody else's
report," but ultimately concluded he had no explanation for why he wrote
"random" instead of "full disclosure." Nevertheless, plaintiff asserted the full
disclosure inquiry was appropriate because he witnessed a traffic violation in
another town beforehand, though he could not remember what violation
occurred. He explained he neglected to note this traffic violation in his report
because supervisors instructed him not "to list anything . . . in your report that
happened out of town[,]" though he also stated that was "not what [he] was
taught" and "it was a mistake."
A-3400-18 20 Regarding the difference between the distance described in his November
20, 2015 investigation report and that depicted on the video of the traffic stop,
plaintiff explained he "didn't review the video prior to writing the report" and
wrote his report based on what he viewed "with [his] eyes." He suggested there
may have been "an issue with the depth perception . . . or as you could see, it
was a dark night" and "all you could see was lights." Plaintiff further claimed
he activated his vehicle's recording system "[s]imultaneously" with his
observation of the motor vehicle violation. Though his superiors stated the
video did not show the subject vehicle drift across the lane, plaintiff argued:
You could see taillights when my vehicle is passing Leslie Pools, you could see the taillights at the left side of the center lane, but can you see tires going over into the left-hand, into the left-hand lane? No. Can you see the vehicle move over a little bit? You can see the lights move over a little bit. I could see it.
On May 7, 2018, the hearing officer rendered a twenty-six-page written
"report of findings and determinations" wherein he determined plaintiff violated
Department Rules 3:1.1 – Performance of Duty and 3:4.3 – Reports and engaged
in misconduct and incapacity under N.J.S.A. 40A:14-147. The hearing officer
found plaintiff did not violate Rule 3:7.5 – Work Expectation.
Employing the concept of "progressive discipline" to consider plaintiff's
"history, not only as an extremely productive . . . proactive and zealous Officer,
A-3400-18 21 but also his failure to respect the rights of our citizens and extend the appropriate
courtesies to them[,]" the hearing officer ultimately recommended the Township
terminate plaintiff's employment. He cited plaintiff's "disregard of the citizens'
right to be free of unreasonable searches and seizures[,]" which was "reflected
not only in the universal use of full disclosure lookups, but also in his interaction
with motorists where, in two document[ed] occasions, he engaged in
inappropriate searches." The Township accepted the hearing officer's findings
and conclusions on May 18, 2018, and terminated plaintiff's employment,
effective that date.
E. Trial Court Proceedings
On May 24, 2018, plaintiff filed a complaint in lieu of prerogative writ for
de novo review of the Township's May 18, 2018 disciplinary decision , pursuant
to N.J.S.A. 40A:14-150. The trial court held a trial de novo on January 9, 2019.
On February 25, 2019, the trial court entered an order affirming plaintiff's
termination and issued an accompanying written opinion in support of the order.
The trial court found "[p]laintiff failed to perform his duties required by law in
violation of Rule 3:1.1" because he was "unable to explain or demonstrate the
proper justification" for using "the MDT to conduct full disclosure inquiries well
A-3400-18 22 over 2,000 times" and "he acknowledged that he knew the restrictions the
Department established for officers, but did not follow those restrictions."
The trial court further determined the inaccuracies in plaintiff's
investigation reports for the May 15, 2015 and November 20, 2015 motor
vehicle stops amounted to a violation of Rule 3:4.3. Regarding the May 15
report, the court found plaintiff "knowingly entered false information" by
writing that he performed a random registration check rather than a full
disclosure inquiry, as his "varying explanations for his report and the
circumstances surrounding the stop render his testimony evasive and
incredible." Additionally, the court found plaintiff's admission to Captain
DePuyt that he should not have misdescribed the distance between his car and
the subject vehicle, his inability to explain why no motor vehicle infraction was
viewable on video, and his changing explanation for the report's inaccuracies
showed he "deliberately entered false information" in his November 22 report.
Indeed, the court found plaintiff's "varying, and nearly inconceivable
explanations[ were] indicative of deliberate misrepresentation to evade
accountability."
