O'Rourke v. City of Lambertville

Decision Date31 October 2008
Docket NumberNo. A-0481-07T3,A-0481-07T3
Citation405 N.J. Super. 8,963 A.2d 339
PartiesMichael O'ROURKE, Plaintiff-Respondent, v. CITY OF LAMBERTVILLE, a Municipal Corporation of the State of New Jersey; David Delvecchio, Mayor of the City of Lambertville; Steven Stegman, Council President of the City Council of the City of Lambertville; Cynthia Ege, Council Person, City of Lambertville; Ronald Pittore, Councilman, City of Lambertville; Frank Kramer, Councilman, City of Lambertville; and Bruce Cocuzza, Police Director, City of Lambertville, Defendants-Appellants.
CourtNew Jersey Superior Court

Policemen's Benevolent Association (Zazzali, Fagella, Nowak, Kleinbaum & Friedman, attorneys; Mr. Kleinbaum, of counsel and on the brief).

Before Judges WEFING, PARKER and YANNOTTI.

The opinion of the court was delivered by

YANNOTTI, J.A.D.

Defendants appeal from a final judgment entered by the trial court on August 20, 2007, which reversed a decision by the City Council of the City of Lambertville removing plaintiff from his position as a police officer and ordered plaintiff's reinstatement. Defendants also appeal from an order entered on September 20, 2007, which denied their motion for reconsideration and awarded plaintiff attorneys' fees. For the reasons that follow, we affirm.

I.

The City's police department has ten full-time officers and five to six civilian employees. Bruce Cocuzza is the City's civilian Police Director, with administrative responsibility for the day-to-day operations of the department. Plaintiff was a sergeant first class and, as such, he was the department's highest ranking officer. Since 2001, plaintiff served as the department's Terminal Agency Coordinator (TAC) for the National Crime Information Center (NCIC) system, which is maintained by the Federal Bureau of Investigation and contains a wide array of law enforcement information.

On September 29, 2006, the City filed a preliminary notice of disciplinary action against plaintiff, charging him with: 1) conducting unauthorized and improper employee background investigations using the NCIC computer terminal, in defiance of a direct order by Cocuzza that no such investigations would be undertaken without his approval; 2) committing an act of insubordination by directing another officer to disregard Cocuzza's instructions regarding "a major incident;" 3) engaging in conduct subversive to the good order and discipline of the department by conducting the aforementioned background checks without the consent of the affected employees; 4) violating the department's policies and procedures governing background investigations; 5) neglect of duty for failing to ensure that an NCIC terminal operator had been "properly screened prior to being granted access to the system;" 6) failing to forward a serious complaint to the Internal Affairs Unit; and 7) engaging in conduct unbecoming a public employee. The notice indicated that plaintiff could be removed for, among other things, neglect of duty, insubordination, or willful violation of the department's rules and regulations. With the Mayor presiding, the Council conducted evidentiary hearings on the charges on January 9, 2007, February 13, 2007, and March 6, 2007.

Cocuzza testified that, in August 2006, he had a conversation with plaintiff regarding background checks for civilian employees. They discussed the transfer of an employee from City Hall to the department, on a temporary, part-time basis. According to Cocuzza, plaintiff told him that the employee would have to have a background check or be fingerprinted for security purposes. Plaintiff also told Cocuzza that all civilian employees had to be fingerprinted.

Cocuzza additionally testified that he told plaintiff that "no action" would be taken until Cocuzza received "direct written authorization from the control unit or somebody in authority," and he spoke "with the City Attorney to make sure" such action was appropriate. Cocuzza noted that some of the employees that they were discussing were tenured employees, who had "between two and fifteen years of service."

Cocuzza also stated that he was concerned about the legality of any background checks of employees in good standing. Cocuzza said that he

would have ensured that once it was determined that there was a need, and really, we are only talking about fingerprinting, I grant you that, because that would have been the only thing needed to do to get the criminal history check, but it certainly required written consent from these people. That is something that the State Police standard requires as well. Now, to do otherwise is just certainly not appropriate.

Cocuzza further testified that the department has an established policy regarding background checks. According to Cocuzza, such checks are required for all employees appointed to the department. Cocuzza said that, when a person applies for appointment to the department, the individual is required to sign a release that allows the department to follow-up on all information developed in the background investigation. The applicant is fingerprinted and is informed that the background investigation results will remain confidential.

Cocuzza stated that, on August 25, 2006, he learned that plaintiff had performed background investigations of five civilian employees of the department, including himself. Cocuzza said that plaintiff had not received written authorization from anyone for these investigations. Cocuzza stated that plaintiff's actions contravened his "direct order."

Cocuzza also testified that, when he learned about the background checks, he directed plaintiff to submit a written report stating the authority upon which he acted. In his report, plaintiff asserted that he performed the checks under his authority as TAC officer. Plaintiff did not mention whether he had conferred with anyone in the State Police about the background checks.

