NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-5119-14T4
IN THE MATTER OF JOSEPH ISAACSON AND TOWNSHIP OF HARDYSTON. _________________________________
Argued December 21, 2016 – Decided February 27, 2017
Before Judges Simonelli, Carroll and Gooden Brown.
On appeal from the Superior Court of New Jersey, Law Division, Sussex County, Docket No. L-0640-12.
Eric L. Harrison argued the cause for appellant Township of Hardyston (Methfessel & Werbel, attorneys; Mr. Harrison, of counsel and on the briefs; Jennifer M. Herrmann, on the briefs).
Jeffrey D. Catrambone argued the cause for respondent Joseph Isaacson (Sciarra & Catrambone, L.L.C., attorneys; Mr. Catrambone, of counsel and on the brief).
PER CURIAM
Appellant Township of Hardyston (Township) appeals from the
May 20, 2015 Law Division order, which vacated the termination of
respondent Joseph Isaacson from his employment as a police officer,
imposed a ten-day suspension, and reinstated Isaacson with back
pay and benefits. The Township also appeals from the June 10, 2015 order, which awarded Isaacson attorney's fees pursuant to
N.J.S.A. 40A:14-155. We reverse both orders.
I.
The procedural history and factual background of this case
are set forth in our opinion in Isaacson v. Public Employment
Relations Commission, No. A-2991-14, issued simultaneously with
this opinion and incorporated herein. We reiterate some of those
facts and add facts that are pertinent to this appeal.
In 2008, Isaacson began his employment as a police officer
with the Township of Hardyston Police Department (HPD). During
his tenure, he had always been at the top of the HPD's list for
issuing the most summonses.
On May 16, 2012, Isaacson was on duty when he stopped at a
delicatessen on Route 23 in Franklin Borough (Franklin). After
leaving the delicatessen, he proceeded onto Route 23 south in
Franklin, where he saw a vehicle with a cracked windshield turning
onto the roadway. Isaacson followed the vehicle and entered the
license plate number into the mobile data terminal in his patrol
vehicle. After discovering that the driver, Christopher Smith,
had an outstanding warrant and suspended license, Isaacson stopped
the vehicle in the parking lot of a restaurant located in Franklin.
Despite knowing he was in Franklin and that he never observed
Smith's vehicle in Hardyston, Isaacson falsely informed the HPD
2 A-5119-14T4 dispatcher that his location was "23 on the mountain," referring
to a location in Hardyston. Approximately eleven minutes later,
Isaacson falsely informed the HPD dispatcher that he was moving
into the parking lot of the restaurant. When HPD Police Officer
Andrew Norman arrived at the scene, Isaacson twice lied to him
about where he first saw Smith's vehicle.
The HPD has a standard operating procedure (SOP) that
prohibits its police officers from serving or attempting to serve
legal process in another jurisdiction without being accompanied
by an officer from that jurisdiction (the out-of-jurisdiction
SOP). Isaacson requested that an officer from the Franklin Police
Department respond to the scene, but no officer responded.
Isaacson made no further request and, without being accompanied
by a Franklin police officer, issued two summonses to Smith from
the Hardyston Municipal Court, on which he falsely certified that
Smith unlawfully operated his motor vehicle in Hardyston. Isaacson
placed Hardyston municipal codes on the summonses and marked the
word "rural" in the area designation. Isaacson also filed a police
report with the HPD, which falsely stated that the stop occurred
on Route 23 in Hardyston. He also collected bail from Smith for
the outstanding warrant, completed a bail recognizance form, and
submitted the bail form and summonses to the HPD.
3 A-5119-14T4 Suspecting that Isaacson had lied about the location of the
stop, the HPD began an internal affairs investigation. During his
internal affairs interview, Isaacson initially lied about where
he first observed Smith's vehicle and first called in the stop to
the HPD dispatcher. He eventually admitted that he never observed
Smith's vehicle in Hardyston; knew the location of the Hardyston
town line; knew he was in Franklin when he stopped Smith; and knew
he was required to notify the out-of-jurisdiction agency of the
stop, but did not do so.
After the investigation was completed, the Township suspended
Isaacson with pay and charged him with violating several HPD rules
and regulations (HPDRR) and SOPs by: (1) leaving his patrol vehicle
running while unoccupied; (2) operating the mobile data terminal
on his patrol vehicle while driving; (3) serving a warrant on a
person in Franklin without requesting backup from the Franklin
police; (4) lying and/or making a misrepresentation while on a
motor vehicle stop and in connection with an internal affairs
investigation; and (5) intentionally falsifying documents relating
to a motor vehicle stop and arrest in Franklin. The Township
sought Isaacson's termination.
