KYHEEM DAVIS VS. TOWNSHIP OF NEPTUNE (L-3221-15, MONMOUTH COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3936-16T3

KYHEEM DAVIS,

Plaintiff-Respondent/
Cross-Appellant,

v.

TOWNSHIP OF NEPTUNE,

Defendant-Appellant/
Cross-Respondent.
_______________________________

Argued October 10, 2018 – Decided January 16, 2019

Before Judges Yannotti, Gilson and Natali.

On appeal from Superior Court of New Jersey, Law
Division, Monmouth County, Docket No. L-3221-15.

Jonathan F. Cohen argued the cause for appellant/cross-
respondent (Plosia Cohen LLC, attorneys; Jonathan F.
Cohen, of counsel and on the briefs).

Marcia J. Mitolo argued the cause for respondent/cross-
appellant (Limsky Mitolo, attorneys; Marcia J. Mitolo,
of counsel and on the briefs).

PER CURIAM
 Defendant Township of Neptune (Township) appeals from a January 26,

2017 Law Division order setting aside a ninety-day suspension imposed upon

plaintiff Kyheem Davis, a Township police officer, and a May 12, 2017 order

which denied its motion for reconsideration.1 Plaintiff cross-appeals from the

court's May 12, 2017 order denying his application for back pay and attorney's

fees. We reverse those portions of the January 26, 2017 and May 12, 2017 orders

related to plaintiff's suspension, reinstate the hearing officer's decision to

suspend plaintiff for ninety days without pay, and dismiss the cross appeals.

I.

We briefly summarize the relevant facts and procedural history. Since

November 2000, plaintiff has been employed by the Neptune Township Police

Department (Department) as a police officer. On February 6, 2015, the

Department charged Davis with violating three Department Rules and

Regulations related to his response to a December 14, 2014 fatal motor vehicle

accident. Specifically, the Department alleged plaintiff violated Rule 3.1.1,

1
The January 26, 2017 order also upheld plaintiff's three-day suspension related
to a March 30, 2015 incident when he lost a suspect's iPhone during the course
of an arrest. Plaintiff has not appealed his suspension related to the March 30,
2015 incident.

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"Performance of Duty"; Rule 3:7.10, "Relief"; and Rule 3:9.10, "Operation of

Departmental Vehicles." 2 The Department maintained that plaintiff failed to

"operate [his] assigned patrol vehicle in a safe manner and in conformity with

State law and departmental written directives," neglected to "complete a

thorough [d]aily [a]ctivity [l]edger to include all necessary information ," and

did not remain in his assigned patrol zone.

The Department initially sought a fifteen-day suspension. Plaintiff

rejected that proposed penalty and pleaded not guilty to the charges. On May 1,

2015, a disciplinary hearing was conducted.

Plaintiff testified that on December 14, 2014, he was on duty and assigned

to patrol zone six3 from 7 a.m. to 3 p.m. He stated that he agreed to pick up

2
Rule 3.1.1 requires all police officers to "promptly perform their duties as
required or directed by law, rules and regulations or written discovery, or by
lawful order of a superior officer." Rule 3.9.10 provides that
when "operating department vehicles, employees shall not violate traffic laws,
except in cases of emergency and then only in conformity with state law and
department written directive . . . ." Rule 3:7.10 mandates that all officers
"remain at their assignments and on duty until properly relieved by other
employees or until dismissed by competent authority."
3
The Department divided the Township into six zones. Officers are assigned
to specific zones to ensure they are in close proximity to any incident within the
Township.

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breakfast for Sergeant Gonzalez and another officer from Carmela's Restaurant,

located in zone five, which is adjacent to zone six.

At approximately 8:28 a.m., plaintiff received a call from a dispatcher

informing him of an emergency motor vehicle accident on Route 66, which is

within zone six. Patrol Officer John Jackson arrived at the scene and requested

assistance. Plaintiff was not informed at this time that the accident involved a

fatality. He responded at approximately 8:30 a.m. that he was on his way.