Cocuzza initiated an investigation of plaintiff. He approached Sergeant Jeffrey Jones, the officer who was assigned to the department's Internal Affairs Unit, but Jones said he was uncomfortable undertaking the investigation because he had known plaintiff socially for seventeen or eighteen years. Jones suggested that the Prosecutor's Office conduct the investigation; however, Cocuzza decided to conduct the investigation himself.

In his investigative report, which is dated September 29, 2006, Cocuzza stated that, after plaintiff made a comment about fingerprinting civilian employees of the department, he told plaintiff "that such action" would not be taken without written direction from someone in authority, as well as guidance from the City's Attorney. Cocuzza wrote that plaintiff had been insubordinate and his actions constituted, among other things, a serious breach of discipline, a flagrant abuse of authority, and conduct unbecoming a public employee.

Cocuzza added that plaintiff's "misconduct" was "particularly egregious." He stated that plaintiff's actions were a "concerted effort on his part to exert his will and authority" over Cocuzza's authority, "with the ultimate goal being to achieve de facto leadership of the department; a virtual coup of sorts." Cocuzza wrote that plaintiff's behavior was "extremely malignant to a para-military organization such as a police department."

Cocuzza's secretary, Sally Lelie, testified that she was present when Cocuzza and plaintiff discussed the fingerprinting and background checks of the department's civilian employees. Lelie stated that the conversation began when someone mentioned that one of the City's employees was going to be re-assigned to the department, and plaintiff mentioned fingerprinting and doing criminal histories and background checks of the employees. Lelie testified that Cocuzza told plaintiff that he should get "proper documentation from the State Police," and Cocuzza would review the matter with the City Attorney to ensure that the investigations were lawful.

Lelie additionally testified that she reported to work on August 25, 2006. Cocuzza had taken vacation leave that day. She noticed a report that plaintiff had prepared concerning background checks on employees. Lelie recalled Cocuzza's directive. Lelie spoke to Cocuzza that day on another matter and, during the conversation, she mentioned plaintiff's report. Lelie stated that plaintiff had performed a background check on her without her authorization. Lelie said that she felt "[u]pset, angry, hurt, [and] betrayed" by plaintiff's actions.

Plaintiff testified that, as TAC officer, he is responsible for overseeing the operation of the NCIC terminal. He stated that a person with a felony conviction is not permitted to have "access" to the terminal. Plaintiff asserted that an individual would have to be fingerprinted before being authorized to "log on" to the NCIC terminal.

Plaintiff further testified that, on either August 10th or 11th, he had a conversation with Cocuzza and Lelie. They were discussing the transfer of one of the City's employees from City Hall to the police department. Plaintiff told Cocuzza that a background check of the employee would have to be done. Cocuzza said that, if a background check was performed on the new worker, she might think that she was being singled out. According to plaintiff, Lelie stated that the department should do background checks of all of its civilian employees. Plaintiff said that he agreed.

Cocuzza asked plaintiff whether the department's policy on background investigations applied to its civilian...

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6 cases
  • Defalco v. Rutgers Univ. Police Dep't, Civil Action No. 15-6607 (MAS) (LHG)
    • United States
    • U.S. District Court — District of New Jersey
    • March 10, 2017
    ...with the IAPP guidelines, however, does not result in a denial of an officer's due process rights. O'Rourke v. City of Lambertville, 405 N.J. Super. 8, 18-19 (App. Div. 2008). Therefore, even if Rutgers and RUPD were required to have a policy consistent with the IAPP in effect at the time o......
  • In re Griffin
    • United States
    • New Jersey Superior Court — Appellate Division
    • January 18, 2024
    ...although insufficient to constitute a denial of procedural due process, may nevertheless require an employee be reinstated. See O'Rourke, 405 N.J.Super. at 18. In O'Rourke, the City adopted policies related to internal investigations pursuant to AG guidelines and N.J.S.A. 40A:14-181, which ......
  • S.B. v. State
    • United States
    • New Jersey Superior Court — Appellate Division
    • April 12, 2019
    ...status." Further, S.B. does not challenge the validity of the CNA. 3. S.B. references our decision in O'Rourke v. City of Lambertville, 405 N.J. Super. 8 (App. Div. 2008), in which we held that "when a law enforcement agency adopts rules pursuant to N.J.S.A. 40A:14-181 to implement the Atto......
  • In re Torsiello
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    • June 21, 2018
    ...in the disciplinary process, no matter how serious, can be cured by a subsequent evidentiary hearing." O'Rourke v. City of Lambertville, 405 N.J. Super. 8, 22 (App. Div. 2008) (finding an unauthorized, biased investigation was not cured in a hearing). However, as in Ensslin, the procedural ......
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