In re Perez, A-3769-19

CourtNew Jersey Superior Court – Appellate Division
Writing for the CourtPER CURIAM
PartiesIN THE MATTER OF ALEJANDRO PEREZ, KEAN UNIVERSITY.
Docket NumberA-3769-19
Decision Date15 February 2022

IN THE MATTER OF ALEJANDRO PEREZ, KEAN UNIVERSITY.

No. A-3769-19

Superior Court of New Jersey, Appellate Division

February 15, 2022


NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued February 2, 2022

On appeal from the New Jersey Civil Service Commission, Docket No. 2020-615.

Arthur J. Murray argued the cause for appellant Alejandro Perez (Alterman & Associates, LLC, attorneys; Stuart J. Alterman, of counsel; Arthur J. Murray, on the briefs).

Achchana Ranasinghe, Deputy Attorney General, argued the cause for respondent Kean University (Andrew J. Bruck, Acting Attorney General, attorney; Donna Arons, Assistant Attorney General, of counsel; Achchana Ranasinghe, on the brief).

Andrew J. Bruck, Acting Attorney General, attorney for respondent New Jersey Civil Service Commission (Debra A. Allen, Deputy Attorney General, on the statement in lieu of brief).

Before Judges Whipple, Geiger and Susswein.

PER CURIAM

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Appellant Alejandro Perez was employed as a police officer by respondent Kean University (Kean). Perez was removed from employment effective August 23, 2019, due to misconduct on February 6, 2019, and false statements he made to an internal affairs investigator regarding that misconduct. Perez appeals from the final administrative action of the Civil Service Commission (Commission) affirming the granting of Kean's motion for summary decision and his removal. We affirm.

We derive the following facts and procedural history from the record. Perez was employed by Kean as a campus police officer in the Kean University Police Department (KUPD). On February 6, 2019, Perez was dispatched around 3:00 a.m. to aid a student who complained of a sinus infection. Perez called an ambulance to transport the student to the hospital and then called Public Safety Telecommunicator Stephanie Willix. On the recorded telephone line, Perez made several derogatory and insensitive comments about the student because Perez felt the student somehow wasted his time or was not sick enough to warrant his attention. Perez told Willix that the student was a "f**king loser" and that he "will run [the student's] ass over with this f**king car." Perez and Willix laughed and made additional jokes about the student, including Perez's statement that the student should "tie the knot around [his] head." A log of the call included the inappropriate language that

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was uttered. At one point, Perez referred to the student looking like the character Private Pyle from the movie Full Metal Jacket.

Following the mocking phone call, Perez continued the night shift by going to the Field House gymnasium (gym) on the Kean campus. Perez called out for a meal break and went to exercise at the gym. Perez entered the locked gym at about 3:11 a.m. Perez removed his duty weapon, police-issued radio, and cell phone and laid them unsecured and unattended on a chair in a public area of the gym. Before exercising, Perez used the restroom and became stuck inside when the restroom door would not open. Perez could not call for help because his radio and cell phone were both in the gym.

Perez was discovered around 4:00 a.m. by a custodian employed by a third-party, who tried to open the door but could not. The custodian called campus police and KUPD Lieutenant Keith Graham and Officer Sage Kaneshige responded at around 4:51 a.m. The officers used a crowbar to pry the door open, resulting in $1, 573 in damages. The officers then socialized in the gym until 5:31 a.m. Perez, Graham, and Kaneshige left the gym and entered their respective patrol vehicles at 5:34 a.m. based on surveillance footage. Perez remained inside his patrol vehicle while parked outside the gym until 7:24 a.m. and did not perform any patrol duties between the time he was freed from the restroom until the end of his shift at 8:00 a.m.

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An internal affairs investigation of the events of February 6 was conducted by KUPD Lieutenant Thomas Hargrove. On March 28, 2019, Perez was interviewed by Hargrove in the presence of his attorney and union representative. Perez was untruthful at this interview when he stated he and Graham spoke for approximately twenty minutes before they both drove off to resume patrol duties. Video surveillance footage showed Perez remained parked next to Graham's vehicle for one hour and fifty minutes after they left the gym. While there was no allegation that Perez failed to respond to a call for service, he was not patrolling the campus during the remainder of his shift.