The trial court found plaintiff "engage[d] in conduct that constitutes
misconduct and incapacity" by
A-3400-18 23 repeatedly, and for extended amount of time, exclusively us[ing] full disclosure inquiries in his regular policing practices in knowing violation of the restrictions placed on officers by the Department, thereby invading the privacy of thousands of citizens. He also deliberately made knowing misrepresentations to investigating superior officers when questioned about his practice in order to evade accountability, and in one instance appears to have created a pretense to justify a motor vehicle stop.
In addition, plaintiff "demonstrated that he is incapable of properly recording
events." This conduct raised serious questions as to plaintiff's "veracity and
judgment" and showed he failed to "maintain[ ] the high standard of care that
has been placed upon him."
Finally, the trial court stated that "[t]he totality of the record demonstrates
that the penalty of removal is warranted." While plaintiff was never suspended
previously, the court noted plaintiff had six entries in his early warning record,
more than almost all other Department officers, with some involving illegal
searches. The court concluded,
The instant misconduct involving the inappropriate invasion of privacy of thousands of citizens over a period of years, deliberate falsification of police reports, and material misrepresentations made to superior officers and IA alone, warrant removal. These serious acts call into question [p]laintiff's veracity and judgment, the core principals of public service.
A-3400-18 24 Further, [p]laintiff has never held himself accountable, and only sought to evade providing conclusive answers.
This appeal followed, with plaintiff presenting the following points of
argument:
POINT I
THE TRIAL COURT ERRED IN REFUSING TO DISMISS THE CHARGES AS A VIOLATION OF LEVINE’S RIGHTS UNDER WEINGARTEN AND THE AG GUIDELINES
A. DePuyt's November 22, 2015 Interview Violated Levine’s Rights Under Weingarten and the AG Guidelines[.]
B. DePuyt’s Involvement in Levine’s May 26, 2017 Interview Violated the AG Guidelines[.]
C. The Charges Against Levine Must be Dismissed[.]
POINT II
STANDARD OF REVIEW FOR APPEAL OF A DE NOVO PROCEEDING
POINT III
THE TRIAL COURT ERRED IN FINDING THE TOWNSHIP PROVED THE CHARGE OF PERFORMANCE OF DUTY
A. The NJCJIS Policy Does not Prohibit Exclusive use of Full Disclosure Inquiries nor Does it Prescribe a Certain Ratio[.]
A-3400-18 25 B. The Trial Court Erred in Assuming Without Evidence that Levine Conducted Unjustified Full Disclosure Inquiries[.]
C. The Trial Court Improperly Placed the Burden of Proof on Levine and Used the Township’s Refusal to Produce Discovery Against him[.]
D. The Trial Court Erred in Relying on Faulty, Irrelevant Comparisons[.]
POINT IV
THE TRIAL COURT ERRED IN FINDING THE TOWNSHIP PROVED THE CHARGE OF KNOWINGLY FALSIFYING OFFICIAL REPORTS
A. The Totality of the Circumstances do not Support that Levine Knowingly Falsified his Reports[.]
B. May 15, 2015 Motor Vehicle Stop[.]
C. November 20, 2015 Motor Vehicle Stop[.]
POINT V
THE TRIAL COURT ERRED IN FINDING THE TOWNSHIP PROVED THE CHARGE OF MISCONDUCT AND INCAPACITY
A. Levine is not Guilty of Misconduct and Incapacity Because he did not Engage in Official Misconduct[.]
A. Levine is not Guilty of Misconduct and Incapacity Because he did not Breach the Public Trust[.]
A-3400-18 26 POINT VI
THE TRIAL JUDGE ERRED IN ASSESSING AN EXCESSIVE PENALTY AGAINST LEVINE
B. The Seriousness of Levine’s Conduct does not Warrant Termination[.]
C. Progressive Discipline does not Warrant a Termination[.]
III.
