IN THE MATTER OF FORTUNATO MONTELLA, BOROUGH OF STANHOPE (CIVIL SERVICE COMMISSION)

NOT FOR PUBLICATION WITHOUT THE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-3143-16T4
IN THE MATTER OF
FORTUNATO MONTELLA,
BOROUGH OF STANHOPE.
___________________________
Argued November 13, 2018 – Decided November 27, 2018
Before Judges Haas and Mitterhoff.
On appeal from the Civil Service Commission, Docket
Nos. 2015-2541 and 2016-2558.
Robert J. Merryman argued the cause for appellant/
cross-respondent Borough of Stanhope (Apruzzese,
McDermott, Mastro & Murphy, PC, attorneys; Robert
J. Merryman, of counsel and on the brief; Deborah
Bracaglia, on the brief).
Peter B. Paris argued the cause for respondent/cross-
appellant Fortunato Montella (Law Offices of David
Beckett, attorneys; Peter B. Paris, of counsel and on the
brief).
Pamela N. Ullman, Deputy Attorney General, argued
the cause for respondent Civil Service Commission
(Gurbir S. Grewal, Attorney General, attorney; Melissa
Dutton Schaffer, Assistant Attorney General, of
counsel; Pamela N. Ullman, on the brief).
PER CURIAM
The Borough of Stanhope (Borough) appeals from the October 22, 2015
decision of the Civil Service Commission (Commission) that: (1) held that the
Borough's decision to remove Fortunato Montella from his position as a
Borough police officer was not justified; (2) modified the sixty working day
suspension recommended by the Administrative Law Judge (ALJ) for Montello
to a 120 working day suspension; and (3) ordered Montella's reinstatement with
appropriate back pay, benefits, and seniority following the completion of his
suspension. The Borough also challenges the Commission's final decision of
March 24, 2017, which established the amount of mitigated back pay and
benefits due Montella following his return to work.
Montella has filed a cross-appeal, and argues that the Commission should
not have disturbed the sixty working day suspension set by the ALJ. He also
asserts that he was entitled to additional back pay and benefits.
Having considered the parties' arguments in light of the record and
applicable law, we affirm the Commission's decisions in all respects.
The parties are fully familiar with the underlying facts of this case as
thoroughly set forth in the ALJ's initial decision following a four-day hearing.
Therefore, a summary will suffice here.
A-3143-16T4
2
On September 2, 2014, Montella was conducting routine traffic stops in
the Borough. After completing this assignment, he intended to drive his patrol
car to the Borough-approved car wash in Roxbury, which was about 1.5 miles
away. After that, he planned to take his lunch break.
Montella's sister called him as he was in the midst of his last traffic stop
for the shift. Montella testified that his sister was twelve years younger than
him and, although she was an adult, she frequently called him throughout the
day for assistance and guidance. The sister told Montella that she had been in a
car accident in Roxbury, was not hurt, and she and the other driver were in the
parking lot of a bar that Montella knew was near the car wash. Montella to ld
his sister to "call the cops" in Roxbury to report the accident.
After completing the traffic stop, Montella began driving to Roxbury.
Along the way, he debated whether he should go to the car wash as planned, or
first check on his sister at the nearby parking lot. As he drove through Netcong,
the town that lay between Stanhope and Roxbury, Montella activated his
emergency lights three times in order to get past slower moving traffic. He also
exceeded the posted speed limit.
When Montella reached a jughandle near the car wash, he told the
Borough dispatch that he was going to be at the car wash. However, when he
A-3143-16T4
3
saw there was no wait at the car wash, and that the Roxbury police had not yet
responded to the bar parking lot, Montella went there instead. When he arrived,
he spoke to his sister and the other driver. Montella's sister stated she was at
fault for the accident. The other driver did not want to involve the police, but
Montella told them that even though it was a minor accident, the police needed
to be called. Montella then called dispatch, advised he was at the scene of his
sister's accident, obtained the number for the Roxbury Police Department, and
reported the accident. He then returned to his patrol car, and had no further
interaction with his sister or the driver.
While he was waiting for the Roxbury police, Montella took a call from
the Netcong Chief of Police. Netcong had received a report that a Stanhope
officer had been speeding and the Chief called the Borough, which advised that
Montella was the officer on duty. Montella apologized to the Netcong Chief
and explained that he had been on the way to his sister's accident scene.
Montella then called his own Chief and told him that he might be receiving a
call from his counterpart in Netcong, and explained why. Thus, the Borough
Chief was aware that Montella had gone to assist his sister.
Montella stayed at the bar parking lot until after the Roxbury police left.
He drove to the car wash and, after taking care of that task, began his lunch
A-3143-16T4
4
break. While waiting for his food order, Montella went to his patrol car and
completed "a Computer Aided Dispatch (CAD) report." When, as was the case
here, an officer is involved in a call that does not turn into an "incident" or result
in the issuance of a ticket, he or she must type a short "electronic report"
describing what happened, using a laptop computer located in the patrol car.
