ROBIN POLINSKI VS. BURLINGTON COUNTY PROSECUTOR'S OFFICE OF THE STATE OF NEW JERSEY (L-1695-15, BURLINGTON COUNTY AND STATEWIDE) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE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-0127-16T3
ROBIN POLINSKI,
Plaintiff-Appellant,
v.
BURLINGTON COUNTY
PROSECUTOR'S OFFICE OF
THE STATE OF NEW JERSEY,
and PROSECUTOR ROBERT
D. BERNARDI,
Defendants-Respondents.
__________________________________
Argued May 21, 2018 – Decided August 27, 2018
Before Judges Messano, Accurso and O'Connor.
On appeal from Superior Court of New Jersey,
Law Division, Burlington County, Docket No.
L-1695-15.
Colin G. Bell argued the cause for appellant
(Hankin Sandman Palladino & Weintrob, PC,
attorneys; Colin G. Bell, on the briefs).
Laurel B. Peltzman argued the cause for
respondents (Capehart & Scatchard, PA,
attorneys; Laurel B. Peltzman and Evan
Crook, of counsel and on the brief).
PER CURIAM
Plaintiff Robin Polinski appeals from an August 19, 2016
Law Division order affirming the decision of defendant Robert D.
Bernardi, a former Burlington County prosecutor, to terminate
her from her position as a county investigator of the Burlington
County Prosecutor's office, and dismissing her complaint in lieu
of prerogative writs. We affirm.
In 2014, plaintiff was served with a preliminary notice of
disciplinary action, which set forth seven charges alleging she
had engaged in acts of misconduct and violated certain
provisions of defendant Burlington County Prosecutor's Office's
standard operating procedures (SOPs). The charges arose out of
plaintiff's alleged failure to perform certain tasks on twelve
cases as a trial team investigator, and for her lack of candor
when confronted about her actions by her supervisors and the
internal affairs investigator. The specific charges included
not only that plaintiff had engaged in acts of misconduct and
violated certain SOPs, but also had engaged in conduct
unbecoming a law enforcement officer and insubordination.
After a six day hearing, Bernardi, who served as the
hearing officer, issued a lengthy written decision sustaining
all of the charges. After an additional hearing on the penalty
to impose, Bernardi determined plaintiff's termination was in
order. Plaintiff did not testify at either hearing.
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Plaintiff filed a complaint in lieu of prerogative writs
against defendants in the Law Division, alleging she was
wrongfully terminated in violation of various provisions of the
County Detectives and County Investigators Act (Act), N.J.S.A.
2A:157-1 to -23, and New Jersey's Law Against Discrimination
(LAD), N.J.S.A. 10:5-1 to -49. The court subsequently granted
defendants' motion to sever the LAD claim from all others in the
complaint.
Following trial in this matter, which comprised of lengthy
oral arguments from counsel addressing the evidence adduced
during the disciplinary hearing, the court conducted a de novo
review of the evidence and issued a comprehensive, forty-page
written opinion. The court found defendants proved by a
preponderance of the evidence that plaintiff had committed
almost all of the acts alleged in the charges, including
misconduct. The court further found termination was the
appropriate penalty.
On appeal, plaintiff contends the trial court erred because
it: (1) precluded her from supplementing the record during the
de novo trial; (2) failed to make credibility findings; (3)
found certain charges to have been timely filed when they were
not filed within forty-five days of receiving sufficient
information to form a basis for such charges; (4) determined
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there was sufficient evidence to sustain the charges against
her; and (5) found termination was the appropriate penalty. We
reject these arguments as unsupported and affirm.
Under the Act, the county prosecutor has the power to
appoint county investigators, N.J.S.A. 2A:157-10, as well as to
remove them. N.J.S.A. 2A:157-10.1. N.J.S.A. 2A:157-10.1
provides, in part:
Except as otherwise provided by law, a
county investigator employed by the county
prosecutor shall not be removed from office,
employment or position for political reasons
or for any cause other than incapacity,
misconduct, or disobedience of rules and
regulations established by the prosecutor,
nor shall such investigator be suspended,
removed, fined or reduced in rank from or in
office, employment, or position therein,
except for just cause as hereinbefore
provided . . . .