In his brief, plaintiff attacks the Township for basing its "bogus charges
on unsupported assumptions, a specious comparison of [his] statistics[,] and two
clerical errors." He further contends the trial court ignored "crucial facts and
supporting law" in affirming his disciplinary conviction and the imposition of
"an arbitrary punishment" that "shocks the conscience."
We reject these contentions and plaintiff's other claims of trial court error,
in light of the record and applicable legal principles. Pursuant to our "limited"
standard of review, Phillips, 117 N.J. at 579, we affirm substantially for the
reasons expressed in the trial court's comprehensive written decision,
recognizing it "is based on findings of fact which are adequately supported by
the evidence" in the record. R. 2:11-3(e)(1)(A). In doing so, we determine the
A-3400-18 27 court's decision was not arbitrary, capricious, or unreasonable. Phillips, 117
N.J. at 579. We add the following comments.
The record clearly shows, and plaintiff readily admits, that he conducted
at least 2,689 full disclosure inquiries unrelated to motor vehicle stops. 3
Plaintiff was unable to provide a credible explanation for these unjustified
inquiries or for the significant disparity between plaintiff's use of full disclosure
inquiries compared to the Department's other officers. This evidence is
sufficient to establish by a preponderance that plaintiff conducted full disclosure
inquiries without "articulable cause" numerous, if not thousands of, times.
As noted, the Supreme Court's decision in Donis, the NJCJIS Security
Policy, and the Department's internal policies bar officers from conducting full
disclosure inquiries absent reasonable suspicion or another justification. The
purpose of this rule is to protect the privacy interests of our state's motorists.
3 Plaintiff provides the calculation for this figure in his brief:
After deducting duplicate entries, out-of-state plates, inquiries run on individual names which must be full disclosure, blank spaces and Xs (which generate when the system auto-populates for an eTicket), and his 705 motor vehicle stops, [plaintiff] arrived at a total of 2,689 inquiries which were unrelated to motor vehicle violations and arrests.
A-3400-18 28 Plaintiff knew of, received training on, and was able to articulate the rule
governing full disclosure inquiries all before the IA investigation against him
commenced. Yet he did not follow it.
Department Rule 3:1.1 – Performance of Duty required plaintiff "perform
[his] duties as required or directed by law, rule and regulations, policies and
procedures or written directive . . . ." By conducting numerous full disclosure
inquiries without the requisite suspicion, cause, or justification, plaintiff failed
to perform his duties as directed by the Court, the Department, and the NJCJIS
Security Policy. Thus, the trial court did not err in finding plaintiff violated
Department Rule 3:1.1.
We likewise find the trial court's determination that plaintiff violated
Department Rule 3:4.3 – Reports was supported by sufficient credible evidence
in the record. Department Rule 3:4.3 required plaintiff refrain from "knowingly
falsify[ing] any official report or enter[ing] or caus[ing] to be entered a ny
inaccurate, false, or improper information on records of the department."
Plaintiff argues he did not violate this rule because he did not "knowingly" or
"intentionally" include false information in either his May 15 or November 20,
2015 reports. This argument lacks merit.
A-3400-18 29 Plaintiff's May 15, 2015 report provided he performed a random inquiry,
but his plate inquiry history revealed he actually performed a full disclosure
inquiry, and the trial court found plaintiff's "varying explanations" for this
discrepancy to be "evasive and incredible." Similarly, plaintiff's November 20,
2015 report included details about a motor vehicle violation that should have
been observable on the video footage of the stop but were not, and the trial court
found plaintiff's "varying, and nearly inconceivable explanations" for these
inconsistencies "to be indicative of deliberate misrepresentation to evade
accountability." Thus, the record shows plaintiff included inaccurate or false
information in the two reports, and his unpersuasive explanations reasonably
convinced the trial court that he included the misrepresentations knowingly.
Therefore, the trial court did not err in finding plaintiff violated Department
Rule 3:4.3.
