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                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
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                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-3046-15T3


FREDDIE MITCHELL,

        Plaintiff-Respondent,

v.

BOROUGH OF ROSELAND
POLICE DEPARTMENT,

     Defendant-Appellant.
_____________________________________

              Argued February 14, 2017 – Decided           March 15, 2017

              Before Judges Yannotti and Fasciale.

              On appeal from Superior Court of New Jersey,
              Law Division, Essex County, Docket No. L-8140-
              14.

              R. Scott Fahrney argued the cause for
              appellant (Kaufman, Semeraro & Leibman,
              L.L.P., attorneys; Mr. Fahrney and Mark J.
              Semeraro, on the brief).

              Respondent has not filed a brief.

PER CURIAM

        Defendant Borough of Roseland Police Department (RPD) appeals

from an order entered by the Law Division on February 19, 2016,

which denied its motion for reconsideration of an order dated
December 17, 2015, setting aside a reprimand and an eight-day

suspension that the RPD imposed upon plaintiff Freddie Mitchell.

We reverse.

     We   briefly   summarize   the       relevant      facts    and   procedural

history. Since approximately 2000, Mitchell has been an officer

in the RPD. On January 26, 2012, the RPD charged Mitchell with

insubordination, specifically, failing and refusing to comply with

an order of Captain Kevin M. Kitchin to sign a performance notice

regarding Mitchell's use of sick leave in 2011. Mitchell pled not

guilty to the charge, and on April 9, 2012, a disciplinary hearing

was conducted on the matter.

     Thereafter, the hearing officer issued a written decision,

finding Mitchell guilty of insubordination. The hearing officer

recommended an eight-day suspension without pay, with a warning

that similar conduct in the future will result in more severe

disciplinary punishment. On May 7, 2012, the RPD's Chief of Police,

Richard    J.    McDonough,     accepted          the     hearing      officer's

recommendation, and issued a written reprimand and an eight-day

suspension without pay.

     Mitchell then filed an action in lieu of prerogative writs

in the Law Division seeking a trial de novo pursuant to N.J.S.A.

40A:14-150. The court issued a written decision on February 18,

2014,   noting   that   a   transcript      had    not    been    made    of   the

                                      2                                   A-3046-15T3
disciplinary   hearing,   and   the   hearing   officer's   decision   and

copies of the exhibits did not provide an adequate record for

review of the disciplinary action. The court entered an order

dated March 5, 2014, remanding the matter to the RPD for a

rehearing on the record.

     The hearing took place on June 13, 2014. Sergeant Charles

Ribaudo testified that the RPD conducted an audit of its officers'

use of sick time in 2011, and thereafter issued performance notices

to several officers, including Mitchell. Ribaudo explained that

when he provides such a notice to an officer, he meets with the

officer to go over the narrative section of the document.        Ribaudo

then signs the notice where it states, "Issued by _________,"

and the officer signs where     it    states,   "Received by ________."

     Ribaudo testified that on January 25, 2012, he met with

Mitchell to give him the performance notice about his use of sick

time in 2011. Mitchell refused to sign the notice. Ribaudo said

he explained to Mitchell that by signing the notice, he was only

acknowledging receipt of the document. Mitchell told Ribaudo he

did not accept the reprimand and he was not going to sign the

notice.

     Mitchell asked Ribaudo about the reasons for the reprimand,

but Ribaudo could not answer Mitchell's question because he did

not prepare the notice. He told Mitchell he would seek an answer

                                      3                          A-3046-15T3
for him. Ribaudo then reported the matter to Kitchin, and another

meeting was scheduled to give Mitchell a second chance to sign the

document.

     Ribaudo testified that he and Kitchin met with Mitchell on

January 26, 2012. At the meeting, Kitchin ordered Mitchell to sign

for receipt of the performance notice. Mitchell refused to comply

with Kitchin's order. According to Ribaudo, Mitchell did not

indicate he was going to speak with a union representative until

he was leaving the meeting.

