IN THE MATTER OF MICHAEL INGRASSELINO, ETC. (NEW JERSEY CIVIL SERVICE COMMISSION) ( 2022 )

NOT FOR PUBLICATION WITHOUT THE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-3445-19
IN THE MATTER OF
MICHAEL INGRASSELINO,
ELMWOOD PARK, POLICE
DEPARTMENT.
_________________________
Argued December 8, 2021 – Decided March 29, 2022
Before Judges Gilson, Gooden Brown and Gummer.
On appeal from the New Jersey Civil Service
Commission, Docket No. 2019-924.
Lauren Sandy argued the cause for appellant Michael
Ingrasselino.
Arthur R. Thibault, Jr., argued the cause for respondent
Borough of Elmwood Park (Apruzzese, McDermott,
Mastro & Murphy, PC, attorneys; Arthur R. Thibault,
Jr., of counsel and on the brief; Kyle J. Trent, on the
brief).
Andrew J. Bruck, Acting Attorney General, attorney for
respondent New Jersey Civil Service Commission
(Pamela N. Ullman, Deputy Attorney General, on the
statement in lieu of brief).
PER CURIAM
Michael Ingrasselino, a former police officer with the Elmwood Park
Police Department, appeals from a final agency decision by the Civil Service
Commission (Commission), which affirmed a decision to terminate him.
Because the Commission's decision was not arbitrary, capricious, or
unreasonable and its factual findings were supported by substantial credible
evidence in the record, we affirm.
I.
We derive these facts from the record. The Department hired Ingrasselino
as a police officer in May 2006. In June 2017, an internal-affairs investigation
of a police lieutenant revealed Ingrasselino may have falsified Daily Vehicle
Inspection and Attendance Reports (DVIARs) by overstating the number of
miles he had driven during his shifts. On November 15, 2017, Ingrasselino was
advised in writing that an internal-affairs complaint had been made against him
regarding violations that allegedly occurred in 2015 and 2016. Ingrasselino was
suspended with pay on December 29, 2017, pending further investigation.
The investigation of Ingrasselino was conducted by internal-affairs
investigator Captain Marc D'Amore, who was fully authorized to conduct the
investigation, unlike the investigator in O'Rourke v. City of Lambertville, 405
N.J. Super. 8, 21 (App. Div. 2008), on which Ingrasselino relies. In his report,
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D'Amore found, among other things, that Ingrasselino had falsified over one
hundred DVIARs by misstating his total miles driven, 1 the number of
summonses he had issued, and the amount of fuel dispensed into his patrol
vehicle.
On June 4, 2018, the Department suspended Ingrasselino without pay and
issued a Preliminary Notice of Disciplinary Action against him, alleging he had:
while on duty and in disregard of and insubordinate to
Departmental Rules, Regulations and Policies, falsified
on numerous occasions his [DVIARs], including but
not limited to the number of miles he drove during his
tour, the number of tickets he issued, and the amount of
fuel he dispensed into patrol vehicles during the years
of 2015 and 2016.
The Department also asserted Ingrasselino had made untruthful statements
during his internal-affairs interview. The Department charged him with
violations of N.J.A.C. 4A:2-2.3(a)(1), (2), (6), (7), and (12), for, respectively,
incompetency, inefficiency or failure to perform duties, insubordination,
conduct unbecoming a public employee, neglect of duty, and "[o]ther sufficient
cause." The Department also charged him with violations of several
1
D'Amore testified he did not consider DVIARs in which Ingrasselino had
reported only five miles more or less than what the GPS unit had recorded.
Although he frequently significantly overreported his mileage by more than five
miles, Ingrasselino did not underreport his mileage by more than five miles.
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departmental rules and regulations. After a local disciplinary hearing was held,
the Department issued a Final Notice of Disciplinary Action on September 24,
2018, sustaining most of the charges and terminating him.
Ingrasselino appealed. The Commission transferred the case to the Office
of Administrative Law as a contested case. An administrative law judge (ALJ)
conducted a multi-day hearing.