Footage from the mobile video recorder (MVR)4 in plaintiff's patrol car showed

him leaving his residence, located in zone two, at approximately 8:29 a.m.

According to the radio log, which lists all dispatcher and officer transmissions,

and as corroborated by his MVR footage, one minute and fifty-four seconds

passed between plaintiff responding to the dispatcher's call and when he

activated his emergency lights.

It took plaintiff three minutes and fifty-five seconds to reach the accident

scene. While en route, plaintiff drove at highly accelerated speeds, reaching 131

miles per hour (m.p.h.) at one point. Despite traveling in this manner, plaintiff

was the third officer to arrive.

4
All Department police vehicles are equipped with a MVR. The MVR starts
when an officer activates the vehicle's emergency lights and begins recording
thirty-seconds prior to activation.
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 Plaintiff testified that after he picked up breakfast, he noticed the

restaurant failed to provide him with a spoon. As his home was between

Carmela's Restaurant and police headquarters, he decided to stop at his house to

retrieve a spoon. Plaintiff stated that he received the emergency call as he was

arriving at his home. He explained the one minute and fifty-four second gap

between responding to the dispatcher's call and when he activated his emergency

lights to packing up and securing the food prior to leaving for the accident scene.

Captain Robert Mangold testified that shortly after the accident he

reviewed the responding officers' MVRs and "observed that [plaintiff] had

driven in a reckless manner responding to the [accident]." He stated that the

safe speed to operate a vehicle depends on the "date, time, weather [and]

location," but "[i]n this instance . . . [he] d[idn't] see any reason" for plaintiff to

drive at a speed of "over a hundred [m.p.h.]."

Captain Mangold discussed plaintiff's conduct with Sergeant Elena

Gonzalez who prepared a report confirming that plaintiff "reach[ed] a speed of

up to 131 [m.p.h.]." She testified that Captain Mangold advised her to

recommend the Department investigate plaintiff for violating Rules 3:7.10,

3.9.10 and Rule 3:7.14(1) for "idling at his residence while on duty" and Rule

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3:9.4 for "failing to care for departmental equipment . . . by operating the vehicle

in a reckless manner."

Sergeant Gonzalez testified that she did not give plaintiff permission to

go to his home. She acknowledged that she never drove a police vehicle in

excess of 110 m.p.h., or 131 m.p.h., because she was concerned for her safety

as well as the safety of other officers and the public.

After Captain Mangold's and Sergeant Gonzalez's review, Lieutenant

Michael McGhee initiated an internal affairs investigation in which he

"compil[ed] reports, videos, and sp[oke] with other officers." He testified that

he interviewed plaintiff, who "didn't appear concerned or apologetic" about his

actions.

Lieutenant McGhee concluded that plaintiff was untruthful in his

interview. He testified that plaintiff told him that he had been riding around

zone six prior to getting breakfast. However, he stated that plaintiff was unable

to provide "any specific locations" in zone six where he patrolled and "[d]id not

recall where he was driving in the zone." Having consulted the mileage history

on plaintiff's vehicle, Lieutenant McGhee found plaintiff's story that he spent

time patrolling zone six "[n]ot entirely" credible.

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 Lieutenant McGhee also questioned plaintiff's claim that he returned

home to get a spoon for breakfast, but never made it inside his house, got the

spoon or even "stepped out of his vehicle." Lieutenant McGhee noted the delay

between the time when plaintiff received the call at 8:28:40 a.m. and when he

activated his MVR, which Lieutenant McGhee determined did not occur until

approximately 8:30:15 a.m. According to Lieutenant McGhee, plaintiff's

explanation for his activities between the time he left police headquarters and

when he left his house to respond to the accident was hard to believe given the

"minute and [fifty-four second] gap." Furthermore, Lieutenant McGhee testified

that there are spoons located in the police department.

