IN RE THE DISCIPLINARY ACTION OF MERRITT CARR (L-4686-16, ESSEX COUNTY AND STATEWIDE) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE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-5330-17T1
IN RE THE DISCIPLINARY
ACTION OF MERRITT CARR.
____________________________
Argued August 13, 2019 – Decided August 21, 2019
Before Judges Sumners and Moynihan.
On appeal from the Superior Court of New Jersey, Law
Division, Essex County, Docket No. L-4686-16.
Kyle J. Trent argued the cause for appellant Borough of
Glen Ridge (Apruzzese, McDermott, Mastro &
Murphy, PC, attorneys; Arthur R. Thibault, Jr., of
counsel and on the brief; Kyle J. Trent, on the brief).
Joshua H. Reinitz argued the cause for respondent
Merritt Carr (Iacullo Martino, LLC, attorneys; Joshua
H. Reinitz and Anthony J. Iacullo, of counsel and on
the brief).
PER CURIAM
The Borough of Glen Ridge appeals from the trial court's order reducing
the Borough Administrator's twenty-day suspension of Merritt Carr from his
position as a Borough police sergeant, following a departmental disciplinary
hearing, to a twenty-four hour suspension. The Borough argues the "trial court
failed to consider or address" certain charges leveled against Carr or "to consider
his guilt on those charges when assessing the penalty"; and "failed to provide
analysis as to the basis for" reducing the penalty. We agree and remand this
matter, once again, to the Law Division.
We previously remanded this case to the trial court because in its prior
decision finding the Borough proved "by a preponderance of the evidence that
. . . Carr neglected his duty, failed to perform duties, failed to supervise a
subordinate officer, and engaged in conduct unbecoming a public employee," it
did not correlate its findings to the elements of each charge and analyze whether
the substantiated charges warranted the twenty-day suspension which the trial
court then upheld. In re Disciplinary Action of Carr, No. A-3987-16 (App. Div.
May 4, 2018).
The preliminary notice of disciplinary action (PNDA) listed both the
departmental and statutory charges lodged against Carr:
1. DEPARTMENTAL RULES AND REGULATIONS:
a. 2.32.140W Violation of rules 3:7F & 3:8B-3[1]
1
The charge set forth in section 2.32.140W specifically provides: "Violating
any of the rules and regulations governing the department or any administrative
A-5330-17T1
2
b. 2.32.140M Neglect of Duty
c. 2.32.140J Incompetency
2. VIOLATION OF N.J.S.A. 40A:14-147
a. Conduct Unbecoming a Public Employee;
b. Neglect of Duty;
c. Failure to Supervise; and
d. Failure to Perform Duties.
rule or regulation promulgated by the public safety committee or the mayor and
council." Departmental Rule 3:7F provides:
ASSISTING SUBORDINATES. A SUPERVISORY
OFFICER SHALL HAVE A WORKING
KNOWLEDGE OF THE DUTIES AND
RESPONSIBILITIES OF HIS SUBORDINATES. HE
SHALL OBSERVE CONTACTS MADE WITH THE
PUBLIC BY HIS SUBORDINATES AND BE
AVAILABLE FOR ASSISTANCE OR
INSTRUCTION AS MAY BE REQUIRED. A FIELD
SUPERVISORY OFFICER SHALL RESPOND TO
CALLS OF SERIOUS EMERGENCIES, FELONIES
IN PROGRESS, ASSAULTS AND OTHERS,
UNLESS ACTIVELY ENGAGED IN A POLICE
INCIDENT. HE SHOULD OBSERVE THE
CONDUCT OF THE ASSIGNED PERSONNEL AND
TAKE ACTIVE CHARGE WHEN NECESSARY.
Departmental Rule 3:8B-3 provides the squad sergeant's responsibilities
include: "DIRECT[ING] SUBORDINATES IN THE PROPER
PERFORMANCE OF THEIR DUTIES AND ENSUR[ING] THAT THEY ARE
PROPERLY OBEYING AND CARRYING OUT CURRENT POLICIES AND
PROCEDURES."