At the hearing, the Borough of Elmwood Park (Borough) called as its first
witness internal-affairs investigator D'Amore, who testified the Department had
an unwritten rule requiring patrol officers to drive forty miles during a twelve-
hour shift. Officers were required to report accurately on their DVIARs at the
end of their shifts the number of miles they had driven, summonses they had
issued, and gallons of fuel dispensed into their vehicles. According to D'Amore,
a police lieutenant had been accused of improperly ordering an officer in his
unit to report on her DVIARs she had driven forty miles during her shifts
regardless of whether she actually had driven forty miles. During his
investigation of that complaint, D'Amore reviewed the DVIARs of officers in
the lieutenant's unit who had reported on their DVIARs driving forty miles
during their shifts. He compared what an officer had reported on a DVIAR as
the total miles driven with what the officer's vehicle's GPS unit had recorded.
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D'Amore initially discovered discrepancies in two of Ingrasselino's DVIARs.
As stated in D'Amore's report, in that initial review Ingrasselino was the only
officer whose reported miles differed from the GPS unit's recorded miles. As a
result of that discovery, D'Amore began an internal-affairs investigation focused
on Ingrasselino.
In that investigation, for every day Ingrasselino was on duty in 2015 and
2016, D'Amore compared the total miles driven that Ingrasselino had reported
on his DVIARs with the total miles recorded by his vehicle's GPS unit. D'Amore
ultimately found eighty-four instances in which Ingrasselino had reported on his
DVIARs total miles driven that were substantially more than the total miles
recorded by the GPS unit. D'Amore also noticed in Ingrasselino's DVIARs a
"roll-back" pattern, meaning Ingrasselino's reported starting mileage on his
DVIARs was less than the ending vehicle mileage reported by the previous
officer who had utilized the same vehicle. D'Amore testified he saw that roll-
back activity on approximately twenty-two of his DVIARs.
D'Amore found other discrepancies in Ingrasselino's DVIARs. He
identified seventeen occasions Ingrasselino had reported issuing more
summonses than court records reflected and twenty-three occasions he had
issued fewer summonses than court records reflected. D'Amore also found
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discrepancies regarding Ingrasselino's fuel-usage reports. Patrol officers were
required at the end of their shifts to fuel their patrol vehicles at the gasoline
pumps of the Borough's Department of Public Works and to document
accurately the amount of fuel dispensed into their vehicle. D'Amore reviewed
GPS reports for the days Ingrasselino had reported fueling his patrol vehicle and
found five instances in which the GPS report showed Ingrasselino had not
travelled anywhere near the Public Works gasoline pumps or any other gas
station located in the Borough, demonstrating Ingrasselino had not fueled his
vehicle on those dates and had falsified his DVIARs by reporting he had.
In his report, D'Amore found Ingrasselino had "falsified and/or placed
false information on an official police report numerous times," calling into
question his "ability to complete police reports truthfully and accurately."
Finding Ingrasselino had committed numerous violations, D'Amore concluded:
"If false information is placed on these simple, routine documents [DVIARs],
Officer Ingrasselino cannot be entrusted in conducting more complex
investigations which require more accurate, detailed information and future
ensuing courtroom testimony."
At the hearing the Department's Chief of Police Michael Foligno testified
he had reviewed D'Amore's report and believed Ingrasselino should be removed
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as a result of falsifying his DVIARs because "[a]ll police officers are called to
be honest and have integrity at all times, and not to put false information,
inaccurate information, on any document or report, because that compromises
the officer's integrity." In Foligno's view, if Ingrasselino could not be trusted to
complete the simple task of accurately reporting information on his DVIARs,
the Department could not trust him to deal with more difficult tasks, such as
testifying in court or dealing with evidence of a crime. After moving documents
into evidence, the Borough rested its case.
Ingrasselino called as his first witness the Borough's chief financial
officer, who testified about Ingrasselino's suspension without pay and
unemployment-benefits proceedings.
Months after the Borough had rested its case, after Ingrasselino already
had called his first witness, and one week before the third hearing day,
Ingrasselino advised the ALJ he wanted to retain an expert witness to challenge
the accuracy of the GPS unit. The ALJ directed Ingrasselino to file a motion.
After hearing oral argument, the ALJ denied the motion in a written opinion.
