IN THE MATTER OF TROOPER 1 WILLIAM CARVOUNIS 6165 (NEW JERSEY DIVISION OF STATE POLICE) ( 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NOT FOR PUBLICATION WITHOUT THE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-4438-17T2
IN THE MATTER OF TROOPER 1
WILLIAM CARVOUNIS #6165.
_______________________________
Argued April 30, 2019 – Decided June 3, 2019
Before Judges Hoffman, Suter and Geiger.
On appeal from the New Jersey Division of State
Police, Docket No. 2014-0015.
Christopher A. Gray argued the cause for appellant
William Carvounis (Sciarra & Catrambone, LLC,
attorneys; Charles J. Sciarra, of counsel; Christopher A.
Gray, on the briefs).
Christopher J. Hamner, Deputy Attorney General,
argued the cause for respondent Division of State
Police (Gurbir S. Grewal, Attorney General, attorney;
Melissa H. Raksa, Assistant Attorney General, of
counsel; Christopher J. Hamner, on the brief).
PER CURIAM
Appellant New Jersey State Trooper William Carvounis appeals from the
May 16, 2018 final decision of Acting Superintendent Patrick J. Callahan that
terminated Carvounis for misconduct. We affirm.
I.
The record discloses the following facts and procedural history leading to
the disciplinary action under review.
Carvounis was charged with violating three of the Rules and Regulations
of the Division of State Police (Division). Charge 1 alleged a violation of Article
XI, Section 4, which reads: "No member shall violate the laws, statutes or
ordinances of the United States, its territories or possessions or of any state or
any political subdivision thereof." Charge 2 alleged a violation of Article VI,
Section 2.b., which reads: "No member shall act or behave in an unofficial or
private capacity to the personal discredit of the member or to the discredit of the
Division." Charge 3 alleged a violation of Article XIII, Section 15, which reads:
"No member should use or attempt to use such member's official position to
secure unwarranted privileges or advantages for such member or others."
Carvounis contested the charges. The matter was transmitted to the Office
of Administrative Law (OAL) as a contested case and assigned to an
Administrative Law Judge (ALJ) for hearing. Hearings were held on July 23
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and July 24, 2015. The record remained open for submission of post-hearing
briefs and documentary evidence, and closed on February 10, 2016. Following
multiple extensions, the ALJ issued her Initial Decision on April 5, 2018.
The ALJ made the following factual findings pertinent to our analysis:
Many of the material facts in this matter are not
in dispute. In January 2014, Carvounis was assigned to
the Executive Protection Bureau of the Governor's
Security Unit. On January 8, 2014, he traveled with
friends to a Cabela's Outfitters, a sporting goods store
in Hamburg, Pennsylvania. While at the store he
removed items from their packaging and placed them in
his cargo-pants pockets. After removing the packaging,
he placed the empty packages in other parts of the store.
He also took two differently priced items and switched
packages so that a binocular strap valued at $29.99 was
incorrectly priced at $19.99. Further, as he walked
toward the checkout he removed the price tag on a cap
and placed the cap on his head.
The total cost of the items concealed from
Cabela's at checkout was $277.38. At the checkout
Carvounis purchased approximately $200 worth of
merchandise, but did not take the concealed items from
his pocket, nor did he inform the cashier that he was
purchasing the cap on his head. As he tried to exit the
store, a Cabela's loss-prevention agent and assistant
store manager stopped him, along with an officer of the
Tilden Township Police Department. He was taken to
the asset-protection office in the store and, after an
interview, charged with retail theft under Pennsylvania
law. Specifically, he was charged with two counts of
retail theft, a Class B misdemeanor. On February 10,
2014, Carvounis applied for and was accepted into
Pennsylvania's Accelerated Rehabilitative Disposition
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(ARD) program. He completed all conditions of the
program on August 25, 2014, and all charges were
dismissed and his arrest records were expunged.
....