     Kitchin   testified   that   in   January   2012,   three   officers

received performance notices regarding their use of sick leave in

2011. According to Kitchin, the notices are a training tool, which

recognize good performance or suggest the need to "correct the

things that [are not] so good so they [do not] turn into major

problems." Kitchin stated that the RPD's usual procedure is to

have the notice typed and given to the officer, and then the person

giving the notice to the officer signs it. Thereafter, the officer

signs the document indicating that he received it.

     Kitchin testified that Ribaudo had reported to him that

Mitchell refused to sign his performance notice because Mitchell

"said he had an issue with it." Kitchin asked Ribaudo if he

explained to Mitchell that by signing the notice, Mitchell was

only acknowledging that he had received it. Kitchin testified that

                                   4                              A-3046-15T3
signing the notice had nothing to do with whether Mitchell agreed

or disagreed with the notice.

    Kitchin further testified that he spoke to the Chief and he

was instructed to schedule a meeting with Mitchell. The purpose

of the meeting was to give Mitchell another opportunity to sign

the notice. On January 26, 2012, Kitchin met with Ribaudo and

Mitchell. At the meeting, Kitchin asked Mitchell if he had spoken

to Ribaudo about the notice, and Mitchell said he had. Kitchin

asked Mitchell if he was going to sign the document, and Mitchell

said he would not.

    Kitchin asked Mitchell if Ribaudo had explained to him that

signing the notice only indicated that he had received it, and it

had nothing to do with whether he agreed or disagreed with the

notice. According to Kitchin, Mitchell said he had spoken to

Ribaudo "about that."

    Kitchin further testified that he asked Mitchell why he

refused to sign the notice, and Mitchell replied that he did not

agree with the reprimand. Kitchin explained again that Mitchell

was only signing the notice to indicate he had received it, and

that his signature had nothing to do with whether he agreed or

disagreed with the reprimand. Mitchell again refused to sign the

notice.



                                5                         A-3046-15T3
     Kitchin then ordered Mitchell to sign the notice, with the

understanding that he was signing for receipt of the notice, and

his signature did not have anything to do with whether he agreed

or disagreed with the notice. Kitchin again asked Mitchell if he

would sign the notice. Mitchell replied, "No." Kitchin then said

the meeting was over. Mitchell stated he was going to call the

union's attorney, and he left.

     Mitchell   testified   that   on   January   25,   2012,   Ribaudo

presented him with the performance notice. Mitchell asked him to

clarify the reason for the reprimand, but Ribaudo did not prepare

the notice and he did not have any knowledge about it. Mitchell

said he did not have an advance "warning" he would receive the

notice.

     Mitchell also testified that there was no evidence or proof

that he had abused sick time. He said the RPD had no standard

operating procedure or memo regarding excessive sick time. He

claimed that anytime he had used sick leave, the RPD had signed

off on it. He asserted that he had supplied doctors' letters and

documents for his use of sick leave.

     Mitchell said the performance notice did not set forth the

RPD's sick leave policy, the amount of sick leave allowed, or the

amount of sick leave he had taken in the previous year. Mitchell

claimed that previously, an officer had signed a performance notice

                                   6                            A-3046-15T3
and the notice had been used as a disciplinary action against the

officer.

     Mitchell      conceded   that     in   the    past,    he     had     signed    a

performance notice with a reprimand regarding his cell-phone use.

Mitchell signed that notice because it came with a memo, which

provided a statement of reasons for the reprimand. He said he

refused to sign the performance notice regarding sick time because

he asked for clarification. He said his refusal to sign the notice

was not insubordination.

     Mitchell further testified that when he met with Kitchin,

Kitchin asked him why he had refused to sign the notice. Mitchell

conceded    that   Kitchin    gave    him   a   second    chance      to   sign     the

document, but he refused to do so because he was still "asking"

for "clarity." Mitchell stated that Kitchin told him his signature

was a mere formality to acknowledge receipt.

     Nonetheless, Mitchell said he was not comfortable signing the

document because "there [was] no clarification [as] to why [he]

even got the reprimand." Mitchell stated that he would not sign

and that he was going to call the union's attorney. Then, he

"walked out."

