SERGEANT GEORGE FOSS v. PENNSAUKEN TOWNSHIP POLICE DEPARTMENT (2014)

Plaintiff George Foss appeals from an order of the Law Division granting summary judgment in favor of the Township of Pennsauken, and upholding the imposition of a four-day suspension for insubordination and refusal to obey orders from a superior officer.   We affirm.

The underlying facts, as adduced from the disciplinary hearing conducted by Hearing Officer John P. Jehl on November 30, 2011, are not in dispute.   Foss, a sergeant in the Township Police Department, was served with a Preliminary Notice of Disciplinary Action (PDNA) charging him with insubordination and refusal to obey orders from a superior officer.   Foss reported for duty on October 4, 2010 knowing that he was scheduled for a furlough on that day.

On May 19, 2010, the Township and the Fraternal Order of Police Garden State Lodge No. 3 (Union) entered into a Side Letter Agreement, modifying the original Collective Bargaining Agreement, to address a budgetary shortfall and avert layoffs.   The Agreement provided that, for the balance of the year, all covered officers would be furloughed for four days without pay.   Foss was a member of that Union.   In August, all officers were notified of their scheduled furlough days and each, including Foss, acknowledged receipt of the information.   Foss was assigned September 4, October 4, November 7, and December 11 as furlough days.

On September 4, 2010, Foss appeared for duty.   According to Chief Coffey, the department had not been advised how to proceed if an officer came to work on his furlough day;  therefore, the officer on duty permitted Foss to work his shift.   As a result of this incident, Coffey issued a memorandum on September 9, 2010, informing all officers that if any officer reported to work on their furlough day, they would not be paid for that day.¹  Upon receiving a copy of the Side Agreement, Coffey issued another memorandum on September 16, which reiterated the earlier directive, but added that any officer who reported to work on an assigned furlough day may face disciplinary action.

On October 4, his second furlough day, Foss reported for his 7:00 p.m. shift.   The officer on duty contacted Coffey at home to inform him that Foss reported to work.   Coffey immediately went to the police department to discuss the matter with Foss. Once there, Foss told him that “he was not purposely violating any order or being insubordinate, it was that he did not agree with the F.O.P.'s stance on the implementation of furlough days.”   Coffey advised Foss that he would not order him from headquarters because he, like every police department employee, was allowed access to headquarters when off duty.   However, he informed Foss that he would not be assigned any duties and would not be paid for that day.

At the disciplinary hearing on November 30, 2010, Coffey testified that he considered the September 16 memorandum a warning and that he expected his officers to comply with the agreement and not show up on their furlough days.   He also testified that he did not believe Foss was insubordinate on October 4, as he neither disregarded any direct order, nor violated any administrative code.

The hearing officer determined that Foss knowingly reported to work on an assigned furlough day, and placed his superior officers in a difficult situation.   As a result, he found Foss guilty of the charges.   The hearing officer recommended a four-day suspension and reasoned that Foss should be held to a higher standard of conduct than ordinary citizens.   The Township accepted the hearing officer's factual findings and imposed the four-day suspension.

Foss filed a complaint in the Law Division for declaratory judgment and action in lieu of prerogative writs seeking de novo review of the Township's action pursuant to N.J.S.A. 40A:14–150.   The Township filed a motion for summary judgment and Foss filed a cross-motion for summary judgment.   After oral argument before Judge Faustino J. Fernandez–Vina, the judge issued an oral opinion on September 28, 2012, in which he found by a preponderance of the evidence that the record supported both the hearing officer's findings and the sanctions imposed by the Township.   The court granted the Township's motion for summary judgment and denied plaintiff's cross-motion.

This appeal followed.   Foss raises the following points for our consideration:

POINT I

THE [TOWNSHIP] FAILED TO MEET THEIR BURDEN TO SHOW THAT [FOSS] WAS GUILTY OF THE CHARGES.

POINT II

[FOSS] IS ENTITLED TO SUMMARY JUDGMENT, AS THE FACTS DEMONSTRATED THE TOWNSHIP ACTED ILLEGALLY IN CHARGING SGT. FOSS.

We have carefully considered the record in light of the applicable legal principles and arguments of counsel and reject all of the arguments advanced.

When a trial court undertakes review of a municipality's conviction of a police officer on a disciplinary charge, the trial court considers the matter “ ‘anew, afresh [and] for a second time.’ ”  In re Disciplinary Procedures of Phillips, 117 N.J. 567, 578 (1990) (quoting Romanowski v. Brick Twp., 185 N.J.Super. 197, 204 (Law Div.1982), aff'd o.b., 192 N.J.Super.   79 (App.Div.1983)).   In doing so, the trial court does not apply an abuse of discretion standard but makes it own findings of fact.  Ibid. The trial court is called upon to “make reasonable conclusions based on a thorough review of the record,” and may reverse, affirm, or modify a disciplinary conviction under its broad authority.  Id. at 579.   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.

Moreover, we play a limited role when reviewing a de novo proceeding.   Ibid. We will not disturb the trial court's determination unless it was arbitrary, capricious, or unreasonable or not supported by substantial credible evidence in the record.  Ibid.

Applying those well established principles, we are convinced that there is sufficient credible evidence in the record to support the trial court's findings.   Foss may not have acted with the intent to be insubordinate;  nevertheless, the evidence was sufficient to support findings of insubordination and failure to obey an order of a superior officer.