The Division then presented the testimony of
Barbara Smith, who was a loss-prevention agent for
Cabela's at the time of the incident. She described her
duties at the store in Hamburg and the store's extensive
surveillance-camera footage. It was that surveillance-
camera coverage that led to her spotting Carvounis's
activity in the store that day. She noticed him as she
was monitoring the surveillance cameras. Smith
testified as to her observations of Carvounis and the
report on the incident that she authored. After
observing his actions in secreting items in his cargo
pants, placing the packaging for those items throughout
the store, and changing prices on items, she and other
employees and Officer Schwoyer confronted him after
he had exited the store. She stated that it is Cabela's
policy to wait until the patron exits the store, in the
event the patron changes his mind and returns with the
items. Carvounis was then escorted to an office on the
premises where he was interviewed by . . . assistant
manager for asset protection Jared Taggart, and
Schwoyer.
At the start of the interview Carvounis was asked
for his identification, and when he produced his driver's
license he also produced his Division ID. Taggart
returned them to him, and he was asked if he had
weapons on his person. Schwoyer then took
Carvounis's gun and a knife from him, and the interview
continued. According to Smith, Carvounis first stated
that he did not know why he was there, and he was
asked to empty his pockets. When the "product" was
taken out of his pockets he first stated that he had
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brought the eight stolen items in with him. He was then
confronted with the empty packaging that Taggart had
retrieved from the retail floor. Smith stated that
Carvounis stopped arguing at that point and began to
describe his duties at the Division, including being on
the Governor's detail. He also stated that the items were
for his use on the job, and that he needed to purchase
them himself due to budgetary cutbacks. Carvounis
asked that he be charged with an amount under $150,
which constituted a lesser offense under Pennsylvania
law. Smith further testified that Carvounis asked
Schwoyer for professional courtesy in the matter. At
the end of the interview Carvounis left with Schwoyer,
and he was charged with retail theft, as Smith put it,
like anyone else.
....
In further discussing the statements he made in
the Cabela's interview, Carvounis described his state of
mind as being in shock. He said his reactions were the
result of panic as everything came crashing down on
him. He did admit to playing "dumb" at first. He said
his State Police ID came out of his wallet when he
produced his driver's license. According to Carvounis,
it was Schwoyer who asked him for more information
on his duties as a State trooper. As to his request that
he not be charged with a theft over $150, he recalled
Taggart explaining what offenses he could be charged
with, and his request was merely in response to that
explanation. As to his request for professional
courtesy, he stated that he asked everyone in the
interview room for help with his situation.
Carvounis testified that the theft occurred during
a period of extreme personal and work stress in his life.
It was his first day off in a while, and he and his family
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were going through tough financial times as he
attempted to help his mother maintain her residence.
The ALJ found Carvounis guilty of Charges 1 and 3, but not guilty of
Charge 2 because he was not acting in his official capacity. The ALJ explained
that Carvounis "was on his day off, not on duty, and not performing his official
duties. While he invoked his status as a State trooper in discussions at Cabela's,
he was not acting in his official capacity." While recognizing the infractions
were serious, the ALJ found the evidence presented in mitigation of penalty to
be substantial. Taking into account Carvounis's service record, acceptance of
responsibility, and character testimonials, the ALJ determined the "more
appropriate penalty" was a suspension until the date of the Initial Decision.
Both parties filed written exceptions. On May 16, 2018, the Acting
Superintendent issued a final decision adopting in part, rejecting in part, and
modifying in part the Initial Decision. The Acting Superintendent adopted the
ALJ's guilty findings on Charges 1 and 3, rejected the not guilty finding on
Charge 2, and modified the recommended penalty of suspension to termination
from employment with the Division. In reaching those determinations, the
Acting Superintendent engaged in the following analysis:
The record in this case is clear that Trooper
Carvounis'[s] actions failed to meet these exacting
standards. It is undisputed that he engaged in
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shoplifting. Further, when confronted with this crime,
he initially stated that he did not know the reason that
he was detained from leaving the sporting goods store.
In addition, as found by [the ALJ,] he contended "that
the stolen items were for his use at work due to
budgetary cutbacks." Further, he sought favorable
treatment due to his status as a State Trooper.
....
In this matter, [the ALJ] determined, based upon
the above-conduct, that Trooper Carvounis "acted in a
manner that discredited himself." Therefore, the
prerequisite for a guilty determination of Charge #2 has
been satisfied. Similarly, Trooper Carvounis'[s]
aforementioned conduct also satisfies the separate
element of this Charge of acting "to the discredit of the
Division[.]"
