DIANA WELTHY VS. EASTAMPTON TOWNSHIP POLICE DEPARTMENT (L-2438-18, BURLINGTON COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE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-3515-19
DIANA WELTHY,
Plaintiff-Appellant/
Cross-Respondent,
v.
EASTAMPTON TOWNSHIP
POLICE DEPARTMENT,
Defendant-Respondent/
Cross-Appellant.
___________________________
Submitted November 16, 2021 – Decided November 23, 2021
Before Judges Fisher and DeAlmeida.
On appeal from the Superior Court of New Jersey, Law
Division, Burlington County, Docket No. L-2438-18.
Jacobs & Barbone, PA, attorneys for appellant/cross-
respondent (Louis M. Barbone, on the briefs).
Armando V. Riccio, LLC, attorneys for respondent
/cross-appellant (Armando V. Riccio, on the briefs).
PER CURIAM
Plaintiff Diana Welthy began her employment as a police officer with the
Eastampton Police Department in July 2008. She was suspended with pay in
April 2015 and, in July 2016, charged with fourteen counts of misconduct,
including, among other things: a failure to report; retaining donations intended
for the police department; using her patrol car for unofficial duties and in
unpermitted locations; falsifying documents; and insubordination.
A trial was conducted by an appointed hearing officer between January
and July 2018. In November 2018, the hearing officer filed a 121 -page decision
finding plaintiff guilty of all fourteen charges. Plaintiff was thus terminated.
Days later, she filed this action in lieu of prerogative writs.
The judge heard supplemental testimony from Police Chief Joseph
Iacovitti and Sergeant Dennis Shephard in September 2019. On March 3, 2020,
the judge issued an order and a twenty-six-page opinion explaining why she
sustained some charges but not others; the judge also granted defendant's
counterclaim to recoup salary paid during the suspension period that amounted
to $321,942.17.
Defendant moved for reconsideration of the dismissed charges,
challenging, among other things, the judge's finding that Chief Iacovitti had not
been truthful. The trial judge granted the motion in part, amending her finding
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to the "possibility" that Chief Iacovitti "was simply mistaken." Plaintiff then
initiated this appeal, and defendant filed a cross-appeal.
Plaintiff argues the trial judge failed to make independent findings of fact
and instead applied an appellate standard of review by assessing whether the
hearing officer's findings were supported by substantial evidence. She also
contends the judge's findings upholding six charges were "arbitrary, capricious,
and unreasonable." We find insufficient merit in these arguments to warrant
further discussion, R. 2:11-3(e)(1)(E), and affirm, adding only the following
brief comments.
Pursuant to N.J.S.A. 40A:14-150, actions like this are heard de novo to
ensure that a neutral, unbiased forum will review the disciplinary conviction. In
re Disciplinary Procedures of Phillips, 117 N.J. 567, 580 (1990). While a trial
judge conducting a de novo review must give deference to the credibility
determinations drawn by the original tribunal, those initial findings are not
controlling. State v. Johnson, 42 N.J. 146, 157 (1964); Donofrio v. Haag Bros.,
10 N.J. Super. 258, 262 (App. Div. 1950). Instead, "careful sifting and weighing
of the evidence and independent findings of fact [] are the hallmark of a de novo
trial." King v. Ryan, 262 N.J. Super. 401, 412 (App. Div. 1993). We are
abundantly satisfied that the judge faithfully adhered to these principles.
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Our role is more limited than the trial judge's; we do not make new factual
findings but simply determine whether there was evidence to support the trial
judge's findings. Johnson, 42 N.J. at 161. Unless the decision under review is
"arbitrary, capricious or unreasonable" or "[un]supported by substantial credible
evidence in the record as a whole," a judge's de novo findings should not be
disturbed. See Henry v. Rahway State Prison, 81 N.J. 571, 580 (1980); Campbell
v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963). Our application of this standard
counsels against appellate intervention in the trial court's decision.
The trial judge's thorough opinion, a large portion of which focuses on the
facts and the parties' various assertions, reveals that the judge carefully
considered and weighed all the evidence. This is particularly evident in the
judge's finding in plaintiff's favor on eight of the fourteen charges, and the
determination that Chief Iacovitti's testimony was "suspect" – clear indications
that the judge did not rubber-stamp the hearing officer's decision. In finding
plaintiff guilty of six of the charges, the trial judge found the record "replete
with inconsistencies regarding [p]laintiff's truthfulness as a police officer," and
found "undisputed" evidence of patrol logs that did not align with GPS locations,
her failure to report an alleged injury, and her use of a patrol vehicle for
impermissible personal reasons.
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We reject both parties' invitations to have us second-guess the trial judge's
thoughtful resolution of all the issues.
Affirmed.
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