A-5330-17T1
3
In its oral decision after remand, the trial court concluded Carr violated
Departmental Rules 3:7F and 3:8B-3. The court found Carr, as sergeant, ordered
an officer who had never done so without accompaniment, to take a statement
from a domestic violence victim and prepare a concomitant report. Despite
knowing the officer's level of inexperience, Carr watched a football game on a
break-room television instead of directly observing the officer's actions or
correcting the many errors the officer made in taking the victim's statement thus
violating Departmental Rule 3:7F. The court also concluded Carr violated
Departmental Rule 3:8B-3 based on numerous errors committed in the
preparation of a temporary restraining order (TRO): "boxes . . . checked that
[should not] have been" and provisions granting possession of a Pennsylvania
residence to the victim and a search warrant of another Pennsylvania residence
– despite Carr being advised by a municipal court judge that provisions
concerning properties outside the jurisdiction of New Jersey courts should not
be included in the TRO. Further evidence of that violation included the failure
to: address the elements of terroristic threats, the predicate offense for the TRO,
in the victim's statement; collect, or even mention in the report, text messages
possessed by the victim evidencing the predicate offense; mention in the report
the search warrant for weapons, a police-department computer-database check
A-5330-17T1
4
of the domestic violence suspect, and Carr's actions in connection with the
investigation. The trial court did not find sufficient evidence that proved the
incompetency charge under Regulation 2.32.140J. 2 We find no reason to disturb
those findings which are supported by substantial, credible evidence in the
record. In re Disciplinary Procedures of Phillips, 117 N.J. 567, 581 (1990)
In its remand decision, the trial court did not address the charged neglect
of duty violation under Regulation 2.32.140M and the four statutory charges
under N.J.S.A. 40A:14-147: conduct unbecoming a public employee, neglect of
duty, failure to supervise and failure to perform duties. Although the court, in
its first decision, determined Carr "neglected his duty, failed to perform duties,
failed to supervise a subordinate officer, and engaged in conduct unbecoming a
public employee," In re Disciplinary Action of Carr, slip op. at 2-3, it did not
incorporate those findings, and explain them, in the remand decision.
We recognize that many of the trial court's current findings could well
support a determination that Carr violated the provisions the trial court did not
address. It is the role of the trial court, however, to conduct a de novo review
of the proceedings before the original tribunal – here, the Borough Administrator
2
The court not only considered the incompetency charge that was set forth in
the PNDA, but the other portions of the regulation not set forth therein: "lack
of energy and incapacity, mental or physical."
A-5330-17T1
5
– "to ensure that a neutral, unbiased forum will review disciplinary convictions."
Phillips, 117 N.J. at 580. Our role in reviewing that de novo proceeding is
limited. Id. at 579. Our "function on appeal is not to make new factual findings
but simply to decide whether there was adequate evidence before the [] [c]ourt
to justify its finding of guilt." Ibid. (first alteration in original) (quoting State
v. Johnson, 42 N.J. 146, 161 (1964)). Therefore, "unless the appellate tribunal
finds that the decision below was 'arbitrary, capricious or unreasonable' or
'[un]supported by substantial credible evidence in the record as a whole,' the de
novo findings should not be disturbed." Ibid. (alteration in original) (quoting
Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980)).
We are thus compelled to remand this matter to the trial court for its
consideration of the unaddressed charges. We decline to exercise original
jurisdiction because further fact-finding must be completed. Price v. Himeji,
LLC, 214 N.J. 263, 294 (2013). We also reject Carr's argument that the trial
court's failure to address those charges infers that they "did not merit discussion
and should be deemed dismissed." As we explained in our prior decision on this
matter, "Rule 1:7-4(a) requires a court to not only find facts, but to 'state its
conclusions of law thereon.'" In re Disciplinary Action of Carr, slip op. at 3
(quoting R. 1:7-4(a)). Further, it would be inappropriate to infer what the trial
A-5330-17T1
6
court found from a barren record, especially considering its prior uncorrelated
finding that Carr violated the now-unaddressed regulatory and statutory charges.
If any or all of those unaddressed charges are deemed proved by the trial
court, it should assess the penalty in light of those found violations and explain
its reasons – much as it did, contrary to the Borough's argument, in its oral
remand decision – so an appellate court would be able to determine "whether
the 'punishment is so disproportionate to the offense, in the light of all of the
circumstances, as to be shocking to one's sense of fairness,'" In re Stallworth,
208 N.J. 182, 195 (2011) (quoting In re Carter, 191 N.J. 474, 484 (2007)). The
trial court should recognize that on de novo review, a court may "alter a sanction
imposed by an administrative agency only 'when necessary to bring the agency's
action into conformity with its delegated authority. The [c]ourt has no power to
act independently as an administrative tribunal or to substitute its judgment for
that of the agency.'" In re Herrmann, 192 N.J. 19, 28 (2007) (quoting In re Polk,
90 N.J. 550, 578 (1982)). Our Supreme Court has "cautioned, courts should take
care not to substitute their own views of whether a particular penalty is correct
for those of the body charged with making that decision." Carter, 191 N.J. at
486. Of course, the trial court should well-explain any deviation from its prior
decision.
A-5330-17T1
7
Remanded. We do not retain jurisdiction.
A-5330-17T1
8