New Jersey Employment Law Decision Examines Rights of Police Officers Facing Discipline in Non-Civil Service Jurisdictions

An appeals court recently issued an opinion in the case of Hand v. Borough of New Providence, examining the rights of New Jersey police officers facing discipline in non-civil service jurisdictions

 

Background

The opinion explained that Michael Hand was a corporal with the New Providence Police Department, with thirteen years of service.  On May 17, 2019, he was eating dinner with his wife at a diner during a meal break when a call came for him to respond to a domestic incident.  Another officer, Patrolman Lunch responded.  Plaintiff texted Lynch and his supervisor to see if they needed him but they did not respond, so he did not go.  The supervisor, Sergeant Diamond, who was not called, terminated a traffic stop to respond when he saw on GPS that Hand was not responding.  At the scene, a juvenile experienced a mental health crisis and the situation escalated; Diamond called Hand on the radio and Hand then responded 13 minutes after the original call.

Thereafter Sergeant Diamond filed an internal affairs complaint against Hand.  The investigating officer found that Hand had violated Department regulations and recommended a 20 day suspension.  The hearing was scheduled for December 16^th.  Prior to the hearing, Plaintiff communicated repeatedly with Lynch by text, phone and in person about his upcoming testimony.  A subsequent Internal Affairs investigation was initiated about the communications.  The investigating officer concluded that the contacts constituted criminal attempt to influence witness testimony and referred the matter to the Union County Prosecutor’s Office.   The Prosecutor’s Office declined to prosecute, but advised that “it was a close call.”

Hand was charged with violating Department rules and regulations, including police officer conduct, standard of conduct, conduct unbecoming a public employee and witness tampering.  The investigating officer recommended a 6 month suspension.  However, after two days of hearings, the Department terminated Hand’s employment.  In deciding on termination, the Department was strongly influenced by the fact that Hand’s actions could be “Brady/Giglio” matters, which would mean that Hand could no longer testify in criminal matters, thus limiting his usefulness to the Department, despite his otherwise clean disciplinary record.

 

Appeal to the Superior Court

Because New Providence is a non-civil service jurisdiction, Hand’s avenue for relief was an appeal to the Superior Court of New Jersey.  He argued that his termination was not for just cause, thus violating the statute which governs discipline of non-civil service law enforcement officers, and violated his due process rights.  He also argued that even if he was guilty, termination was too severe a penalty under the doctrine of progressive discipline.  However, after holding a hearing, the Superior Court judge rejected Hand’s arguments and affirmed his termination.

Hand then appealed to the Appellate Division of the Superior Court of New Jersey.

 

The Appellate Division’s Ruling

The Appellate Division likewise rejected Hand’s arguments.

In its opinion, the Appellate Division found that the trial judge’s finding that Hand violated Department regulations was well-supported by the evidence.  It explained that a police officer’s attempt to undermine witness testimony is clearly misconduct, and was essentially witness tampering, thus providing just cause for termination.  Moreover, the Appellate Division agreed with the lower court judge that as an experienced police officer Hand had to be aware that his repeated attempts to persuade Officer Lynch to testify favorably to him was misconduct, and indeed witness tampering.  Moreover, the Appellate Division rejected the argument that his termination violated his right to due process – it explained that the due process procedures were set out in the governing statute and were correctly followed.

The Court also rejected Hand’s claim that even if he was guilty he should have received a lesser penalty under the doctrine of progressive discipline.  The court explained that even though progressive discipline applied to non-civil service officers, it only goes so far.  When a first offense is sufficiently egregious it will support the ultimate sanction of termination.  Here, an experienced officer should have known that attempt to influence witness testimony was not just improper but also illegal, thus compounding the gravity of the offense.

The Court also explained that police officers are held to a higher standard.

In considering whether the imposed penalty is appropriate, we note police officers are constantly called upon to exercise tact, restraint and good judgment in their relationship with the public and must present an image of personal integrity and dependability in order to have the respect of the public. Police officers are held to a higher standard as one of the obligations they undertake upon voluntary entry into the public service.

 

The Takeaways

Even law enforcement officers in non-civil service jurisdictions have due process rights when facing discipline, and can only be terminated or disciplined for cause, after notice and a hearing, and have full rights to appeal.  However, because law enforcement officers are given authority far beyond that of the ordinary citizen to enforce the law, they are held to a higher standard regarding compliance with those laws.

Likewise, progressive discipline applies even in non-civil service jurisdictions.  However, where a first offense is so egregious – such as witness tampering by a police officer – it will not prevent the ultimate sanction of termination even for a first offense.

 

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Our New Jersey employment attorneys represent government employees, including law enforcement officers, in both civil service and non-civil service jurisdictions.  Call us at (973) 890-0004 or fill out the contact form on this page to schedule a consultation with one of our New Jersey labor lawyers.  We can help.