Moreover, the basis for [the ALJ's] not guilty
finding for this charge was that Trooper Carvounis was
off duty. However, there is no requirement in Charge
#2, Article VI, Section 2.b to [be] acting in an official
capacity. It appears that [the ALJ] inadvertently
applied the official capacity standard set out in Article
VI, Section 2(a). Thus, the duty status of Trooper
Carvounis at the time of the theft is irrelevant for the
purpose of assessing his guilt to Charge #2.
Therefore, for all of the above-reasons, [the
ALJ's] not guilty determination as to Charge #2 is
hereby rejected.
....
In this case, [the ALJ] recommended the
suspension of Trooper Carvounis. However, in light of
the nature of the actions of Trooper Carvounis, such a
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penalty is insufficient. As previously noted, a State
Trooper is held to a higher code of conduct, whether on
or off duty. In this case, Trooper Carvounis failed to
meet this threshold.
There is no dispute that Trooper Carvounis
engaged in shoplifting, an illegal act, of goods that
exceeded $200. In Pennsylvania, this conduct is
classified as a misdemeanor offense. However, the
equivalent offense in New Jersey is a fourth degree
crime. N.J.S.A. 2C:20-11(c)(3). Thus, this conduct
alone, shoplifting, constitutes a serious breach of the
standard of behavior required of a State Trooper.
However, Trooper Carvounis'[s] misconduct did not
end upon his detention by store employees and the local
police officer for shoplifting as he exited the sporting
goods store. Rather, he compounded his misconduct
through a series of additional actions.
Trooper Carvounis initially informed the store
employees that he did not know the reason he was
detained after exiting the store. This comment belies
the various items that he had concealed in the pockets
of his pants. Moreover, he stated that the goods in his
possession were his own property. This assertion was
contradicted by the empty packaging retrieved by the
store employee. In addition, he also maintained that he
needed these items for his position as a State Trooper
due to budget cuts. Further, he contended that he told
the cashier to charge him for the hat that was on his
head. This assertion was directly contradicted by the
store employee. Trooper Carvounis also requested that
the store lower the value of the goods so that the total
value would not exceed the threshold for a more serious
criminal charge.
Trooper Carvounis also engaged in additional
unacceptable conduct. He sought to utilize his position
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for favorable treatment. During his interview with the
store employees and Officer Schwoyer, Trooper
Carvounis discussed his duties as a State Trooper and
requested "professional courtesy."
....
Here, Trooper Carvounis, a law enforcement
officer in this State, failed to adhere to the laws by
engaging in shoplifting. Further, his subsequent
misconduct also violated the standards of integrity and
professionalism required of a State Trooper. Trooper
Carvounis'[s] actions stand in direct contradiction to the
conduct expected and required of State Troopers. In
addition, his misconduct jeopardized the public's trust
in the State Police.
Therefore, for all the above-reasons, the penalty
of suspension recommended by [the ALJ] must be
modified. In light of the gravity of Trooper
Carvounis'[s] actions, the appropriate penalty in this
matter is termination from employment with the New
Jersey State Police.
This appeal followed.
II.
Established precedents guide our task on appeal. Appellate review of an
administrative agency decision is limited. In re Herrmann, 192 N.J. 19, 27
(2007). A strong presumption of reasonableness attaches to the Superintendent's
decision. In re Carroll, 339 N.J. Super. 429, 437 (App. Div. 2001). The burden
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is on appellant to demonstrate grounds for reversal. McGowan v. N.J. State
Parole Bd., 347 N.J. Super. 544, 563 (App. Div. 2002).
"Appellate courts ordinarily accord deference to final agency actions,
reversing those actions if they are 'arbitrary, capricious or unreasonable or [if
the action] is not supported by substantial credible evidence in the record as a
whole.'" N.J. Soc'y for the Prev. of Cruelty to Animals v. N.J. Dep't of Agric.,
196 N.J. 366, 384-85 (2008) (alteration in original) (quoting Henry v. Rahway
State Prison, 81 N.J. 571, 579-80 (1980)).
Under the arbitrary, capricious, and unreasonable standard, our scope of
review is guided by three major inquiries: (l) whether the agency's decision
conforms with relevant law; (2) whether the decision is supported by substantial
credible evidence in the record; and (3) whether in applying the law to the facts,
the administrative agency clearly erred in reaching its conclusion. In re
Stallworth, 208 N.J. 182, 194 (2011).