On June 12, 2019, Perez was served with a Preliminary Notice of Disciplinary Action (PNDA) that charged him with incompetency, inefficiency, or failure to perform duties, N.J.A.C. 4A:2-2.3(a)(1); conduct unbecoming a public employee, N.J.A.C. 4A:2-2.3(a)(6); neglect of duty, N.J.A.C. 4A:2-2.3(a)(7); and other sufficient cause, N.J.A.C. 4A:2-2.3(a)(12). Kean also charged Perez with violation of numerous KUPD Rules and Regulations, including failure to abide rules and regulations (3.1.3), failure to obey laws, rules, policies, and procedures (4.1.3), failure to perform assigned duties (3.1.9, 4.1.1, 6.1.1), failure to conduct himself in accordance with high ethical standards (3.1.6), improper handling of firearms (4.8.1, 4.8.3), improper care of department property (4.8.4), improper use of department

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vehicles (4.8.9), failure to be truthful at all times (4.12.6), failing to be courteous and orderly when dealing with the public (4.10.1), and committing repeated violations (6.1.2). It also charged Perez with violating General Order 22.3.1.4A, which requires officers to sign a release form before using Kean's workout facilities. The PNDA advised Perez that Kean sought his removal.

A departmental hearing took place on July 3, 2019. Perez was served with an August 21, 2019 Final Notice of Disciplinary Action ("FNDA"), removing him effective August 23, 2019 on the following charges: incompetency, inefficiency, or failure to perform duties, N.J.A.C. 4A:2-2.3(a)(1); conduct unbecoming a public employee, N.J.A.C. 4A:2-2.3(a)(6); neglect of duty, N.J.A.C. 4A:2-2.3(a)(7); and other sufficient cause, N.J.A.C. 4A:2-2.3(a)(12).

In its specifications for the charges, Kean indicated that on February 6, 2019, "Perez was dispatched to a medical call for a student. After responding to the call, Perez [made] several derogatory and threatening comments laced with profanity regarding the student while speaking to . . . Willix over a recorded police telephone line." Kean further specified that Perez left his duty belt, duty weapon, and police-issued radio unsecured and unattended in a public area. After becoming trapped in a locked bathroom, Perez was freed from the bathroom by other officers, "result[ing] in costly damage to the

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restroom door." Perez then remained in his patrol vehicle from approximately 5:34 a.m. until 7:24 a.m., "socializing for much of that time . . . [and] did not perform any patrol functions between about 4:51 [a.m.] and the end of his shift at 8:00 [a.m.]." "During an Internal Affairs interview conducted on or about March 28, 2019, Officer Perez untruthfully stated that he resumed patrol duties after leaving the Field House."

Perez appealed his removal to the Commission and the Office of Administrative Law (OAL). The appeal was assigned to an Administrative Law Judge (ALJ) as a contested case.

At a prehearing conference held on October 9, 2019, Kean informed Perez and the ALJ that it intended to file a motion for summary decision, and did so on January 23, 2020. Perez opposed the motion.

On April 2, 2020, the ALJ issued a twenty-one page Amended Initial Decision, which granted Kean's motion for summary decision, finding the case was "ripe for summary decision" because the material facts were "clear and undisputed." The ALJ explained:

In this case, no genuine issue as to the material facts exists, and the only question presented is whether Kean sustained its charges, and if sustained, the appropriate discipline. More pointedly, no genuine issue exists that Perez used profanity and made derogatory comments about a student on a recorded police-designated phone line and that he left his service weapon and radio unattended in a public
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location. Further, Perez did not resume vehicle patrol duties away from the fieldhouse following extrication for the conclusion of his shift on February 6, 2019, and was untruthful about "driving off" to resume patrol duties during an internal affairs interview.

The Amended Initial Decision included a detailed recitation of the facts. The ALJ noted that "[t]he material evidence against Perez [was] his admissions supported by inherently credible sources of surveillance video footage, [body-worn camera] footage, a dispatch audio recording, and an internal affairs interview of Perez. Indeed, Perez does not question the credibility of this evidence." The ALJ found that "[n]either Perez nor Graham logged CAD entries of patrol or building checks after Perez's extrication from the restroom." In addition, surveillance cameras showed that Graham and Perez "remained in their cars at the fieldhouse from 5:34 a.m. until 7:25 a.m. Thus, Perez did not check the security of any other building or parking lot for nearly two hours."

The ALJ further found that "[a]t the departmental hearing, . . . Perez apologized for his inappropriate discussion about the student." In his opposing certification, Perez claimed "that following the incident in the bathroom, he felt frightened and desired to be in the presence of other people."

The ALJ found that the evidence established the following facts:
Perez engaged in a series of acts that are incompatible with a high degree of integrity expected
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of all law enforcement officials. Initially, even if patrol duties permit an officer to remain in his vehicle and speak with another officer for an extended period, Perez
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