Montella often had difficulty determining what information to include in
the CAD reports, which were then reviewed by a sergeant. If the sergeant
believed the report was inaccurate or left out details, the sergeant would tell
Montella to redo it. On this occasion, Montella typed the following CAD report
describing the event with his sister:
I, Ofc. F. Montella was near the Roxbury car wash
when I was notified that there was a motor vehicle
accident with the vehicles parked at [Roxbury] bar.
Both parties were out of their vehicles and stated that
they were okay. I called Roxbury police via cell phone
and waited on scene until Roxbury Patrol arrived.
Upon their arrival I cleared. No further action taken.
This report was inaccurate because Montella was in the Borough when he was
notified by his sister of the accident. In addition, he stayed in the parking lot
for several minutes after the Roxbury officers left the scene.
Although the Borough Chief of Police had been aware that Montella went
to the accident scene before he prepared the CAD report, the Chief subsequently
A-3143-16T4
5
charged Montella with conduct unbecoming an officer, and sought to terminate
his employment for filing a false police report. The Chief also alleged that
Montella should be dismissed for "other sufficient cause," specifically,
improperly activating the patrol car's emergency lights, and speeding. After the
charges and termination were upheld at a departmental hearing, Montella
appealed his removal to the Commission, which referred the matter to the Office
of Administrative Law for hearing as a contested case.
At the conclusion of the hearing, the ALJ rendered a written initial
decision recommending a reduced penalty. The ALJ found that Montella "did
not try or intend to deceive anyone in his or any other police department with
his CAD statement." In this regard, the ALJ noted that the Borough Chief of
Police knew he had been at the scene of his sister's accident in Roxbury before
he completed the report. Finding that "[i]t strains logic to believe that
[Montella] intended to make a false police statement when he wrote the cryptic
CAD report on the" matter, the ALJ concluded that Montella "did not falsify the
CAD report but did engage in drafting a sloppy, short narrative , under
circumstances that included being on his lunch hour and paying insufficient
attention to the details of this . . . event." The ALJ further found that Montella's
use of the emergency lights and exceeding the speed limit were contrary to
A-3143-16T4
6
department policy and, therefore, warranted disciplinary action. After
considering Montella's past disciplinary record,1 the ALJ recommended the
imposition of a sixty working day suspension without pay.
Both parties filed exceptions. In its October 22, 2015 decision, the
Commission disagreed with the ALJ's conclusion that Montella's CAD report
was merely "sloppy" and, instead, found it was false because Montella knew he
was in the Borough when he learned of the accident and because, contrary to
what he wrote in the report, he stayed at the accident scene in his police car after
the Roxbury police left the parking lot. The Commission further found t hat
"falsification of a record by a Civil Service employee [was] a serious offense"
that warranted the imposition of a more severe penalty than that recommended
by the ALJ.
After considering all of the facts of the case, including Montella's desire
to assist his sister and his prior disciplinary record, the Commission decided to
double the penalty proposed by the ALJ to a 120 working day suspension rather
1
The Borough had disciplined Montella eight times during his eleven-year
career as a police officer. He was suspended for four days in January 2010 for
withholding information regarding an offense he had witnessed; for seven days
in July 2009 for calling out sick while he was actually on vacation; and for eight
days in January 2011 for failing to make a mandatory arrest during, and prepare
required paperwork concerning, a domestic violence investigation. The
Borough also reprimanded Montella for several other infractions over the years.
A-3143-16T4
7
than terminating him. The Commission noted that this major suspension would
"serve as an indication that any further infractions committed by [Montella] will
potentially subject him to removal from employment."
When the parties could not agree on the amount of mitigated back pay and
benefits due to Montella, the Commission rendered its March 24, 2017 decision
addressing this issue. After considering the Borough's and Montella's written
submissions concerning, among other things, Montella's efforts to find suitable
work, the unemployment compensation he received, and the income he was able
to earn while he was suspended, the Commission found that Montella was
entitled to $34,862.21 in back pay, and an additional $2,825.82 for maintaining
his health insurance. The Borough's appeal, and Montella's cross-appeal,
followed.2
On appeal, the Borough argues that the Commission erred by failing to
terminate Montella's employment and in concluding that his efforts at finding
work during his suspension were sufficient to justify the award of mitigated back
pay. In his cross-appeal, Montella asserts that the Commission should not have
doubled his suspension, and should have awarded him additional back pay and
2
On May 8, 2018, another panel of this court granted the Borough's motion to
stay its payment of the back pay award pending appeal.
A-3143-16T4
8
health care benefits. We disagree with these contentions and affirm
substantially for the reasons that are thoroughly detailed in the Commission's
October 22, 2015, and March 24, 2017 comprehensive written decisions. We
add the following comments.
Our scope of review of an administrative agency's final determination is
limited. In re Herrmann, 192 N.J. 19, 27 (2007). "[A] strong presumption of
reasonableness attaches" to the agency's decision. In re Carroll, 339 N.J. Super.
