Appellate Division Examines Process for Non-Civil Service New Jersey Police Officers to Challenge Discipline, But Reminds Us the Burden of Proof is on the Officer
Government employees receive significant due process rights to challenge employer discipline which private sector employees and employees in non-civil service jurisdictions do not enjoy. However, because New Jersey employment law recognizes the great responsibility placed on law enforcement officers, the Legislature has enacted robust procedures for police officers not covered by civil service to appeal discipline to the Superior Court. Nonetheless, in the case of Miller vs. Borough of Berlin Police, the Appellate Division reminds us that the burden of proof remains on the officer and evidence is king.
Jason Miller was a police officer with the Borough of Berlin Police Department, a non-civil service jurisdiction. He was dispatched to a banquet hall because of a report of the theft of a purse. Surveillance video showed an employee taking the purse, the manager gave Officer Miller the employee’s name and address, and Miller took a victim statement. Miller told the victim that the employee was clearly identifiable and would be charged with a crime (as the victim told him she wished), and that the case was a “slam dunk.” However, Miller did not follow up or press charges, and stated in the incident report that the victim did not wish to pursue criminal charges. Several days later the victim called the Department to follow up. Another officer took the call, and eventually other officers arrested the employee, who confessed.
The Department charged Miller with disciplinary violations of untruthful statements in a police report and to his fellow officers, the victim and supervisors; mishandling evidence; violation of department regulations; neglect of duty; conduct unbecoming a police officer; cowardice; misconduct; and disobeying orders. The Department sought his termination. A departmental hearing was heard over two days. The hearing officer was a retired Superior Court judge. Miller, the victim and several other officers testified. In an extensive decision, the hearing officer found that Miller made intentionally false statements, failed to discharge his duty as an officer, and engaged in misconduct. He recommended that Officer Miller be terminated. The Department adopted the hearing officer’s findings and terminated Miller’s employment.
Thereafter, Miller filed a complaint in lieu of prerogative writs in the Law Division of the Superior Court of New Jersey pursuant to the statutory provisions affording non-civil service police officers appeal rights. The trial judge in the Superior Court allowed discovery, and then heard the arguments of counsel and reviewed the exhibits submitted. She sustained the charges and Miller’s termination, relying on her own review of the transcripts and record, and the credibility determinations made by the hearing officer. Given “the magnitude of [Miller’s] acts of neglect and untruthfulness, his prior disciplinary and the preservation of the public trust,” she found that termination was appropriate.
Miller appealed to the Appellate Division of the Superior Court. The Appellate Division rejected Miller’s arguments and upheld the trial judge’s decision.
First, the Court explained that under the de novo review standard under which a trial court reviews officer discipline, the trial judge needs to make her own findings of fact, as this judge properly did. However, because the review is of the record rather than with live witnesses, it was appropriate for the judge to place some reliance on the credibility evaluations of the hearing officer. It found that here her decision was supported by substantial credible evidence. Second, the Appellate Division rejected Officer Miller’s argument that progressive discipline should have been applied. It noted that police officers are held to a higher standard. Given the seriousness of Miller’s untruthfulness, neglect and misconduct, termination would have been appropriate even were this a first offense.
The Appellate Division therefore upheld Miller’s termination.
There is a process through which police officers can challenge discipline even if they are not covered by civil service. The process is meaningful and robust; it can and very often does correct errors made at the employer level, and even when it sustains the findings it can reduce the penalty. This is a right which private sector employees and non-law enforcement government employees not covered by civil service do not enjoy.
However, at the end of the day, the burden of proof is still on the officer challenging discipline or seeking a lesser penalty under progressive discipline. While New Jersey employment law offers non-civil service law enforcement officers a meaningful appeals process, evidence is still king.
Our New Jersey employment attorneys represent government employees in civil service and non-civil service jurisdictions, including helping New Jersey law enforcement officers challenge wrongful discipline. Call us at (973) 890-0004 or email us to set up an appointment with one of our employment lawyers. We can help.