Morrison, Matter of

• Decision Date: 20 March 1987
• Parties: In the Matter of Raymond MORRISON, Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 143

216 N.J.Super. 143

523 A.2d 238

In the Matter of Raymond MORRISON, Appellant.

Superior Court of New Jersey,

Appellate Division.

Submitted Jan. 12, 1987.

Decided March 20, 1987.

Charles J. Sprigman, Jr., Woodbury, for appellant.

Basile, Testa & Testa, Vineland, for respondent, City of Bridgeton (Michael L. Testa, on the brief).

W. Cary Edwards, Atty. Gen., for respondent, Civil Service Com'n (James J. Ciancia, Asst. Atty. Gen., of counsel, Lewis A. Scheindlin, Deputy Atty. Gen., on the brief).

Before Judges PETRELLA, BILDER and SCALERA.

The opinion of the court was delivered by

SCALERA, J.A.D.

Raymond Morrison appeals from a final order of the Civil Service Commission terminating his position as a police officer for the City of Bridgeton after 17 years of service. We affirm.

On June 7, 1985 Bridgeton served Morrison with a Preliminary Notice of Disciplinary Action for charges arising out of an incident which occurred on May 26, 1985. Bridgeton sought Morrison's removal from the police department on the grounds of insubordination, unlawful arrest, unlawful search and seizure and failure to notify the desk officer of his location while out of his police car. A departmental hearing on these charges was held before Donald G. Maurer, ¹ the Director of Police and Fire. Morrison was found guilty of all charges and a Final Notice of Disciplinary Action was issued dismissing him from employment. Morrison appealed to the Civil Service Commission and a de novo hearing was held before Administrative Law Judge (ALJ) Robert Scott. The ALJ issued his initial decision in which he found Morrison guilty of all charges but recommended that the penalty be modified from termination to a six months suspension.

Both Morrison and Bridgeton filed written exceptions to the ALJ's decision with the Commission. On April 3, 1986 the Commission issued a final decision indicating that it had "...considered the record and the Administrative Law Judge's initial decision, and having made an independent evaluation of the record ... [it] accepted and adopted the Findings of Fact as contained ..." therein but did not accept the ALJ's recommendation concerning the penalty. Rather, the Commission affirmed Bridgeton's removal of Morrison from office in view "of the seriousness of the instant charges, and taking into consideration [his] prior disciplinary record."

In May 1984, the Chief of Police circulated a memo to all sergeants in the Bridgeton Police Department concerning the serving of arrest warrants:

ATTENTION ALL SERGEANTS:

Minor Warrants, such as parking, motor vehicle, failure to pay, etc., are to be served at a reasonable hour. This is not to occur on the 11-7 shift, unless the subject sought in the warrant is found at a public place, restaurant, etc.

On May 26, 1985 Morrison was working the 11:00 p.m. to 7:00 a.m. shift. He reported to work that evening and picked up a warrant, issued originally in December 1984, for one Monica Robinson. While the outside of the warrant indicated that it was for a "contempt of court" violation, the body of the warrant indicated that it was for failure to appear to pay a fine for violation of a dog ordinance. At the hearing before the ALJ Morrison testified that at approximately 11:30 that evening he drove by Monica Robinson's house in order to serve the warrant but noticed that her car was not there. About an hour later he again drove by and when he noticed that her car was there, he got out of the police car and knocked on the side door. When no one answered, he left. At approximately 5:45 a.m. he returned a third time and, without notifying headquarters that he was leaving his car, knocked on the side door. There was no response so he knocked on the front door. Morrison stated that "it came wide open" so he called out to see if anyone was at home. When no one answered he proceeded up the stairs, and knocked on a bedroom door. Someone inside asked, "who is out there?" and Morrison identified himself as a police officer. Mr. Robinson answered the door and Morrison informed him that he had an arrest warrant for his daughter, Monica. Monica then came out of her bedroom, got dressed and drove her car to the police station where she paid the $50 fine underlying the issuance of the warrant.