Lieutenant McGhee explained that "[h]ad [plaintiff] been . . . anywhere in

his zone, even traveling . . . under emergent circumstances, [he] would [not]

have gotten to that high of a speed." Based upon his investigation, Lieutenant

McGhee recommended that plaintiff be cited for violating Rules 3:7.10 and

3:9.10.5

Chief of Police James M. Hunt, Jr., testified that plaintiff violated Rule

3:1.1, because he was "trained in abiding by the rules and regulations . . . and

5
Lieutenant McGhee did not recommend charging plaintiff with violating Rule
3:7.14(1), and the February 6, 2015 Notice of Charge and Hearing did not charge
plaintiff with violating either Rule 3:7.14(1) or Rule 3:9.4.
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he failed to adhere to them [by] driving recklessly [at a speed] of [131] miles

[per] hour to a fatal motor vehicle accident." With respect to Rule 3.7.10, Chief

Hunt stated that plaintiff went to his home without permission and noted the

unexplained minute and fifty-four second time gap between the time he left his

home and activated his lights. Chief Hunt also testified that plaintiff violated

Rule 3:9.10 by driving one "hundred thirty one miles an hour down a state

highway . . . [exhibiting a] reckless disregard for . . . his own life and [the life

of] others."

Chief Hunt also explained that the Department promulgated a standard

operating procedure entitled "Vehicle Operation and Response Guidelines" that

addressed the appropriate protocol for responding to emergencies. The directive

explained that "no matter how urgent the response" plaintiff was required to

operate his vehicle in a "safe and controlled manner . . . while taking into

consideration the characteristics of the roadway, mechanical capabilities of the

vehicle, weather conditions, and the potential actions of other citizens ." The

written procedure advised all police officers that the "first priority of a call

response is to arrive safely at the scene with minimal disruption to the public."

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 At the hearing, the Township also introduced evidence regarding

plaintiff's extensive history of traffic accidents and driving-related infractions.

We briefly summarize that evidence.

On November 2, 2004, plaintiff was verbally reprimanded after his

involvement in a one-car collision when, due to his inattentiveness, he

"sideswiped a traffic control barrel," breaking the glass on the passenger side

mirror of his patrol car. As a result of the accident, the Department

recommended that plaintiff "attend a driver improvement course."

On July 30, 2005, the Department issued plaintiff a second verbal

reprimand for inattentive driving when he backed his patrol car into a

Department police vehicle causing property damage to both vehicles. Plaintiff

was "lecture[d] on the need to pay close attention while driving so there is no

repeat of this type of incident."

On September 17, 2005, plaintiff "failed to negotiate [a] curve on the

highway and his vehicle struck the curb," causing "damage to the driver side

front wheel and rim" so significant the vehicle needed to be towed because the

"front left wheel was locked up." The Department attributed the cause of the

accident to the wet roadway and plaintiff's failure "to maintain proper control of

the patrol vehicle while responding to a call."

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 Because it was plaintiff's third motor vehicle accident within twelve

months, and there was the "potential for serious injury to him or others without

corrective action," the Department: 1) "assigned [plaintiff] to attend a driver

improvement course;" 2) required him "to watch selected training videos geared

towards instruction on safely operating emergency vehicles;" 3) assigned

plaintiff to a field training officer for three nights for "further instruction on the

proper techniques of emergency vehicle operation;" and 4) placed a written

reprimand in plaintiff's personnel file.

On November 28, 2006, "plaintiff struck a legally parked vehicle while

responding to an emergency call," causing "a chain reaction that resulted in two

privately owned vehicles to be damaged in the collision . . . [with] [o]ne vehicle

. . . heavily damaged." The Department concluded plaintiff "failed to maintain

proper control of [his] vehicle due to excessive speed and poor judgment"

resulting in a "failed response to the initial call and the requirement of other

police resources to cover the accident call." The Department again concluded

that without corrective action, there was "a potential for serious injury to occur."

As a result of the November 28, 2006 incident, the Department required

plaintiff to be reevaluated by a "certified emergency vehicle instructor, [with]

specific instruction and retraining . . . on the operation of emergency vehicles. "

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Plaintiff was also immediately assigned to watch training videos geared towards

instruction on safely operating emergency vehicles. Plaintiff also forfeited

twenty-four hours of compensatory time and a written report was placed in his

personnel file.