The ALJ found Ingrasselino had not indicated an intention to retain an expert
witness during the discovery period; had not sought "to bar the internal affairs
testimony concerning the number of miles Ingrasselino drove while on patrol";
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had not objected to testimony or documentary evidence regarding the GPS
records; previously had identified lay witnesses who would be called but had
not at that time stated an intention to call an expert witness; and had not advised
anyone of his intent to use an expert witness until a week before the next hearing
date long after the Borough rested, despite claiming a lack of trust of GPS
records back in August 2018. After reviewing the proposed expert's report, the
ALJ found it "highly speculative and hypothetical" because the expert had stated
he was "not provided information that is specific to the [GPS] unit's specific
abilities" and was not provided with "full data logs," making him unable to
conduct "an independent review of each day's data to ensure proper
calculations." The ALJ found the lack of documentation provided to and relied
on by the expert "only serves to highlight the untimeliness" of the expert's "entry
into the case." The ALJ held any interest favoring admission of the expert
witness was substantially outweighed by a lack of probative value. He denied
the motion, finding the expert had conceded the GPS unit was "able to accurately
determine the unit's location at a given time within reasonable tolerances."
Ingrasselino initially presented two witnesses, his longtime friend and
former Elmwood Park police officer Joseph Friedman and his father and former
Elmwood Park Chief of Police Donald Ingrasselino. They both testified they
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believed the charges filed against Ingrasselino were a result of bias and
harassment.
Ingrasselino testified, also contending Foligno had targeted him for
harassment. He confirmed he was aware since 2012 of the unwritten rule that
patrol officers were expected to drive forty miles during their shifts. He asserted
some discrepancies between his DVIARs and the GPS records were due to the
GPS unit on some days not picking up his signal for a large portion of his shift,
thus inaccurately reporting his total miles driven. He admitted "a lot of times"
and "probably most of the times" he had forgotten to reset the trip monitor to
zero at the start of his shift and he then guessed or estimated his mileage for
those shifts. He testified it was never his intent to mislead his supervisors by
falsifying his DVIARs.
The Borough called in rebuttal Foligno, two current captains, and one
retired captain. Foligno denied having a vendetta against Ingrasselino. The
other witnesses denied the existence of or having knowledge of any bias towards
or harassment of Ingrasselino.
The ALJ denied Ingrasselino's appeal and affirmed his removal in a
detailed and thorough written initial decision. The ALJ found "on eighty-four
occasions, the appellant substantially overstated the number of miles he
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patrolled" and "the number of occasions of false information on his mileage (84
times in the two years of service that was investigated) indicate[d] intentional
conduct." He found Ingrasselino's claims that his errors on his DVIARs were
unintentional, and much of his testimony, "to be not credible," finding "[e]ven
though Ingrasselino knew he was merely guessing how many miles he drove, he
never once in two years asked for . . . assistance to correct his alleged 'mistakes.'"
The ALJ also found Ingrasselino had "frequently (40 times) incorrectly recorded
the number of summonses he recorded during his shift." Because Ingrasselino
had underreported the number of summonses he had issued about half the time,
the ALJ found that "indicate[d] that the inaccurate recordings on the number of
summonses issued was a product of negligent or possibly reckless disregard of
his duty, rather than intentionally false or deceptive." The ALJ similarly found
Ingrasselino had negligently and falsely reported five times he added fuel to his
vehicle when the GPS proved he had not visited the Department of Public Works
gasoline pumps on those days.
The ALJ considered each charge and found the following charges were
sustained: incompetency and failure to perform duties, N.J.A.C. 4A:2-2.3(a)(1);
conduct unbecoming a police officer, N.J.A.C. 4A:2-2.3(a)(6); neglect of duty,
N.J.A.C. 4A:2-2.3(a)(7); and other sufficient cause, N.J.A.C. 4A:2-2.3(a)(12).
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He rejected Ingrasselino's claim he had become the target of a vindictive police
chief when Foligno replaced his father as police chief, finding:
If Ingrasselino was, as he and his witnesses sought to
prove, a victim of being targeted, he could have[] made
great effort to ensure his [DVIARs] were accurate and
truthful. However, as admitted, Ingrasselino frequently
overstated the miles he drove, and as shown, frequently
failed to patrol as much as he was supposed to during
his shift; instead chose to deliberately, or with reckless
disregard for the truth, falsify his mileage records.
Such conduct is certainly unbecoming a police officer.