A hearing was held before a neutral hearing officer, who
sustained all of the disciplinary charges against Isaacson. The
hearing officer found that Isaacson: (1) knew the traffic violation
4 A-5119-14T4 he observed occurred outside the boundaries of Hardyston; (2)
admitted he was in another jurisdiction when he observed Smith's
vehicle; and (3) despite knowing he was outside of Hardyston,
still served a summons in Franklin without being accompanied by a
Franklin police officer. The hearing officer concluded that
Isaacson violated the out-of-jurisdiction SOP.
The hearing officer found several instances where Isaacson
lied during both the motor vehicle stop and his internal affairs
interview. The hearing officer determined that despite never
observing Smith's vehicle in Hardyston, Isaacson issued two
Hardyston summonses to Smith. The hearing officer noted it was
undisputed that Isaacson observed Smith's vehicle only in
Franklin, and thus, was legally required to issue appropriate
summonses on a Franklin summons book. The hearing officer also
noted that writing a summons for a violation that occurred outside
Hardyston "would be the equivalent to a false official public
record." The hearing officer also found that Isaacson knowingly
and willfully made false entries on the two summonses. The hearing
officer concluded that Isaacson violated the HPDRR that required
HPD police officers to be truthful at all times whether under oath
or not, and the HPDRR that prohibited HPD police officers from
knowingly and willfully making a false entry in a departmental
report or record.
5 A-5119-14T4 In determining the appropriate penalty, the hearing officer
cited to the Township's Law Enforcement Code of Ethics, which
requires police officers to be honest and exemplary in obeying the
law. The hearing officer concluded as follows:
The evidence, in this case, overwhelmingly proves Isaacson is no longer true to the ethics of police service because Isaacson's conduct is proven, by the preponderance of all credible evidence presented in this case, to have violated the honorable calling of being a law enforcement officer.
Based on the seriousness of Isaacson's conduct, offering individual penalties for the sustained charges would be senseless; therefore, wavering adherence to such a moral philosophy will earn for Isaacson the disrespect and ill-support of the public and once that trust is shattered (as it is in this case), the only acceptable resolution is separating the law enforcement officer from their publically held position. As a result, Isaacson's actions unthinkably undermined a fundamental prerequisite for being a law enforcement officer; honesty. Therefore, the only acceptable penalty for any irreversible sworn employee's incredible behavior is termination.
The Township adopted the hearing officer's decision and
terminated Isaacson, effective September 19, 2012. Following his
termination, Isaacson filed a request with the Public Employment
Relations Commission (PERC) for special disciplinary arbitration
and the appointment of an arbitrator pursuant to N.J.S.A. 40A:14-
150, -209, and -210, and N.J.A.C. 19:12-6.1. On February 18,
6 A-5119-14T4 2013, the arbitrator rendered an order and final decision
sustaining only the less serious charges of leaving a patrol
vehicle running while unoccupied, and operating the mobile data
terminal on the patrol vehicle while driving. The arbitrator
rescinded Isaacson's termination, imposed a ten-day suspension
without pay, and required the Township to immediately reinstate
him with full back pay, rights, and benefits.
On February 21, 2013, Isaacson filed an order to show cause,
seeking temporary restraints and a preliminary injunction to
enforce the arbitration award. The Township opposed the order to
show cause and filed a motion to vacate the arbitration award.
Following a de novo review, the trial judge affirmed the
arbitration award and denied the Township's motion to vacate. On
April 17, 2013, the judge entered an order requiring the Township
to immediately reinstate Isaacson with back pay and full benefits.
On June 27, 2013, the judge entered an order awarding Isaacson
attorney's fees pursuant to N.J.S.A. 40A:14-155.
The Township appealed both orders. We reversed PERC's
appointment of an arbitrator and the arbitration award, and
remanded to PERC to determine whether the matter was arbitrable
under either N.J.S.A. 40A:14-209 or -210. Twp. of Hardyston v.
Isaacson, Nos. A-3425-12 and A-4180-12 (App. Div. July 9, 2014)
(slip op. at 12), certif. denied, 220 N.J. 98 (2014). We also
7 A-5119-14T4 reversed the award of attorney's fees, finding that Isaacson was
not entitled to attorney's fees under N.J.S.A. 40A:14-155 because
he was not acquitted of all charges. Id. at 13-14. On remand,
PERC determined that Isaacson was not eligible for arbitration and
dismissed his request for arbitration. We affirmed PERC's decision
in the opinion filed simultaneously with this opinion. See
Isaacson v. Pub. Emp't Relations Comm., supra, (slip op. at 18).