429, 437 (App. Div. 2001) (quoting In re Vey, 272 N.J. Super. 199, 205 (App.
Div. 1993), aff'd, 135 N.J. 306 (1994)). Additionally, we give "due regard to
the opportunity of the one who heard the witnesses to judge . . . their credibility."
In re Taylor, 158 N.J. 644, 656 (1999) (quoting Close v. Kordulak Bros., 44 N.J.
589, 599 (1965)).
The burden is upon the appellant to demonstrate grounds for reversal.
McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 563 (App. Div. 2002);
see also Bowden v. Bayside State Prison, 268 N.J. Super. 301, 304 (App. Div.
1993) (holding that "[t]he burden of showing the agency's action was arbitrary,
unreasonable[,] or capricious rests upon the appellant"). To that end, we will
"not disturb an administrative agency's determinations or findings unless there
is a clear showing that (1) the agency did not follow the law; (2) the decision
A-3143-16T4
9
was arbitrary, capricious, or unreasonable; or (3) the decision was not supported
by substantial evidence." In re Application of Virtua-West Jersey Hosp.
Voorhees for a Certificate of Need, 194 N.J. 413, 422 (2008).
When an agency decision satisfies such criteria, we accord substantial
deference to the agency's fact-finding and legal conclusions, acknowledging
"the agency's 'expertise and superior knowledge of a particular field.'" Circus
Liquors, Inc. v. Governing Body of Middletown Twp., 199 N.J. 1, 10 (2009)
(quoting Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992)).
We will not substitute our judgment for the agency's even though we might have
reached a different conclusion. In re Stallworth, 208 N.J. 182, 194 (2011); see
also Taylor, 158 N.J. at 656-57 (discussing the narrow appellate standard of
review for administrative matters).
Our deference to agency decisions "applies to the review of disciplinary
sanctions as well." Herrmann, 192 N.J. at 28. As our Supreme Court recently
made clear, "so long as the discipline . . . falls within a continuum of reasonable
outcomes, we must defer, for we have no charge to substitute our judgment for
that of the statutorily authorized decisionmaker." In re Hendrickson, ___ N.J.
___ (2018) (slip op. at 29).
A-3143-16T4
10
Applying these principles here, we discern no basis for disturbing the
Commission's decision to impose a major, 120 working day suspension, with
mitigated back pay and benefits. The Commission "is the entity charged with
keeping State-government-wide standards of employee performance relatively
consistent in disciplinary matters[.]" Herrmann, 192 N.J. at 37. As the Supreme
Court held in Herrmann:
A reviewing court should alter a sanction imposed by
an administrative agency only "when necessary to bring
the agency's action into conformity with its delegated
authority. The Court has no power to act independently
as an administrative tribunal or to substitute its
judgment for that of the agency" . . . In light of the
deference owed to such determinations, when
reviewing administrative sanctions, "the test . . . is
'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.'" The threshold of
shocking the court's sense of fairness is a difficult one,
not met whenever the court would have reached a
different result.
[Id. at 28-29 (second alteration in original) (citations
omitted) (quoting In re Polk, 90 N.J. 550, 578 1982)).]
Under the idiosyncratic circumstances of this case, the Commission
reasonably found that removal of Montella was too severe a discipline action,
especially where the Borough Chief of Police knew that Montella had gone to
the scene of his sister's accident prior to his completion of the CAD report. In
A-3143-16T4
11
the ordinary case, an officer would have been permitted to correct the report if
it was misleading or incomplete. However, the Chief did not give Montella that
opportunity here. On the other hand, the Commission properly determined that
the sixty working day suspension recommended by the ALJ was too lenient in
light of the seriousness nature of Montella's actions, which involved him
submitting a false CAD report, misusing his patrol car's emergency lights, and
speeding.
Although we do not condone Montella's actions, we believe that in light
of the unique facts of this case, the Commission struck an appropriate balance
between the competing concerns involved. The 120 working day suspension,
which was the most severe penalty short of suspension that the Commission
could impose, N.J.A.C. 4A:2-2.4(a), was clearly not so disproportionate to the
infractions involved in this case as to be shocking to one's sense of fairness.
We also perceive no basis for altering the Commission's award of
mitigated back pay and payment for health benefits to Montella following the
conclusion of his lengthy suspension. Contrary to the parties' competing
contentions, the Commission followed the governing regulation, N.J.A.C. 4A:2 -
2.10, in considering Montella's request for back pay and benefits. It carefully
examined the documentation each party submitted concerning Montella's search
A-3143-16T4
12
for suitable work during the suspension, his receipt of unemployment
compensation benefits, and his attempt to secure health insurance.
At the conclusion of its review, the Commission made findings of fact and
conclusions of law that were firmly grounded in the record. As a result, the
Commission's determinations on these issues were supported by substantial
credible evidence in the record and were neither arbitrary, capricious, or
unreasonable.
Affirmed.3
3
In light of this determination, we vacate the May 8, 2018 order staying the
Commission's decision.
A-3143-16T4
13