The ALJ found Ingrasselino's conduct, "however egregious," did not constitute
insubordination pursuant to N.J.A.C. 4A:2-2.3(a)(2).
The ALJ also sustained the charges of violating the following
departmental rules: 2:1.3(1) for failure to conform with the policies of the
Department; 2:1.3(8) for failing to perform his duties promptly, faithfully, and
diligently; 3:1.5 by not performing his duties as required; and 3:7.5 by failing to
perform his duties to the best of his abilities. However, the ALJ found
Ingrasselino's "conduct did not rise to the level of an Ethics violation as defined
by Rule 1:5-2."
The ALJ rejected Ingrasselino's remaining arguments, specifically
discounting his assertions that: the GPS records could not be used against him
because departmental policy prevented their use "as a tool of punishment"; and
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the charges against him should be dismissed because they were untimely
pursuant to N.J.S.A. 40A:14-147, and because the Borough had employed
illegally a "civilian" named Robert Verry as an independent counsel and lead
investigator in internal-affairs investigations.
The ALJ found the penalty of removal was appropriate given
Ingrasselino's "egregious" conduct and that the Department "may properly infer
that an officer who can't be trusted to complete and to honestly perform simple
but important daily tasks such as involved here, cannot or should not be trusted
with even more complex tasks as required of a police officer."
Ingrasselino filed "formal exceptions" to the initial decision. The
Commission subsequently entered its final administrative action, adopting the
factual findings and conclusions of the ALJ, and affirming and finding justified
Ingrasselino's removal.
In this appeal, Ingrasselino argues the Commission's decision should be
reversed because it was not supported by the preponderance of the credible
evidence; was based on several arbitrary, capricious, and erroneous evidentiary
findings; was arbitrary and capricious because it failed to implement progressive
discipline; was based on an investigation that was unfair, impartial, and violative
of the law; and was based on disciplinary charges that are violative of the law.
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He also argues he was improperly suspended without pay and is entitled to back
pay and back benefits and that the ALJ committed reversible error in denying
his expert-witness motion.
II.
Our review of an agency determination is limited. Allstars Auto Grp., Inc.
v. N.J. Motor Vehicle Comm'n, 234 N.J. 150, 157 (2018). An agency's
determination "is entitled to affirmance so long as the determination is not
arbitrary, capricious, or unreasonable, which includes examination into whether
the decision lacks sufficient support in the record or involves an erroneous
interpretation of law." Melnyk v. Bd. of Educ. of the Delsea Reg'l High Sch.
Dist., 241 N.J. 31, 40 (2020). The party challenging the administrative action
bears the burden of making that showing. Lavezzi v. State, 219 N.J. 163, 171
(2014). We reverse an agency's factual findings only if "clearly . . . mistaken .
. . and so plainly unwarranted that the interests of justice demand intervention
and correction." Campbell v. N.J. Racing Comm'n, 169 N.J. 579, 587-88 (2001)
(quoting Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 588 (1988)). We defer to
an agency's "[r]easonable credibility determinations." In re Pontoriero, 439 N.J.
Super. 24, 35 (App. Div. 2015). We are not bound by an agency's statutory
interpretations or other legal decisions. Melnyk, 241 N.J. at 40. However,
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"[w]hen resolution of a legal question turns on factual issues within the special
province of an administrative agency, those mixed questions of law and fact are
to be resolved based on the agency's fact finding." Campbell, 169 N.J. at 588.
To determine whether an agency's determination is arbitrary, capricious,
or unreasonable, a reviewing court is generally limited to three inquiries:
(1) whether the agency's action violates express or
implied legislative policies, that is, did the agency
follow the law; (2) whether the record contains
substantial evidence to support the findings on which
the agency based its action; and (3) whether in applying
the legislative policies to the facts, the agency clearly
erred in reaching a conclusion that could not reasonably
have been made on a showing of the relevant factors.
[Allstars, 234 N.J. at 157.]
"When an agency's decision meets those criteria, then a court owes substantial
deference to the agency's expertise and superior knowledge of a particular field."
In re Herrmann, 192 N.J. 19, 28 (2007); see also In re Request to Modify Prison
Sentences, 242 N.J. 357, 390 (2020) ("Wide discretion is afforded to
administrative decisions because of an agency's specialized knowledge.").