     On    cross-examination,        Mitchell     was   asked    to   explain       the

circumstances when his signature on a performance notice had been

used against him. He claimed the Chief of Police had used his

                                        7                                    A-3046-15T3
signature   "as   a   retaliatory    tool."   He   said    he   had    been      in

litigation with the RPD for the previous four or five years. He

claimed the Chief was creating a paper trail on all officers in

the RPD who had pending lawsuits against the department.

      The   hearing   officer   thereafter    issued      another     decision,

finding that Mitchell "clearly disobeyed" Kitchin's order to sign

the performance notice. The hearing officer found that the order

was lawful and clear. He also found that the meetings with Ribaudo

and Kitchin were not an investigation. The hearing officer stated,

"The purpose of the meetings [was] to issue the performance

notice/reprimand and as acknowledgment of its receipt[,] obtain a

signature by the officer."

      The hearing officer noted that Mitchell had not written a

report disagreeing with the reprimand, and he had not filed a

grievance challenging it. The hearing officer pointed out that

Mitchell had the entire evening between the two meetings to seek

legal advice, but he did not do so.

      The hearing officer also stated that a police department is

a   quasi-military    operation,    where   compliance     with     all    lawful

orders is required. He wrote, "It is incumbent upon all members

of the department to comply with any and all lawful orders,

regardless of the form they are presented in (request, direct



                                     8                                    A-3046-15T3
order,    written    order,     verbal   order,        rules   and   regulations,

attorney general[] directives, etc.)."

     The hearing officer stated that, "A [p]olice [o]fficer must

follow all lawful orders and if [the officer has] a problem with

a particular order, [he may] seek grievance or other remedy after

following the order." The hearing officer found that Mitchell

understood the order but refused to obey. He found the RPD had met

its burden of proof, and Mitchell was guilty of insubordination.

The hearing officer stated that the eight-day suspension was "still

appropriate."

     On December 17, 2015, the trial judge heard oral argument on

the matter and placed a decision on the record. The judge reviewed

the testimony presented at the hearing and other evidence. The

judge    stated    that   the   notice       was   a   reprimand,    not   a   form

acknowledging receipt of the notice. She said the form used did

not provide the factual basis for the reprimand.

     The judge also stated that Mitchell did not believe the

reprimand was correct, and Mitchell did not believe he had violated

the RPD's sick-leave policy. The judge said that Mitchell had

requested   clarification       before       he    signed   the   reprimand,    and

clarification was not provided. The judge found that Mitchell

expected    to    receive   clarification          from   Ribaudo.   She   stated,



                                         9                                 A-3046-15T3
"[t]here    was    no   reason   for    [Mitchell]    to     contact    his     union

representative pending receipt of that clarification."

     The judge also stated that there was no evidence that Ribaudo

advised Kitchin that Mitchell had asked for clarification. The

judge said that there was no "general order" or regulation that

required Mitchell to sign the reprimand. Receipt could have been

memorialized       by   either   Ribaudo     or   Kitchin,    since    they       both

witnessed Mitchell's receipt of the form.

     The judge found that Mitchell had made a timely request for

union representation pursuant to the principles set forth in NLRB

v. J. Weingarten, Inc., 420 U.S. 251, 95 S. Ct. 959, 43 L. Ed. 2d

171 (1975), and applied in New Jersey as a matter of state law.

The judge observed that Weingarten held that an employee has a

right to union representation during an interview when the employee

reasonably        believes   the       "investigation"       will      result        in

disciplinary action. The judge stated that Mitchell's meeting with

Ribaudo     and    Kitchin   was   "an       investigation"     for    Weingarten

purposes.

      The judge found that the RPD violated Mitchell's Weingarten

rights because he was not given the opportunity to have union

representation at the meeting with Ribaudo and Kitchin. The judge

also found that the RPD did not prove by a preponderance of the

evidence that Mitchell was insubordinate or that he failed to obey

                                        10                                    A-3046-15T3
a     lawful   order.    The    judge      found    that   initially,     Ribaudo

misunderstood or misrepresented the significance of the officer's

signature on the form.