When an agency decision satisfies such criteria, we accord substantial
deference to the agency's fact-finding and legal conclusions, while
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,
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513 (1992)). We will not substitute our judgment for the agency's even though
we might have reached a different conclusion. Stallworth, 208 N.J. at 194.
This same deferential standard applies to our review of the agency's choice
of a disciplinary sanction. Id. at 195. We review discipline only 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." Ibid. (quoting
In re Carter, 191 N.J. 474, 484 (2007)).
III.
With those principles in mind, we turn to Carvounis's contentions.
Carvounis argues the Acting Superintendent's decision to modify the penalty
from suspension to termination is shocking to one's sense of fairness. We
disagree.
"[T]he responsibility for determining whether a trooper has committed a
violation of the Rules and Regulations, and the discipline to be imposed therefor,
are plainly matters of inherent managerial prerogative to be discharged by the
Superintendent and his designated staff." State v. State Troopers Fraternal
Ass'n, 134 N.J. 393, 416 (1993). The Court noted that unlike the discipline of
State employees in other departments, "the discipline of state troopers implicates
not only the proper conduct of those engaged in the most significant aspects of
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law enforcement, involving the public safety and the apprehension of dangerous
criminals, but also the overall effectiveness, performance standards, and morale
of the State Police." Id. at 416-17.
Law enforcement officers are held to a higher standard of conduct than
other public employees, and are obliged to act in a reasonable manner. In re
Phillips, 117 N.J. 567, 576-77 (1990). Law enforcement officers "must present
an image of personal integrity and dependability in order to have the respect of
the public." Moorestown Twp. v. Armstrong, 89 N.J. Super. 560, 566 (App.
Div. 1965). "Every police officer has an inherent duty to obey the law" and
serve with "honesty, integrity and good faith." State v. Stevens, 203 N.J. Super.
59, 65, 66 (Law Div. 1984). This higher standard of conduct applies to the
behavior of law enforcement officers on or off-duty. Phillips, 117 N.J. at 577.
The theft of merchandise exceeding $200 in value would have been a
fourth-degree crime if committed in New Jersey. N.J.S.A. 2C:20-11(c)(3). The
fact that the charge was diverted into a program similar to pre-trial intervention,
dismissed after completion of the diversionary program, and subsequently
expunged, does not diminish its seriousness or the impact on the Division.
Unfortunately, Carvounis's misconduct did not end with the theft. He
compounded his misconduct by falsely claiming the stolen items belonged to
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him, and then claiming the stolen items were needed for work due to budgetary
cutbacks. He further compounded his misconduct by requesting special
treatment in the form of professional courtesy by virtue of his position.
We recognize that Carvounis was never previously disciplined and was
respected in the Division. While the absence of prior discipline was considered
by the Acting Superintendent, the serious nature of Carvounis's conduct led to
the decision to terminate him.
"[P]rogressive discipline is a worthy principle but it is not subject to
universal application when determining a disciplined employee's quantum of
discipline." Herrmann, 192 N.J. at 36. "[P]rogressive discipline is not a
necessary consideration . . . when the misconduct is severe, when it is
unbecoming to the employee's position or renders the employee unsuitable for
continuation in the position, or when application of the principle would be
contrary to the public interest." Id. at 33. "Our appellate courts also have upheld
dismissal of employees, without regard to whether the employees have had
substantial past disciplinary records, for engaging in conduct that is unbecoming
to the position." Id. at 34.
"We are mindful of the special status of the Division of State Police and
the special standards of discipline that apply to its members, and of the
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Superintendent's duty to maintain discipline among the troopers as one means
of promoting the public interest and safety." Div. of State Police v. Jiras, 305
N.J. Super. 476, 481 (App. Div. 1997) (citations omitted). Considering the
Division's need to maintain order and discipline among its troopers, we decline
to substitute our judgment for that of the Acting Superintendent, "especially
where considerations of public policy are implicated." Id. at 482. We see no
reason to depart from that standard in this case.
The findings and conclusions reached by the Acting Superintendent are
supported by substantial, credible evidence in the record. Termination for
Charges 1, 2, and 3 is not so disproportionate to the offenses as to be shocking
to our sense of fairness, and we see no reason to disturb the Acting
Superintendent's decision. The final decision was not arbitrary, capricious, or
unreasonable.
Carvounis's remaining arguments are without sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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