On July 21, 2013, plaintiff rear-ended a vehicle when he "was late for a

detail and was driving hastily." The investigation revealed that plaintiff "failed

to maintain proper foot contact on the brake pedal causing him to lose

momentary control . . . striking [the] [other] vehicle." Plaintiff was advised that

he "needs to be more aware of the basic controls of [his] vehicle." He was given

a two-day suspension, a thirty-day suspension for eligibility for off-duty details,

and was required to review the "policies on safe operation of police vehicles

with a qualified Emergency Vehicle Operator instructor."

On May 3, 2014, plaintiff rear-ended another car when he incorrectly

assumed the vehicle had turned. The internal affairs investigation report

attributed the "cause of the accident to . . . [plaintiff's] inattention," and also

noted plaintiff failed to activate his lights immediately after the accident.

Plaintiff pleaded guilty to failing to operate his police vehicle in a safe manner

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and neglecting to activate his MVR. He accepted the recommended four-day

suspension.6

In his August 12, 2015 written decision, the hearing officer concluded that

plaintiff violated Rules 3:1.1, 3:9.10, and 3:7.10 and, after considering plaintiff's

prior disciplinary history, recommended a ninety-day suspension without pay.

The hearing officer determined Captain Mangold, Lieutenant McGee, and Chief

Hunt to be credible witnesses and noted that both Lieutenant McGee and Chief

Hunt found plaintiff's explanation for the one minute and fifty-four second gap

to be dishonest. In this regard, the hearing officer explained that plaintiff "could

not explain the missing minute and [fifty-four] seconds . . . , how long he was

in [z]one [six] prior to getting breakfast, or what he was doing in his driveway

except 'securing grits.'"

Plaintiff filed a verified complaint seeking to reverse the ninety-day

suspension and the three-day suspension for the March 30, 2015 incident

involving the loss of a suspect's iPhone. On January 26, 2017, after hearing oral

6
Plaintiff was also involved in another motor vehicle accident in his patrol car
on December 3, 2012, but the Township concedes that because plaintiff failed
to activate his MVR, there was insufficient evidence to establish plaintiff's fault.
In the Department's written reprimand, it noted that plaintiff failed to report the
incident and he "used poor judgment [by] not using the assigned tools to his
advantage (MVR) and in doing so allowed himself and the Township of Neptune
to be liable to litigation."
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arguments, the court entered an order vacating plaintiff's ninety-day suspension

and affirming his three-day suspension.

In its written decision, the court concluded that the "record lack[ed]

sufficient and competent evidence to support the charges" related to the

December 14, 2014 incident. The court noted that plaintiff had permission to

leave his zone to purchase breakfast and took the more expedient route to his

residence to retrieve a spoon and secure the food, rather than returning to

Carmela's. The court further explained that because plaintiff was responding

to an emergency and "did not run any lights [or] roll over any stop signs," he did

not violate Rule 3:9.10. Finally, the court stated that without a clear written

policy that excessive speed is sufficient to establish recklessness, it could not

conclude that driving at 131 m.p.h., was per se reckless. On this point, the court

compared plaintiff's actions when speeding to the scene to the actions of the two

other responding officers, and noted that they also traveled at high rates of

speed.

On February 8, 2017, plaintiff filed a motion for attorney's fees and back-

pay and defendant cross-moved for reconsideration of the court's January 26,

2017 order. Plaintiff contended that because the ninety-day suspension and

three-day suspension arose from two separate disciplinary complaints, he was

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entitled to attorney's fees and back pay as to the vacated ninety-day suspension.

On May 12, 2017, after hearing oral arguments, the court placed its oral decision

on the record and entered an order denying both motions. These appeals

followed.

II.

The Township raises two primary arguments on appeal. First, relying on

In re Carter, 191 N.J. 474, 486 (2007), it asserts that the court failed to consider

the substantial evidence before the hearing officer supporting plaintiff's guilt

and "second guess[ed]" the Township’s administrative officers, who based their

testimony on decades of experience as Department police officers. Second, the

Township maintains that the court failed to afford appropriate consideration to

plaintiff's pervasive driving-related disciplinary history.