N.J.S.A. 2A:157-10.7 provides county investigators with the
right of de novo review in the Superior Court for disciplinary
convictions and penalties. A de novo hearing provides a
reviewing court with the opportunity to consider the matter
"anew, afresh [and] for a second time." Romanowski v. Brick
Township, 185 N.J. Super. 197, 204 (Law Div. 1982), aff'd o.b.,
192 N.J. Super. 79 (App. Div. 1983). On de novo review, the
trial court must make its own findings of fact. In re Phillips,
117 N.J. 567, 578 (1990). After hearing a cause de novo, the
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court may either affirm, reverse or modify the hearing officer's
decision. N.J.S.A. 2A:157-10.7.
When evaluating credibility during a de novo review of a
record, the fact the court does not have the benefit of live
testimony does not alter the aforementioned standard of review.
Ruroede v. Borough of Hasbrouck Heights, 214 N.J. 338, 357
(2013). "Although a court conducting a de novo review must give
due deference to the conclusions drawn by the original tribunal
regarding credibility, those initial findings are not
controlling." Ibid. (citing In re Disciplinary Procedures of
Phillips, 117 N.J. 567, 579 (1990)). "Rather, the court
reviewing the matter de novo is called on to 'make reasonable
conclusions based on a thorough review of the record.'" Ibid.(citing Phillips, 117 N.J. at 579).
On appeal from the trial court, this court plays "a limited
role in reviewing the de novo proceeding." Phillips, 117 N.J.
at 579. We decide only whether the trial court's decision was
"supported by substantial credible evidence in the record as a
whole" and was not "arbitrary, capricious or unreasonable."
Ibid. Thus, unless the appellate tribunal finds the trial
court's decision "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. Henry
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v. Rahway State Prison, 81 N.J. 571, 580 (1980) (citing Campbell
v. Department of Civil Serv., 39 N.J. 556, 562 (1963)).
We first address plaintiff's claim the trial court
precluded her from supplementing the record on de novo review.
A week before trial, the court heard extensive oral argument on
defendants' motion to bar plaintiff from introducing additional
evidence at trial. During colloquy, the court noted that the
record can be supplemented with additional evidence in the kind
of matter under review. Although the court did not specifically
cite N.J.S.A. 2A:157-10.7, this statute provides, among other
things, that when the Superior Court is conducting a trial de
novo on an appeal of a county investigator who has been tried
and convicted of any charges, "[e]ither party may supplement the
record with additional testimony subject to the rules of
evidence."
However, when the court asked plaintiff what evidence she
wanted to add to the record, she replied she wished to include
evidence pertaining to the LAD claim; specifically, evidence her
male counterparts in the workplace were not disciplined as
severely as she was for comparable conduct. The court found
because the issue of disparate treatment was relevant to the
severed LAD matter but not the disciplinary one, it would not
permit plaintiff to supplement the record with the proffered
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evidence, to which plaintiff responded, "And that makes sense,
that makes absolute sense to me . . . ."
The court and counsel then turned to other issues but,
later in the proceeding, plaintiff's counsel mentioned that, in
other cases she had handled of a similar nature, parties had
supplemented the record by submitting certifications to the
trial court before it engaged in its de novo review. She then
stated, "Certification of in this case, the plaintiff but the
appellant because she did not testify below, certification as to
any evidence she has not related to the LAD matter. I
understand Your Honor's precursive ruling on that."
Although unclear, read indulgently, we interpret
plaintiff's comment to mean she wanted to submit a certification
on issues pertaining to the disciplinary matter, but believed
the court had barred her from doing so. In fact, the court had
not done so and the court, seemingly puzzled because plaintiff's
previous proffer of evidence was limited to the LAD claim,
stated,
Well, the evidence – [plaintiff is] allowed
to supplement . . . and it's like, okay,
well, what do you got? So that's why I'm
talking to you and if you don't – since
you're not going to do the LAD stuff, I
didn't think there was any real thing for me
to look at. . . .
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Plaintiff's counsel responded that, although plaintiff had
given statements to her supervisors and the internal affairs
investigator about her conduct during the pre-hearing
investigation, she did not testify at the disciplinary hearing
and thus did not have an opportunity to "explain herself." She
argued she wanted to give the trial court the benefit of her
position through submitting a certification.
The court did not make any ruling, and instead probed
counsel about a party's right to supplement the record if he or
she declined to testify at a disciplinary hearing. Instead of
providing argument on the point the court raised, plaintiff
responded, "That's fine. We can, we can just move to oral
[1]
argument on the, you know, violations and the penalty. She'll
have her chance at the LAD trial to testify to her heart's
content."
