NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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Although it is posted on the internet, this opinion is binding only on the
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4850-15T2
IN THE MATTER OF TELINA HAIRSTON,
CITY OF EAST ORANGE POLICE DEPARTMENT.
________________________________________
Submitted August 30, 2017 – Decided September 7, 2017
Before Judges Rothstadt and Vernoia.
On appeal from the New Jersey Civil Service
Commission, Docket No. 7114-15.
Weiner Law Group, LLP, attorneys for appellant
City of East Orange Police Department (Mark
A. Tabakin, of counsel; Patricia C. Melia, on
the briefs).
Caruso Smith Picini, PC, attorneys for
respondent Telina Hairston (Timothy R. Smith,
of counsel; Wolodymyr P. Tyshchenko, on the
brief).
Christopher S. Porrino, Attorney General,
attorney for respondent Civil Service
Commission (Pamela N. Ullman, Deputy Attorney
General, on the statement in lieu of brief).
PER CURIAM
The City of East Orange Police Department appeals the Civil
Service Commission's final agency decision reversing the City's
100 calendar day suspension of police officer Telina Hairston.
The Commission adopted an administrative law judge's determination
that a reversal of the suspension was required because the City
failed to file its disciplinary complaint against Hairston within
the forty-five day time period required by N.J.S.A. 40A:14-147.
We vacate the Commission's decision and remand for further
proceedings.
The incident giving rise to the disciplinary action against
Hairston occurred on December 28, 2013, when the police department
experienced a high volume of emergencies and had too few officers
on duty. To address the shortage of officers, Hairston was ordered
to continue working beyond her scheduled 8:00 a.m. to 4:00 p.m.
shift. She refused the order, alleging she could not continue to
work because she was required to attend to her children at her
home. Hairston reported she was sick and left work at
approximately 7:00 p.m.
Later that evening, Hairston went to a birthday party at a
hotel. Other police officers who also attended the party reported
seeing Hairston there to the police department.
The department's Professional Standards Unit conducted an
investigation of Hairston's refusal to comply with the order to
continue working, her claim she could not work because she was
required to care for her children, her report of being sick, and
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her attendance at the party. The Unit issued a May 12, 2014
investigative report to the Chief of Police.
On June 26, 2014, the police department issued a preliminary
notice of disciplinary action (PNDA) charging that on December 28,
2013, Hairston willfully refused a direct order, neglected her
duties, and "reported out of duty due to illness knowing she was
not ill." The PNDA also alleged Hairston violated a March 24,
2014 "Last Chance Agreement" between her and the City, and charged
Hairston with violating department rules, regulations and a
general order. It also cited Hairston for violating N.J.A.C.
4A:2-2.3(a)(12), which permits the imposition of discipline for
"[o]ther sufficient cause." The PNDA advised Hairston that the
City might take action to suspend her for 180 working days or
remove her from her position.
Hairston filed a motion with the Commission requesting
dismissal of the portion of the PNDA charging her with violating
the Last Chance Agreement. In a December 19, 2014 decision and
order, the Commission granted Hairston's motion and directed the
City "to amend the [June 26, 2014] PNDA and delete any reference
to the 'Last Chance Agreement.'"
In accordance with the Commission's order, on January 8,
2015, the City filed an amended PNDA, deleting only the charge
alleging a violation of the Last Chance Agreement, and reducing
3 A-4850-15T2
the potential suspension period from 180 to 100 days. The amended
PNDA otherwise asserted charges identical to those in the original
June 26, 2014 PNDA.
A City hearing officer sustained the charges and determined
Hairston should be suspended for 100 days. The City subsequently
issued a final notice of disciplinary action implementing the 100-
day suspension. Hairston appealed to the Commission.
Following an evidentiary hearing, an administrative law judge
issued a written initial decision reversing the 100-day
suspension. The judge found Hairston was insubordinate by failing
to comply with a direct order to continue working, committed
neglect of duty by invoking sick leave when she was not ill, and
violated the department's rules and regulations prohibiting
malingering by feigning illness to avoid performing her duties.
The judge also found Hairston violated the City's sick leave
policy.
Nevertheless, the judge dismissed the charges against
Hairston, finding the City failed to file the charges within the
forty-five day period required under N.J.S.A. 40A:14-147. Noting
the statute requires that charges be filed within forty-five days
of the time the department "obtain[s] sufficient information to
file the matter upon which the complaint if based," N.J.S.A.
40A:14-147, the judge observed that the Professional Services Unit
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investigation report was completed on May 12, 2014, and found the
charges were not filed until January 2015. The judge dismissed
the charges, finding they were not filed within the statute's
forty-five day deadline, and entered an order reversing the 100-
day suspension.
The City filed exceptions to the judge's initial decision and
order with the Commission,1 but the Commission never directly
considered them. A lack of a quorum caused multiple adjournments,
but the Commission ultimately adopted by default the judge's
initial decision as its final agency decision in accordance with
N.J.S.A. 52:14B-10(c), and awarded Hairston counsel fees pursuant
to N.J.A.C. 4A:2-2.12. This appeal followed.
Our review of an agency's decision is limited. In re
Stallworth, 208 N.J. 182, 194 (2011). We "afford[] a 'strong
presumption of reasonableness' to an administrative agency's
exercise of its statutorily delegated responsibilities." Lavezzi
v. State, 219 N.J. 163, 171 (2014) (quoting City of Newark v. Nat.
Res. Council, Dep't of Envtl. Prot., 82 N.J. 530, 539, cert.
denied, 449 U.S. 983, 101 S. Ct. 400, 66 L. Ed. 2d 245 (1980)).