"That deferential standard applies to the review of disciplinary sanctions as
well." In re Herrmann, 192 N.J. at 28. Under that standard, the test for
reviewing administrative sanctions is "whether such punishment is so
disproportionate to the offense, in light of all the circumstances, as to be
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shocking to one's sense of fairness." Id. at 28-29 (quoting In re Polk, 90 N.J.
550, 578 (1982)).
We affirm because the Commission's decision, as reflected in the ALJ's
initial decision, meets the criteria of Allstars, 234 N.J. at 157, and Ingrasselino
has failed to demonstrate the Commission's decision was arbitrary, capricious,
or unreasonable; lacked sufficient support in the record; or involved an
erroneous interpretation of law. Substantial credible evidence demonstrated
Ingrasselino frequently and intentionally overstated his patrol mileage and
reported inaccurately other information. In addition to D'Amore's extensive
testimony and report, the ALJ and Commission had before them Ingrasselino's
admission that "a lot of times" and "probably most of the times" he "would
guess" at his mileage instead of accurately recording it. As the ALJ found, "the
sheer number of occasions of false information on his mileage (84 times in the
two years of service, or about 25% of the time that was investigated) indicates
intentional conduct." The ALJ acted within his discretion in rejecting
Ingrasselino's proffered explanations as to why his reported numbers did not
match the recorded numbers and his and his witnesses' testimony regarding bias
because they were not credible or sufficient to explain the volume of
Ingrasselino's misstatements. We see no reason to disturb those findings or the
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decision of the Commission to adopt them. See D.L. v. Bd. of Educ. of Princeton
Reg'l Sch. Dist., 366 N.J. Super. 269, 273 (App. Div. 2004) ("We generally defer
to credibility determinations made by the ALJ who had the opportunity to hear
the testimony and observe the demeanor of the witnesses.").
Considering the ALJ's factual findings, we agree with the ALJ's and
Commission's legal conclusions as to Ingrasselino's code and rule violations.
The ALJ did not by rote find Ingrasselino had committed each of the charged
violations but carefully reviewed each, sustaining some and rejecting others
Ingrasselino's intentional failure to report accurately his mileage and negligent
false reporting of other information, as found by the ALJ, demonstrates
incompetency, failure to perform duties, conduct unbecoming a police officer,
neglect of duty, failure to conform with the policies of the Department, and
failure to perform his duties as required, to the best of his abilities, or promptly,
faithfully, and diligently in violation of the codes and rules cited by the ALJ. A
police officer "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 . . . ." Twp. of Moorestown v. Armstrong, 89 N.J. Super. 560, 566 (App.
Div. 1965); see also In re Carter, 191 N.J. 474, 486 (2007) (same); West N.Y.
v. Bock, 38 N.J. 500, 522 (1962) ("While a single instance may not be sufficient,
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numerous occurrences over a reasonably short space of time, even though
sporadic, may evidence an attitude of indifference amounting to neglect of
duty.").
We defer also to the Commission's decision to terminate Ingrasselino. The
decision to terminate was not arbitrary, capricious, or unreasonable. See In re
Stallworth, 208 N.J. 182, 194 (2011). Nor was it disproportionate to the offense.
In re Herrmann, 192 N.J. at 28-29. Rather, it reflects the consideration that, as
found by the ALJ, "an officer who can't be trusted to complete and to honestly
perform simple but important daily tasks such as involved here, cannot or should
not be trusted with even more complex tasks as required of a police officer."
The Commission was not required to follow the theory of progressive discipline,
especially when the conduct at issue "is unbecoming to the employee's position
or render[ed] the employee unsuitable for continuation in the position." Id. at
33; see also In re Restrepo, 449 N.J. Super. 409, 425 (App. Div. 2017).
We see no error or abuse of discretion in the ALJ's denial of Ingrasselino's
motion for leave to call an expert witness, for the reasons expressed in the ALJ's
comprehensive written opinion. See In re Accutane Litig., 234 N.J. 340, 391-
92 (2018) (finding we review a decision to admit or exclude an expert report
under an abuse-of-discretion standard).
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We find insufficient merit in Ingrasselino's remaining arguments to
warrant discussion in a written opinion, R. 2:11-3(e)(1)(E).
Affirmed.
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