The matter returned to the same judge, who held a hearing at
which Isaacson testified. On direct examination, Isaacson
testified that he was never trained with respect to out-of-
jurisdiction motor vehicle stops; there was no written HPD policy
for out-of-jurisdiction stops; and he was not trained in the police
academy on how to conduct an out-of-jurisdiction stop. On cross-
examination, however, Isaacson conceded that he had admitted
during his internal affairs interview that he was required to
notify the out-of-jurisdiction agency of the Smith stop, but did
not do so.
Isaacson also testified on cross-examination about two
documents that he had prepared two years prior to the Smith stop.
One document concerned an incident that occurred in Franklin,
where Isaacson asked the HPD dispatcher to request that a Franklin
police officer respond to the scene. Isaacson admitted that this
document showed he knew he had to notify the Franklin Police
8 A-5119-14T4 Department for an incident that occurred in Franklin. The second
document concerned an incident that occurred in Hamburg, where
Isaacson notified the Hamburg Police Department and remained on
the scene until they arrived. Isaacson admitted that he knew he
was not in Hardyston and had to call the Hamburg Police Department
for backup.
In his oral opinion, the judge criticized the involvement of
the Sussex County Prosecutor's Office in this matter, stating it
had the capacity to deprive Isaacson of his rights. This criticism
was unwarranted and not supported by the record. Because this
matter indicated the possibility of a criminal act, the
Prosecutor's involvement was required. See Isaacson v. Pub. Emp't
Relations Comm., supra, (slip op. at 7-9).
More importantly, however, the judge found that Isaacson had
a full evidentiary hearing before a "neutral" hearing officer who
made "very specific findings" by a preponderance of the evidence.
The judge determined that the hearing officer's factual findings
were "fully supported by the evidence[,]" and affirmed the hearing
officer's conclusions that Isaacson violated the HPDRRs and SOPs;
lied numerous times during the motor vehicle stop and his internal
affairs interview; and knowingly and willfully falsified public
documents.
9 A-5119-14T4 Despite this ruling, the judge determined that the penalty
of termination was excessive. The judge found that the lack of
training with regard to this out-of-jurisdiction situation
mitigated Isaacson's conduct, and thus, progressive discipline was
appropriate. The judge viewed Isaacson's conduct as less serious
than police conduct that warranted termination, such as violence
perpetrated on individuals or efforts to deprive citizens of their
civil rights.
The judge entered an order on May 20, 2015, vacating the
Township's removal of Isaacson; imposing a ten-day suspension
without pay; and ordering Isaacson's reinstatement with full
benefits, among other things. The judge stayed the order pending
appeal. On June 10, 2015, the judge entered an order awarding
Isaacson attorney's fees pursuant to N.J.S.A. 40A:14-155.
II.
On appeal, the Township argues that the judge erred in
disregarding the penalty imposed by the Township and in imposing
a ten-day suspension despite the hearing officer's findings that
Isaacson lied multiple times and knowingly and willfully falsified
10 A-5119-14T4 public documents. The Township concludes that Isaacson's proven
dishonesty warranted his termination.1 We agree.
We begin with a review of the relevant statutes governing
police disciplinary proceedings, N.J.S.A. 40A:14-147 to -151. A
police officer cannot be removed "for political reasons or for any
cause other than incapacity, misconduct, or disobedience of rules
and regulations" and may not "be suspended, removed, fined or
reduced in rank" without "just cause[.]" N.J.S.A. 40A:14-147. An
officer must be apprised of any such charges by way of written
complaint and is entitled to a hearing. Ruroede v. Borough of
Hasbrouck Heights, 214 N.J. 338, 354 (2013).
If the hearing officer upholds the charges, the police officer
can seek review from the Superior Court, which hears the matter
de novo on the record below. Id. at 355 (citing N.J.S.A. 40A:14-
150). The court may allow the parties to supplement the record,
but its powers are statutorily limited in that it may reverse,
affirm or modify the conviction; it may not remand to the hearing
officer for a new disciplinary hearing. Id. at 355, 360; see also
N.J.S.A. 40A:14-150.
1 We decline to address Isaacson's responding arguments that he did not commit the alleged violations and the hearing officer was not independent, neutral, and unbiased. The trial judge found that the hearing officer was "neutral" and affirmed the hearing officer's findings and conclusions that Isaacson was guilty of the disciplinary charges. Isaacson did not appeal the judge's ruling.