After turning to other matters, the court summarized all of
its rulings during the argument and, on the issue of
supplementation, noted there was not going to be any because
there had not been a proffer to supplement the record with
evidence pertaining to the disciplinary matter. Plaintiff
1
Plaintiff was referring to the fact the de novo trial on the
disciplinary action was going to consist of oral arguments from
counsel.
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neither commented nor objected to the court's summary and
characterization of its rulings.
Nine days later, the trial commenced and, over the course
of two days, counsel provided oral argument on the evidence
adduced during the disciplinary hearing. Toward the end of the
proceedings on the second day, plaintiff stated she wanted to
testify about such evidence. The court pointed out plaintiff
had not previously requested she supplement the record with
evidence pertaining to the disciplinary charges. However, and
over defendants' objection, the court suggested plaintiff
provide a certification setting forth what she wanted the court
to know about the evidence pertaining to the disciplinary
charges.
The court asked plaintiff if she could provide such
certification the following day, and she advised she could meet
that deadline. Then, realizing it was a Friday, the court gave
plaintiff until the following Monday to submit her
certification. The court also requested a brief on whether
plaintiff had the right to supplement the record with testimony
under the circumstances. Plaintiff did not voice any objection
to the time allotted to complete such tasks.
The following Monday, plaintiff's counsel faxed a letter to
the trial court advising that
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After consultation with our client, she is
satisfied that she responded to the
questions she was asked by the county at her
two [internal affairs] interviews. . . . As
a result, we will not be submitting a brief
on the issue of supplementing the record
with additional testimony. . . . We will be
submitting final closing arguments and
proposed findings by noon tomorrow as
originally contemplated by the court's
order.
The next day, the court faxed a letter to plaintiff's
counsel stating,
Pursuant to your letter dated August 15,
2016, it is my understanding that you are
withdrawing your request to supplement the
record in connection with the [disciplinary
hearing] . . ., either through live
testimony, a certification in lieu of live
testimony, or deposition transcript.
Plaintiff did not object or respond to the court's letter.
On appeal, plaintiff argues reversal is warranted because
the trial court precluded her from testifying, in violation of
N.J.S.A. 2A:157-10.7. The argument is wholly unsupported by the
record. While the court determined plaintiff could not
introduce evidence on the LAD claim – a ruling with which
plaintiff agreed – the court never barred her from introducing
evidence on the disciplinary matter.
When the trial had almost concluded and plaintiff sought
to introduce evidence on the disciplinary action, the court did
request she provide a brief on her right to supplement the
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record. Regardless of the ultimate merits of plaintiff's right
to supplement the record, the court's request that plaintiff
brief the issue was legitimate and clearly done in an effort to
make the correct decision. Plaintiff did not object to
supplying a brief (in addition to a certification), but later
determined she did not need to and withdrew her request to
supplement the record.
Plaintiff also complains the court did not give her
sufficient time to provide the subject brief and certification.
However, she never advised the court the time permitted to
submit these pleadings was unworkable, not to mention her letter
to the court informing she was withdrawing her request to
supplement the record indicated she was doing so because, for
substantive reasons, there was no need for supplementation. In
sum, under the circumstances, there is no basis for her
contention a reversal is warranted on the ground the court
wrongfully precluded her from supplementing the record with
additional evidence.
Plaintiff next argues the court "refused" to make
credibility determinations, warranting reversal. We disagree.
During oral argument on defendants' motion to bar plaintiff from
supplementing the record, the court did state that it would not
make any credibility determinations. However, it is plain from
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its written decision, which is replete with references to its
assessment of credibility, that the court in fact made such
determinations. It is apparent the court reviewed the
applicable law before making its findings of fact and
conclusions of law and realized it had to evaluate credibility.
We reject the assertion there was insufficient evidence to
support plaintiff's termination. To the extent this argument
challenges the sufficiency of the evidence supporting the trial
court's findings and conclusions, we again note our role on
appeal is limited. We review whether the decision was based on
substantial, credible evidence, considering the record as a
whole. Phillips, 117 N.J. at 579 (citing Henry, 81 N.J. at 580,
Campbell, 39 N.J. at 562). Our review of the record and the
findings and conclusions expressed by the trial court in its
comprehensive decision compels us to conclude there is no ground
on which to interfere with its finding plaintiff had engaged in
conduct warranting her termination.
Plaintiff's remaining contentions are without sufficient
merit to warrant discussion in a written opinion. R. 2:11-
3(e)(1)(E).
Affirmed.
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