WTruex by shimeiyan


									IMO Wayne Truex, Lakewood Township DOP Docket No. 2003-4095 (Merit System Board, decided January 28, 2004) The appeal of Wayne Truex, a Police Officer with Lakewood Township, of his removal, effective November 19, 2002, on charges, was heard by Administrative Law Judge John Schuster, III (ALJ), who rendered his initial decision on December 16, 2003. Exceptions were filed on behalf of the appellant and on behalf of the appointing authority. Having considered the record and the ALJ’s initial decision, and having made an independent evaluation of the record, the Merit System Board (Board), at its meeting on January 28, 2004, did not adopt the ALJ’s recommendation to modify the appellant’s penalty to a 30-day and a 60-day suspension. Rather, the Board upheld the appellant’s removal. DISCUSSION The appellant was charged with incompetency, inefficiency or failure to perform duties; insubordination; conduct unbecoming a public employee; neglect of duty, other sufficient cause; and violations of the rules and regulations of the Lakewood Township Police Department. With regard to the latter, the appellant was charged with withholding information, unbecoming conduct, unsatisfactory performance, being untruthful, and being absent without leave. Specifically, the appointing authority asserted that on August 30, 2002, the appellant refused on several occasions to provide samples of his blood in response to his involvement in a motor vehicle accident which resulted in the death of a pedestrian. The appellant was on duty at the time. Additionally, the appointing authority claimed that on September 2, 2002, the appellant was not truthful in his responses to questions posed by an investigator from the Ocean County Prosecutor’s Office with respect to the accident. Moreover, it contended that the appellant was absent without leave on November 5, 2002. Upon the appellant’s appeal to the Board, the matter was transmitted to the Office of Administrative Law (OAL) for a hearing as a contested case. In his initial decision, the ALJ sets forth that the appellant was working the 11:00 p.m. to 7:00 a.m. shift on August 29, 2002 to August 30, 2002. At approximately 12:39 a.m. on August 30, 2002, the appellant was involved in a motor vehicle accident at the intersection of Clifton Avenue and Courtney Road in Lakewood Township. The accident resulted in the death of a pedestrian, Lester Eldridge. The ALJ indicated that the investigation of the Ocean County Prosecutor’s Office revealed that the accident was due to Mr. Eldridge’s failure to make proper observations while crossing the street. Additionally, the ALJ stated that a malfunctioning streetlight also contributed to the accident. Lawrence

Patterson, a Lakewood Township Police Officer, investigated the matter and was advised by his supervisor to obtain a blood sample from the appellant. Paterson attempted to do so four times, but the appellant refused. Specifically, at approximately 3:00 a.m. on August 30, 2002, Patterson requested that the appellant provide a blood sample. The appellant responded that he would not do so because he had a couple of beers at lunch the day before the accident and was afraid that the beers would indicate a positive blood alcohol content. Thereafter, Patterson had the opportunity to observe the appellant in a small office at the police station for approximately one hour. Patterson testified that he did not detect any alcohol on the appellant’s breath or observe any visible indication of intoxication at the time. However, Patterson asked three more times whether the appellant would voluntarily provide a blood sample, in part so that Lakewood Township and the Police Department would be relieved of any liability. The appellant responded that he did not think it was a good idea and refused each time. Patterson indicated that he never ordered the appellant to provide a blood sample because he did not think he had the authority to do so as there was no probable cause, i.e., physical signs of intoxication. He verified this with an Assistant Prosecutor. Additionally, Detective Joseph Aulisi of the Ocean County Prosecutor’s Office testified that on September 2, 2002, he interviewed the appellant and was present when the appellant gave a statement regarding the accident. Although he admitted that the statement was not signed by the appellant, Aulisi stated that it was a true and accurate reflection of what took place. Aulisi indicated that he spoke with Patterson prior to the appellant’s interview and learned that the appellant had consumed a couple of beers the day before the accident. Therefore, Aulisi asked the appellant whether or not he had any beers prior to his shift to which the appellant responded in the negative. Aulisi also asked the appellant why he refused to give a blood sample. The appellant responded that he was confused and dazed as a result of the accident. Moreover, so that there would not be any misunderstanding, Aulisi asked again whether the appellant had any alcoholic drinks at all the day prior to his shift and the appellant emphatically stated that he did not. Moreover, on November 5, 2002, the appellant was scheduled to return to work after being on a 60-day suspension for excessive absenteeism.1 However, at 9:46 p.m., the appellant called the Lakewood Police Department and advised a dispatcher that he was not coming to work. He stated that when he was driving, he almost hit a pedestrian and was very shaken about it. Captain Charles Smith attempted to call the appellant, but the first telephone number on file for the appellant was disconnected and there was no answer when Smith called the second
It is noted that the appellant appealed his 60-day suspension to the Board, and his appeal was transmitted to the OAL for a hearing. The parties have settled the matter to a 30-day suspension and an initial decision by an ALJ has been issued, recommending acknowledgment of the settlement. The settlement is awaiting the Board’s action.