The Robinsons, however, gave a different version of what had happened. Mrs. Robinson testified that she and her husband were awakened early that morning by Morrison knocking at their bedroom door. After Morrison identified himself, and asked where Monica was, they all went downstairs. Morrison explained that he thought that their home had been broken into and so he "jimmied the [front] door and it came open." Mrs. Robinson also testified that the events that night had caused her to have a nervous breakdown. Mr. Robinson similarly testified that before he went to bed that evening he checked all the doors to the house. At approximately 5:00 a.m. he and his wife were awakened by Morrison knocking on their bedroom door. After he answered the door, they all went downstairs. Morrison then indicated to them that he had "sh[aken] or jimmied or jerked" the front door in order to get into the house. Mr. Robinson inspected the door after the incident, but he said he found no marks on it.

Police Sergeant David McGuigan testified that he had investigated the incident. Morrison informed him that he had suspected that a burglary or assault, or possibly even a murder, had been committed at the Robinson's home that evening and also admitted that he had not informed the desk officer that he was leaving his patrol car. While this violated departmental policy, McGuigan stated that the decision whether or not to call in to the dispatcher was basically a judgment call. He conceded that officers generally do not radio in every time they get out of their vehicles, but emphasized the need to do so when the officer suspects that a serious crime has been committed as opposed to a situation involving an insignificant non-police related matter.

Officer Leo Rock, the radio dispatcher, testified that the only communication received from Morrison that evening was when he reported that he had arrested Monica Robinson and was bringing her in to the station. During his 16 year tenure he was not aware of anyone being brought up on charges of failure to notify the desk officer while out of car. He also indicated that most officers do not radio in every time they get out of their car.

Morrison testified that he considered the contempt warrant which he had served that night to be a "major" violation. In support of this position he related a conversation that he had had with Judge Kotok of the local municipal court concerning outstanding warrants. He testified that the judge had told him that contempt of court was a "major violation." However, Judge Kotok testified that when Morrison had asked him whether he considered some types of warrants more important than others he had expressed the opinion that he considered a failure to appear warrant for a minor violation, "at the bottom of the list."

Morrison had a history of departmental infractions since the commencement of his employment as a Bridgeton policeman on September 9, 1968. In April 1971 he was suspended for five days for chronic absenteeism; in March 1978 he was suspended for ten days after being found guilty on a charge of larceny and a few months later was suspended for five more days and lost five vacation days for neglect of duty; in January 1980 he was suspended for ten days after being found guilty on two counts of insubordination. Less than two years later he was brought up on charges of leaving his assigned patrol area, of failing to report when leaving his assigned patrol area and of "soliciting and petitioning for change of assignment in an attempt to promote political influence to bring about the change of assignment." He was found guilty of all three charges and suspended for 30 days and also lost 20 vacation days.

Lastly, Donald E. Maurer, the Police Director, testified that in 1980 or 1981 Morrison had arrested his son and shortly afterwards was brought up on unrelated disciplinary charges. As a result, Maurer had recused himself as the hearing officer in that matter because he felt he might be prejudiced.

Defendant appeals the Commission's decision contending that,

Point I The hearing at the local level was unfairly biased and voids the entire proceeding.

Point II The Civil Service rejected the recommendations of the Administrative Law Judge without having before it any transcript of the hearing below, thus voiding that rejection.

Point III The penalty assessed by the Civil Service Commission is arbitrary, capricious, excessive, unreasonable and without basis.

Point IV If the court will not void the entire proceedings on bias, appellant should be reinstated with back pay, counsel fees, and all benefits as of six months from the date of original removal.

Morrison initially argues that the entire proceedings are void ab initio because the hearing officer at the original departmental hearing, Donald Maurer, was prejudiced toward him and should have recused himself. Bridgeton points out that the proceeding before the ALJ was a hearing de novo, and that appellant thus had "a hearing in this matter by an unbiased individual" which precludes any review of the original departmental hearing. We agree.

N.J.S.A. 11:15-4 authorizes the Commission to inquire into the removal of a civil service employee by an appointing authority. Such inquiry is conducted through a hearing de novo. See id., N.J.S.A. 11:15-6; Ciff v. Morris County Board of Social Services, 197 N.J.Super. 307, 315, 484 A.2d 1275 (App.Div.1984), rev'd on other grounds 101 N.J. 251, 501 A.2d 923 (1985); Borough of East Paterson v. Dept. of Civil Service, 47 N.J.Super. 55, 64, 135 A.2d 213 (App.Div.1957). The inquiry or hearing is for "the purpose of fairly determining whether the employee involved,...