The evidence in the record showing plaintiff violated the two Department
rules also supports the trial court's finding that plaintiff committed misconduct
as defined by N.J.S.A. 40A:14-147. Our Supreme Court has "held that a finding
of misconduct by a police official need not be predicated on the violation of any
particular department rule or regulation[,]" and may be based merely upon a
deviation from the "implicit standard of good behavior which devolves upon one
A-3400-18 30 who stands in the public eye as the upholder of that which is morally and legally
correct." Phillips, 117 N.J. at 576 (citation omitted). "[T]he qualifications
required to hold [a law enforcement] position require a high level of honesty,
integrity, sensitivity, and fairness in dealing with members of the public ,
knowledge of the law, and a pattern and exhibition of law-abiding conduct."
Gismondi, 353 N.J. Super. at 185. Because "honesty, integrity, and truthfulness
[are] essential traits for a law enforcement officer[,]" the Court has upheld
termination for misconduct where, for example, an officer made conflicting
statements to internal affairs investigators about an off-duty altercation.
Ruroede, 214 N.J. at 362-63.
There is significant evidence in the record demonstrating plaintiff engaged
in misconduct unbecoming of a police officer. Plaintiff showed a lack of
honesty, integrity, and truthfulness by knowingly including false information in
at least two police reports and by actively failing to take responsibility for doing
so. Worse, plaintiff failed to exhibit law-abiding conduct or fairness to members
of the public by bypassing Department policy and a Supreme Court directive to
conduct unjustified full disclosure inquiries that invaded the privacy rights of
potentially more than two thousand New Jersey motorists. Therefore, the trial
A-3400-18 31 court did not err in finding plaintiff engaged in misconduct under N.J.S.A.
40A:14-147.
IV.
Plaintiff's "misconduct" and "disobedience of [Department] rules and
regulations" constituted just cause for the Township to discipline plaintiff.
Plaintiff, however, argues the termination of his employment constituted an
excessive penalty, as neither the seriousness of his conduct nor the doctrine of
progressive discipline warranted termination. In turn, he argues the trial court
should have modified plaintiff's termination to instead impose a more lenient
disciplinary measure.
The concept of "progressive discipline" was developed "to promote
proportionality and uniformity in the rendering of discipline of public
employees." In re Stallworth, 208 N.J. 182, 195 (2011). Public entities employ
the doctrine "(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, 192 N.J. 19, 30-
33 (2006)).
A-3400-18 32 When considering the penalty the municipality imposed upon an officer
on de novo review, the trial 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);
Herrmann, 192 N.J. at 28-29. The trial court may modify, but not increase or
enhance the penalty. Cosme, 304 N.J. Super. at 201-02.
In reviewing the trial court's de novo findings, appellate courts will uphold
"dismissal of employees, without regard to whether the employees have had
substantial past disciplinary records, for engaging in conduct that is unbecoming
to the position." Herrmann, 192 N.J. at 34. In that regard, our Supreme Court
has explained:
[P]rogressive discipline is 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." "Thus, progressive discipline has been bypassed when an employee engages in severe misconduct, especially when the employee's position involves public safety and the misconduct causes risk of harm to persons or property."
[Stallworth, 208 N.J. at 196-97 (citations omitted) (first quoting Carter, 191 N.J. at 484; then quoting Herrmann, 192 N.J. at 33).]
A-3400-18 33 We agree with the trial court here that plaintiff's misconduct was
sufficiently egregious and unbecoming to his office to warrant removal , even
without considering plaintiff's early warning record. Plaintiff violated
Department policy to invade the privacy of potentially thousands of New Jersey
motorists. His early warning record, which further reveals plaintiff's tendency
to conduct unlawful searches, only confirms the appropriateness of the penalty
imposed. Consequently, the determination that plaintiff's removal was justified
is supported by substantial, credible evidence in the record and was not arbitrary,
capricious, or unreasonable.