number on file. Smith testified that an officer must speak with a superior officer when calling off from work and be at a location where he or she can be reached. With respect to the appellant’s refusal to provide a blood sample, the ALJ determined that the appellant was never ordered to provide one. Rather, the appellant was presented the option to submit a blood sample. The ALJ concluded that the appellant’s election not to do so could not be construed as a violation of the applicable regulations. Therefore, the ALJ recommended that the charges relating to the appellant’s refusal be dismissed. With respect to the appellant’s failure to report to work on November 5, 2002, the ALJ determined that as a Police Officer for the last 18 years, the appellant was well aware of the call out procedures. The appellant was required to contact a supervisor and leave a contact number where he could be reached. The ALJ concluded that the appellant was guilty as charged and recommended a 30-day suspension for the violation. Moreover, the ALJ determined that the appellant lied to Aulisi when he indicated that he had not consumed any alcoholic beverages on August 29, 2002 since he had advised Patterson that he in fact had a couple of beers at lunch prior to his shift. The ALJ stated that a Police Officer has an obligation to tell the truth to any investigating officer, whether or not he or she is the subject of that investigation. As the ALJ aptly observed, “[t]o do otherwise directly inhibits the search for the truth and could have the effect of punishing the innocent and/or freeing the guilty. Fabrications cannot be justified in police work as investigating officers have a fiduciary duty to find and report the truth.” Initial Decision at 10. The ALJ concluded that the charges against the appellant in this respect were upheld. The ALJ recommended that the appellant receive a 60-day suspension. The Board disagrees with the ALJ’s conclusion that the appellant’s actions only warrant a combined suspension of 90 days. A review of the record indicates that the appellant’s actions justify his removal. In this regard, the Board, in addition to considering the seriousness of the underlying incident, utilizes, when appropriate, the concept of progressive discipline. West New York v. Bock, 38 N.J. 500 (1962). However, it is well established that where the underlying conduct is of an egregious nature, the imposition of a penalty up to and including removal is appropriate, regardless of an individual’s disciplinary history. See Henry v. Rahway State Prison, 81 N.J. 571 (1980). In this case, the untruthful statement of the appellant, who is a law enforcement employee, during an investigation of a fatal accident, is sufficient in and of itself to remove the appellant from employment as a Police Officer. The Board is ever mindful of the high standards that are placed upon law enforcement personnel. Municipal Police Officers hold highly visible and sensitive positions within the community and the standard for the position includes good character and an image of utmost confidence and trust. It must be recognized that a municipal Police Officer is a special kind of public employee:

His primary duty is to enforce and uphold the law. He carries a service revolver on his person and is constantly called upon to exercise tact, restraint and good judgment in his relationship with the public. He represents law and order to the citizenry and must present an image of personal integrity and dependability in order to have the respect of the public . . . See Moorestown v. Armstrong, 89 N.J. Super. 560, 566 (App. Div. 1965), cert. denied, 47 N.J. 80 (1966). See also In re Phillips, 117 N.J. 567 (1990). The appellant’s untruthful statement undermines the public’s trust and cannot be tolerated. Although the Ocean County Prosecutor’s Officer determined that the cause of the fatality was due to pedestrian error and a malfunctioning streetlight, the seriousness of the appellant’s actions cannot be overlooked. The Board emphasizes that the appellant’s untruthfulness was especially egregious since the investigation involved a death. Therefore, the Board finds that the charges against the appellant relating to his untruthfulness have been sustained and warrant his removal. Additionally, as a Police Officer, the appellant had the duty, pursuant to the rules and regulations of the Lakewood Township Police Department, not to withhold information during an investigation. A similar duty to cooperate in local police investigations is found in the Attorney General’s Guidelines on Internal Affairs Policy and Procedures, which the appointing authority has adopted. Here, the appellant was requested by the investigating officer on at least four separate occasions to provide a blood sample. In each instance, the appellant withheld information critical to the investigation of a fatal accident by refusing to provide the police department with a blood sample. Therefore, the Board finds that the appellant violated the rules and regulations of the Lakewood Township Police Department, by his repeated refusals to provide a blood sample. The appellant’s actions are serious and cannot be condoned. Thus, in addition to his untruthfulness, the appellant’s repeated refusals provide an additional basis for his removal. Moreover, with respect to the appellant’s absence without leave on November 5, 2002, it is undisputed that the appellant failed to advise a superior officer of his absence and did not leave a valid contact number where a supervisor could reach him. The appellant’s absence was unauthorized. In light of the appellant’s prior discipline for chronic absenteeism and following the concept of progressive discipline, the ALJ’s recommendation of a 30-day suspension is not appropriate. However, it is unnecessary for the Board to impose a separate penalty for this charge, as the totality of the appellant’s actions warrants his removal. ORDER

The Board finds that the action of the appointing authority in removing the appellant was justified. Therefore, the Board affirms that action and dismisses the appeal of Wayne Truex.

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