We recognize “the importance of maintaining discipline within the paramilitary organization to a police department.”  Rivell v. Civil Serv. Comm'n, 115 N.J.Super. 64, 72 (App.Div.), cert. denied, 59 N.J. 269 (1971).  “Refusal to obey orders and disrespect cannot be tolerated.   Such conduct adversely affects the morale and efficiency of the department.”  Ibid. “As long as one remains a member of the police department, he must comport himself properly and not do any acts which tend to impair the morale and discipline of the police department.”  Id. at 71.

The trial court did not give much, if any weight, to Coffey's perception that Foss did not violate a direct order or disrupt the activities of the police department.   The court correctly concluded that Foss intentionally violated the September 16 directive.   Moreover, Foss's claim that he did not violate any direct order or code is irrelevant.   A finding of misconduct “need not be predicated on the violation of any particular department rule or regulation.”   Phillips, supra, 117 N.J. at 576 (citing In re Emmons, 63 N.J.Super. 136, 140 (App.Div.1960)).   Foss's conduct violated the implicit standard of good behavior and integrity of a ranking member of the police department.   See Karins v. City of Atl. City, 152 N.J. 532, 555 (1998).

We conclude the trial court accorded appropriate deference to the hearing officer's findings and reasonably concluded that Foss's behavior on October 4 constituted insubordination and failure to obey an order from a superior officer.

Additionally, Foss asserts the Township improperly filed the PDNA, as the correct person did not sign it, thereby rendering it jurisdictionally barred.   Foss contends the Public Safety Director is the only person with the authority to sign the PDNA. In support of this position, Foss cites N.J.S.A. 40A:14–118,² and Township Ordinance § 52–9,³ creating the Director of Public Safety position, which when read together, he argues, designates the Director of Public Safety as the appropriate authority having the responsibility to discipline police department personnel.   We reject this claim as it unnecessarily conflates the roles and duties assigned to the “appropriate authority” and the “appointing authority.”

The civil service regulations require that the PDNA state the charges and the facts supporting the charges.  N.J.A.C. 4A:2–2.5. The regulations do not specify who must sign the PDNA, but rather requires the signature of the “appointing authority or authorized agent.”   See Grill v. City of Newark, 311 N.J.Super. 149, 155 (Law Div.1997).   The appointing authority is defined as “a person or group of persons having power of appointment or removal.”   N.J.A.C. 4A:1–1.3. In this case, the appointing authority is the Township, as it has authority to hire and appoint the members of the police department.   The Township Administrator is the Township's agent.   Notwithstanding the Public Safety Director's authority to discipline members of the police department, we conclude that the Township Administrator, as agent for the appointing authority, appropriately signed the PDNA.

Concerning the sanction imposed, we accord deference to the agency's disciplinary measures.   See In re Herrmann, 192 N.J. 19, 34–35 (2007).   We do not substitute our judgment for that of the agency.  In re Revocation of the License of Polk, 90 N.J. 550, 578 (1982).   The test in reviewing administrative sanctions is “whether such punishment is so disproportionate to the offense, in the light of all the circumstances, as to be shocking to one's sense of fairness.”  Ibid. (internal quotation marks omitted).

Here, substantial evidence in the record supports the imposition of a four-day suspension.   Given the higher standard of conduct required of police officers, we discern no abuse of agency discretion in imposing a four-day suspension, as proportionate to the seriousness of the violation.

Affirmed.

FOOTNOTES

FN1. On September 10, Foss filed a grievance with Chief Coffey because he did not get paid for his eight-hour shift on September 4..  FN1. On September 10, Foss filed a grievance with Chief Coffey because he did not get paid for his eight-hour shift on September 4.

FN2. N.J.S.A. 40A:14–118 reads, in pertinent part:The governing body of any municipality, by ordinance, may create and establish, as an executive and enforcement function of municipal government, a police force, whether as a department or as a division, bureau or other agency thereof, and provide for the maintenance, regulation and control thereof․  Any such ordinance, or rules and regulations, shall provide that the chief of police, if such position is established, shall be the head of the police force and that he shall be directly responsible to the appropriate authority for the efficiency and routine day to day operations thereof, and that he shall, pursuant to policies established by the appropriate authority:a.  Administer and enforce rules and regulations and special emergency directives for the disposition and discipline of the force and its officers and personnel;․As used in this section, “appropriate authority” means the mayor, manager, or such other appropriate executive or administrative officer, such as a full-time director of public safety, ․ established by ordinance for such purposes․.  FN2. N.J.S.A. 40A:14–118 reads, in pertinent part:The governing body of any municipality, by ordinance, may create and establish, as an executive and enforcement function of municipal government, a police force, whether as a department or as a division, bureau or other agency thereof, and provide for the maintenance, regulation and control thereof․  Any such ordinance, or rules and regulations, shall provide that the chief of police, if such position is established, shall be the head of the police force and that he shall be directly responsible to the appropriate authority for the efficiency and routine day to day operations thereof, and that he shall, pursuant to policies established by the appropriate authority:a.  Administer and enforce rules and regulations and special emergency directives for the disposition and discipline of the force and its officers and personnel;․As used in this section, “appropriate authority” means the mayor, manager, or such other appropriate executive or administrative officer, such as a full-time director of public safety, ․ established by ordinance for such purposes․

FN3. Neither party provided a copy of the Township ordinance for our review..  FN3. Neither party provided a copy of the Township ordinance for our review.

The opinion of the court was delivered by MAVEN, J.A.D.