Plaintiff further contends his rights under Weingarten4 and the AG
guidelines were violated because he did not have representation at the initial
November 2015 meeting with Captain DePuyt and Captain DePuyt participated
in the May 26, 2017 IA interview. Because these violations "impermissibly and
irrevocably tainted the entire investigatory and disciplinary process," plaintiff
argues his termination should be reversed and the charges against him dismissed.
4 N.L.R.B. v. J. Weingarten, Inc. 420 U.S. 251, 260 (1975).
A-3400-18 34 In Weingarten, the United States Supreme Court held that, pursuant to the
National Labor Relations Act (NLRA), a union member is entitled to
representation at an interview by management "only in situations where the
employee requests representation" and "where the employee reasonably
believe[s] the investigation will result in disciplinary action." 420 U.S. at 257.
The NLRA does not apply to public employees in New Jersey, but N.J.S.A.
34:13A-5.4(a)(1) has been interpreted to provide public employees the same
right, which if violated will constitute an unfair labor practice. Hernandez v.
Overlook Hosp., 149 N.J. 68, 75 (1997); In re Univ. of Med. & Dentistry of N.J.,
144 N.J. 511, 527 (1996).
Citing Weingarten, the AG guidelines provide the right to representation
attaches when he "requests representation and reasonably believes the interview
may result in disciplinary action." New Jersey Attorney General, Internal
Affairs Policy & Procedures 51 (Dec. 2019)5 (citing Weingarten, 420 U.S. at
251). See also Univ. of Med. & Dentistry, 144 N.J. at 530. The guidelines
further require an officer be advised prior to the start of questioning when he is
the subject of an investigation and emphasize, "Investigators must strive to
5 Available at: https://www.nj.gov/oag/dcj/agguide/directives/2019- Internal_Affairs_Policy_and_Procedures.pdf A-3400-18 35 conduct a thorough and objective investigation without violating the rights of
the subject officer or any other law enforcement officer." Id. at 28, 50.
The trial court, in a footnote, rejected plaintiff's claim that his Weingarten
rights were violated because he lacked representation during the initial
November 2015 meeting with Captain DePuyt. First, the trial court noted
plaintiff first raised this issue during oral argument, and not before the hearing
officer or in written brief. Rejecting the claim on its merits, the court found:
Captain DePuyt credibly testified without contradiction that the purpose of the meeting was "an informal inquiry" related to the discrepancies in the motor vehicle stop and corresponding report as well as the use of random inquiries. . . . There was no decision to conduct an investigation or impose discipline prior to this meeting.
The court also cited Captain DePuyt's testimony indicating the purpose of the
meeting was to find out if he would pursue disciplinary measures. Based on this
evidence, the court concluded, "there would be no reason for . . . [p]laintiff to
believe he would be subject to discipline" and thus, "there was no Weingarten
violation."
We agree with the trial court's analysis here and add only that per
Weingarten and the AG guidelines, an officer is only entitled to the benefit of
A-3400-18 36 counsel when he requests representation. Plaintiff made no such request before
the initial meeting with Captain DePuyt.
We also find no merit in plaintiff's contention that Captain DePuyt's
participation in the May 26, 2017 interview violated the AG guidelines requiring
IA investigations be conducted by objective investigators. Captain DePuyt
testified that his only role in IA investigation was gathering data for Fairweather,
reducing his recollections to writing, attending the IA interview, and attending
a meeting where Fairweather referred the case to the MCPO. Fairweather
otherwise conducted the investigation independently from Captain DePuyt.
Both witnesses were deemed credible. Additionally, we fail to understand how
Captain DePuyt's presence at the IA interview prejudiced plaintiff when he
would have been questioned about his previous statements to DePuyt regardless
of whether DePuyt attended the interview.
Before his termination, plaintiff was afforded an IA interview with
Weingarten representation and a multi-day hearing before an appointed hearing
officer. The Township's decision was then reviewed by the trial court and now
by this court. We are satisfied that the charges against plaintiff and his
termination received a thorough, objective review.
A-3400-18 37 Any arguments not specifically addressed lack sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
A-3400-18 38