In his cross-appeal, plaintiff asserts that the court committed error in

denying his application for attorney's fees. He argues that although his three-day

suspension for the March 30, 2015 incident was upheld by the court, it arose

from a separate disciplinary complaint, and he should therefore be considered a

prevailing party with regard to his ninety-day suspension. Finally, plaintiff

maintains that the court's denial of his request for back pay was in error because

the court's May 12, 2017 order denying reconsideration was the final judgment

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of the court, and he filed a timely motion for back pay within thirty days of

receiving that order.

III.

As the Township is a non-civil service jurisdiction, the statutory

framework for disciplinary proceedings against police officers is governed by

N.J.S.A. 40A:14-147 to -151. Ruroede v. Borough of Hasbrouck Heights, 214

N.J. 338, 343 (2013). That statutory scheme requires the Township to show

"just cause" for any suspension, termination, fine, or reduction in rank. Id. at

354 (citing N.J.S.A. 40A:14-147).

An officer is entitled to a hearing and if convicted of any charge, may

obtain review in the Superior Court. Id. at 355; N.J.S.A. 40A:14-150. "The

court shall hear the cause de novo on the record below and may either affirm,

reverse or modify such conviction." Ibid. The trial court must, however, make

its own findings of fact. Id. at 357 (citing In re Disciplinary Proceedings of

Phillips, 117 N.J. 567, 578 (1990)).

The trial court must provide "an independent, neutral, and unbiased"

review of the disciplinary action, ibid. (citing Phillips, 117 N.J. at 580), and

although it should give deference to the hearing officer's conclusions regarding

credibility, "those initial findings are not controlling." Id. at 357 (quoting

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Phillips, 117 N.J. at 579). The court must "make reasonable conclusions based

on a thorough review of the record." Ibid. (quoting Phillips, 117 N.J. at 580).

When considering the penalty the municipality imposed upon an officer,

a court asks "whether such punishment is so disproportionate to the offense, in

light of all the circumstances, as to be shocking to one's sense of fairness."

Carter, 191 N.J. at 484; In re Herrmann, 192 N.J. 19, 28-29 (2006). The trial

court may modify, but not increase or enhance the penalty. Cosme v. Borough

of E. Newark Twp. Comm., 304 N.J. Super. 191, 201-02 (App. Div. 1997).

An appellate court's role in reviewing the de novo proceeding is "limited."

Phillips, 117 N.J. at 579. We "must ensure [that] there is 'a residuum of legal

and competent evidence in the record to support'" the court's decision. Ruroede,

214 N.J. at 359 (quoting Weston v. State, 60 N.J. 36, 51 (1972)). We do not

make new factual findings, but merely "decide whether there was adequate

evidence before the . . . [c]ourt to justify its finding of guilt." Phillips, 117 N.J.

at 579. "[U]nless the appellate tribunal finds that the decision below was

'arbitrary, capricious[,] unreasonable[,]' or '[un]supported by substantial

credible evidence in the record as a whole,' the de novo findings should not be

disturbed." Ibid. On the other hand, we do not defer to the trial court's legal

conclusions. Cosme, 304 N.J. Super. at 203 (citing Manalapan Realty, L.P. v.

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Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)). Like the trial court, we

will reverse any penalty disproportionate enough to "shock[] one's sense of

fairness." Carter, 191 N.J. at 484 (quoting In re Polk License Revocation, 90

N.J. 550, 578 (1982)).

After thoroughly reviewing the record in light of these legal principles and

the standard of review, we conclude that the court's decision vacating the ninety-

day suspension was arbitrary and capricious and not supported by the

"substantial credible evidence in the record as a whole." 7 With respect to Rule

3:9.10, the court relied on its review of plaintiff's MVR, and stated that plaintiff

"had full control of his vehicle[,] . . . did not run any lights, [and did not] roll

over any stop signs." However, the recording actually supports the Department's

and hearing officer's conclusion that plaintiff violated Rule 3:9.10 and the

"Vehicle Operation and Response Guidelines" as he did not "operate [his]

[D]epartment vehicle[] in a safe and controlled manner at all times."