11 A-5119-14T4 On de novo review, the trial court makes its own findings of
fact. In re Phillips, 117 N.J. 567, 578 (1990). Our role in
reviewing the de novo proceeding is limited. Id. at 579. Unlike
the trial court, we do not ordinarily make new factual findings,
but merely "decide whether there was adequate evidence before the
. . . [c]ourt to justify its finding[s]." Ibid. We should not
disturb the trial court's de novo findings unless we find that the
court's decision was arbitrary, capricious or unreasonable or
"[un]supported by substantial credible evidence in the record as
a whole[.]" Ibid. (alteration in original) (citations omitted).
Our review of the court's legal conclusions is plenary. Manalapan
Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
Applying these principles, we reverse the judge's decision to
vacate Isaacson's termination.
"[A] police officer is a special kind of public employee"
held to a higher standard of personal integrity and dependability
than a civilian employee because he is a sworn law enforcement
officer. Twp. of Moorestown v. Armstrong, 89 N.J. Super. 560, 566
(App. Div. 1965), certif. denied, 47 N.J. 80 (1966). A police
officer's "primary duty is to enforce and uphold the law." Ibid.
The officer "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[.]" Ibid.
12 A-5119-14T4 Although the concept of progressive discipline, which
promotes uniformity and proportionality in the discipline of
public employees, has long been a recognized and accepted
principle, West New York v. Bock, 38 N.J. 500, 523 (1962), our
courts have also long acknowledged that "some disciplinary
infractions are so serious that removal is appropriate
notwithstanding a largely unblemished prior record." In re Carter,
191 N.J. 474, 484 (2007). "[T]he question for the courts is
whether such punishment is so disproportionate to the offense, in
light of all the circumstances, as to be shocking to one's sense
of fairness". Ibid. (citation omitted). In cases involving police
discipline, "public safety concerns may also bear upon the
propriety of the dismissal sanction." Id. at 485. In such cases,
the court must be careful not to substitute its judgment for the
judgment exercised by those charged with making disciplinary
decisions. Id. at 486.
Here, there was no credible evidence in the record supporting
a mitigation of the penalty of termination based on a lack of
training for out-of-jurisdiction stops. Contrary to Isaacson’s
self-serving testimony, the credible evidence showed that he knew
of the out-of-jurisdiction SOP prior to the Smith stop and followed
it on two prior occasions. In addition, he admitted during his
internal affairs interview that he knew he was required to notify
13 A-5119-14T4 the out-of-jurisdiction agency of the Smith stop, but did not do
so. Isaacson was not a rookie police officer with limited
experience. He had approximately five years' experience with the
HPD at the time he stopped Smith and was consistently at the top
of the HPD list for issuing the most summonses. Having years of
experience, he knew or should have known of the out-of-jurisdiction
SOP.
The hearing officer concluded, and the judge affirmed, that
Isaacson lied numerous times, violated the HPDRRs and SOPs, and
knowingly and willfully falsified public documents. The record
established that Isaacson acted inappropriately for a person
holding the public trust as a police officer, knew or should have
known of the HPDRRs and SOPs he violated, and knew or should have
known not to lie or make misrepresentations during the stop and
course of the internal affairs investigation and not to falsify
public documents. Isaacson's egregious conduct "call[ed] into
question his honesty, integrity, and truthfulness, essential
traits for a law enforcement officer." Ruroede, supra, 214 N.J.
at 362. His dishonesty was significant and potentially criminal.
See Isaacson v. Pub. Emp't Relations Comm., supra, (slip op. at
14-15). His conduct, and the disciplinary charges for which he
was convicted, clearly supported termination of his employment as
a police officer.
14 A-5119-14T4 III.
The Township argues that the judge erred in awarding Isaacson
attorney's fees under N.J.S.A. 40A:14-155. We agree.
We determined the attorney's fee issue on the merits in Twp.
of Hardyston v. Isaacson, supra, (slip op. at 14). If an issue
has been determined on the merits in a prior appeal, it cannot be
re-litigated in a later appeal of the same case, even if of
constitutional dimension. Washington Commons, LLC v. City of
Jersey City, 416 N.J. Super. 555, 564 (App. Div. 2010) (citation
omitted), certif. denied, 205 N.J. 318 (2011).
In any event, we reiterate that to be entitled to
reimbursement of attorney's fees under the statute for a
disciplinary matter, the police officer must be acquitted of all
charges. Twp. of Waterford v. Babli, 158 N.J. Super. 569, 572,
(Cty. Ct. 1978), aff'd o.b., 168 N.J. Super. 18 (App. Div. 1979).
Because Isaacson was not acquitted of all disciplinary charges,
he was not entitled to attorney's fees under N.J.S.A. 40A:14-155.
Reversed.
15 A-5119-14T4