A reviewing court "should not disturb an administrative agency's
1
Hairston did not file any exceptions to the judge's findings
that she committed the offenses charged in the final notice of
disciplinary action.
5 A-4850-15T2
determinations or findings unless there is a clear showing that
(1) the agency did not follow the law; (2) the decision was
arbitrary, capricious, or unreasonable; or (3) the decision was
not supported by substantial evidence." In re Virtua-West Jersey
Hosp. Voorhees for a Certificate of Need, 194 N.J. 413, 422 (2008).
The party challenging the agency's action has the burden of proving
that the action was arbitrary, capricious, or unreasonable.
Lavezzi, supra, 219 N.J. at 171.
Here, the Commission's determination that the charges were
filed beyond the time permitted by N.J.S.A. 40A:14-147 was based
on the erroneous finding that the charges were first filed on
January 8, 2015. That was simply not the case. The record
establishes the charges were first filed on June 26, 2014.2
Indeed, Hairston filed a motion challenging the inclusion of the
Last Chance Agreement charge in the June 26, 2014 PNDA, and the
Commission, in its December 19, 2014 decision on the motion, found
the charges were first filed on June 26, 2014. Of course, Hairston
could not have filed a motion in 2014 challenging charges that had
not yet been filed, and the Commission could not have issued a
decision in December 2014 concerning charges that were first filed
one month later in January 2015. Nor could the Commission have
2
Hairston does not dispute that the original charges were first
filed on June 26, 2014.
6 A-4850-15T2
directed in December 2014 that the City amend charges that had not
been previously filed.
The Commission's dismissal of the charges based on the finding
they were first filed in January 2015 is not supported by the
record and, for the reasons stated, contradicts the Commission's
prior factual findings and decision. The Commission therefore
erred in concluding the charges were time-barred under N.J.S.A.
40A:14-147.
Hairston contends the Commission's determination was proper
because the City failed to introduce the June 26, 2014 PNDA into
evidence. She argues that because only the January 2015 PNDA was
introduced into evidence, the record supports the Commission's
determination that the charges were first filed in 2015. We are
not persuaded. Hairston ignores that she filed a motion in 2014
challenging the charges contained in the June 26, 2014 PNDA and,
as such, is fully aware the original charges were filed on June
26, 2014.
Moreover, there was no requirement that the June 26, 2014
PNDA be introduced into evidence. The Commission had already
determined in its December 19, 2014 decision and order that the
charges were first filed on June 26, 2014. We are satisfied the
administrative law judge and Commission erred by ignoring the
Commission's prior determination that the charges were filed on
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June 26, 2014, and finding the charges were time-barred under
N.J.S.A. 40A:14-147.
We do not, however, reverse the Commission's final agency
decision. Hairston's challenge to the timeliness of the charges
requires a determination as to when the department obtained
sufficient information to file the June 26, 2014 PNDA. See N.J.S.A.
40A:14-147; Grubb v. Borough of Hightstown, 331 N.J. Super. 398,
405 (Law Div. 2000) (holding that "a violation of the internal
rules and regulations established for the conduct of a law
enforcement unit," N.J.S.A. 40A:14-147, must be filed within
forty-five days "after the date on which the department obtain[ed]
'sufficient information' to file the complaint"), aff'd, 353 N.J.
Super. 333 (App. Div. 2002). Although the Commission erred in
finding the charges were first filed in January 2015 and
incorrectly dismissed the charges on that basis, the record is
inadequate to permit a determination as to whether the charges
were otherwise timely filed under N.J.S.A. 40A:14-147.
The City contends that sufficient information to file the
PNDA was first supplied with the Professional Standards Unit's May
12, 2014 report. Hairston argues the City had sufficient
information prior to the issuance of the report. The disagreement
presents factual disputes that must be decided in the first
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instance by the Commission after the development of an evidentiary
record.
The City correctly states that the forty-five day deadline
applies only to charges alleging violations of the department's
"internal rules and regulations." N.J.S.A. 40A:14-147. The PNDA
alleges violations of the department's rules and regulations, but
also charges there is "other sufficient cause" for the imposition
of discipline. See N.J.A.C. 4A:2-2.3(a)(12). We agree the
separate charge alleging "other sufficient cause" for the
imposition of discipline is not subject to the time-bar under
N.J.S.A. 40A:14-147. The Commission erred in finding otherwise.
We also observe that neither the administrative law judge nor the
Commission made a separate determination on that charge. On
remand, they shall do so.
We are therefore constrained to vacate the final agency
decision in its entirety and remand for a determination as to
whether those portions of the June 26, 2014 charges (as amended
in January 2015), alleging a violation of the department's rules
and regulations were timely under N.J.S.A. 40A:14-147. The
Commission shall also determine and make findings as to whether
the department proved there was "other sufficient cause" for the
imposition of discipline. If it is determined that the rules and
regulations charges were timely, or that there was other sufficient
9 A-4850-15T2
cause for the imposition of discipline, the Commission shall
determine if the discipline imposed was appropriate. Any
determination by the Commission on an award of attorney's fees
shall abide its decisions on the other issues on remand.
We vacate the final agency decision and remand for further
proceedings consistent with this opinion. We do not retain
jurisdiction.
10 A-4850-15T2
IN THE MATTER OF TELINA HAIRSTON, CITY OF EAST ORANGE Â POLICE DEPARTMENT(CIVIL SERVICE COMMISSION)
Combined Opinion