7
The court did not address the hearing officer's finding that plaintiff violated
Rule 3:1.1. Instead, the court focused on the violations discussed in the
Department's internal affairs investigation, including Rules 3:7.14 and 3:9.4,
which were not included in the Department's February 6, 2015 Notice of Charge
and Hearing. Based upon Chief Hunt's testimony that plaintiff was trained to
abide by Department rules and regulations and "failed to adhere to them [by]
driving recklessly," we conclude there was substantial evidence in the record to
support the hearing officer's finding that plaintiff violated Rule 3:1.1.
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 For example, after backing his vehicle out of his driveway, plaintiff drove

through two stop signs in a residential area, the second time while driving 36

m.p.h. The MVR footage also shows plaintiff rapidly picking up speed,

reaching 111 m.p.h., and tailgating a pick-up truck at 84 m.p.h., before crossing

a double-yellow line. After the pick-up truck moved to the right lane to avoid

plaintiff's vehicle, he quickly accelerated to 131 m.p.h. As he approached a

traffic light that had just changed from red to green, plaintiff crossed another

double-yellow line traveling at 53 m.p.h. to bypass three cars stopped at the

intersection. Plaintiff then passed two cars in the right lane at a green light and

made a right turn at an intersection from the left lane, at 43 m.p.h. Plaintiff

accelerated to 80 m.p.h. in a residential 25 m.p.h. zone and was observed

crossing a double-yellow line and driving on the wrong side of the road. Finally,

plaintiff rolled through a red light at 38 m.p.h. before arriving at the accident

scene.

Based on these facts, the trial court's conclusion that plaintiff "had full

control of his [car]" and did not "operat[e] the vehicle in a reckless manner" is

mistaken and contrary to the evidence. The court's statements that plaintiff

never drove through a stop sign is clearly erroneous, as evidenced by the first

minute of the MVR footage. Additionally, plaintiff's repeated crossing of

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double-yellow lines and tailgating a pick-up truck at an excessive speed and

driving in excess of 100 m.p.h. while facing oncoming traffic and in an area with

homes and businesses cannot be considered "safe and controlled."

With respect to Rule 3:7.10, the court's finding that plaintiff was permitted

to leave his assigned zone is similarly erroneous. Though the court correctly

noted plaintiff had permission to "leave his assigned zone . . . to pick[] up

breakfast," he was not authorized to go to his home to pick up a spoon, or for

any other reason.

Finally, in light of these violations, and plaintiff's extensive disciplinary

history, the hearing officer's decision to suspend plaintiff for ninety days was

appropriate and consistent with the doctrine of progressive discipline. The goal

of progressive discipline is "to promote proportionality and uniformity in the

rendering of discipline of public employees." In re Stallworth, 208 N.J. 182,

195 (2011). The doctrine is employed "(1) to 'ratchet-up' or 'support imposition

of a more severe penalty for a public employee who engages in habitual

misconduct;' and (2) 'to mitigate the penalty' for an employee who has a record

largely unblemished by significant disciplinary infractions." Id. at 196 (quoting

Herrmann, 192 N.J. at 30-33).

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 Here, plaintiff was disciplined seven times in a period of ten years for

driving-related incidents, including an instance where he caused a chain

collision after striking a legally parked car while responding to an emergency

call. Plaintiff was found to be at fault in six of these incidents. In light of

plaintiff's clear violation of Rules 3:1.1, 3:7.10, and 3:9.10, and his pervasive

disciplinary history related to the operation of his vehicle, the ninety-day

suspension was not so "disproportionate to the offense" such that it shocks one's

"sense of fairness." Carter, 191 N.J. at 484.

In light of our decision, plaintiff is not the prevailing party and, thus, he

is not entitled to back pay or attorney's fees. Accordingly, we reject his cross-

appeal.

Reversed on the appeal, and remanded to the trial court for entry of an

order reinstating plaintiff's ninety-day suspension without pay; the cross-appeal

is dismissed.

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