       The judge entered an order dated December 17, 2015, which set

aside the suspension and ordered the RPD to provide Mitchell with

back pay and benefits for the period of the suspension. The RPD

thereafter filed a motion for reconsideration. The judge denied

that motion by order entered on February 19, 2016. On the order,

the    judge   wrote    that   the   RPD     had   not   met   the   criteria   for

reconsideration. This appeal followed.

       On appeal, the RPD argues that the trial court erred by

finding that the RPD violated Mitchell's Weingarten rights. The

RPD contends that Mitchell's meeting with Ribaudo and Kitchin was

not an investigation of any kind. The RPD further argues that the

record does not support the trial court's finding that Mitchell

was not guilty of insubordination. The RPD contends Mitchell

violated a direct order by refusing to sign the form.

       The Borough of Roseland is a non-civil service jurisdiction,

and the statutory framework for disciplinary proceedings against

police officers in the Borough is governed by N.J.S.A. 40A:14-147

to -151. Ruroede v. Borough of Hasbrouck Heights, 214 N.J. 338,

343 (2013). The statutory scheme requires the employer to show



                                        11                                A-3046-15T3
"just cause" for any suspension, termination, fine, or reduction

in rank. Id. at 354 (citing N.J.S.A. 40A:14-147).

       An officer is entitled to a hearing on the charges. Ibid.

(citing N.J.S.A. 40A:14-147). If the charges are sustained after

the hearing, the officer can seek review in the Superior Court,

which hears the case de novo on the record established below. Id.

at 355 (citing N.J.S.A. 40A:14-150). The trial court must, however,

make   its   own   findings   of    fact.    Id.   at   357   (citing    In    re

Disciplinary Proceedings of Phillips, 117 N.J. 567, 578 (1990)).

       When the trial court conducts its review of the record, it

should give due deference to the hearing officer's conclusions

regarding    credibility,     but   "those    initial    findings   are       not

controlling." Id. at 357 (quoting Phillips, supra, 117 N.J. at

579). The court must "make reasonable conclusions based on a

thorough review of the record." Ibid. (quoting Phillips, supra,

117 N.J. at 580). The court is required to provide the officer "an

independent, neutral, and unbiased" review of the disciplinary

action. Ibid. (citing Phillips, supra, 117 N.J. at 580).

       Findings of fact of a trial judge, sitting without a jury,

will not be disturbed on appeal if they are supported by "adequate,

substantial and credible evidence" in the record. Township of West

Windsor v. Nierenberg, 150 N.J. 111, 132 (1997) (quoting Rova

Farms Resort, Inc. v. Inv'rs Ins. Co. of Am., 65 N.J. 474, 484

                                     12                                 A-3046-15T3
(1974)). However, the trial court's legal determinations are not

entitled to any special deference. Manalapan Realty, L.P. v. Twp.

Comm. of Manalapan, 140 N.J. 366, 378 (1995).

     Here, the trial court erred by finding that the RPD violated

Mitchell's right to union representation. In Weingarten, the Court

held that an employer's failure to provide union representation

at   an   investigatory        interview         violated     the    National      Labor

Relations Act (NLRA) since the employee had asked for union

representation and reasonably believed that the investigation

might result in disciplinary action. Weingarten, supra, 420 U.S.

at 256-60, 95 S. Ct. at 963-65, 43 L. Ed. 2d at 177-80 (citing 29

U.S.C.A. § 157).

     The NLRA does not apply to public employees in New Jersey.

In re Univ. of Med. & Dentistry of N.J., 144 N.J. 511, 527 (1996).

However, the New Jersey Public Employment Relations Commission

(PERC)    adopted      the   Weingarten         rule,   in   the    exercise     of   its

authority under the New Jersey Employer-Employee Relations Act,

N.J.S.A. 34:13A-1 to -43. In re Univ. of Med. & Dentistry of N.J.,

supra,    144   N.J.    at    527.   The    Supreme       Court    held   that    PERC's

application      of     the     Weingarten         rule      was    a     "permissible

construction" of New Jersey law. Id. at 528.

     It is undisputed that Mitchell would have been entitled to

union representation at the January 26, 2012 meeting with Ribaudo

                                           13                                    A-3046-15T3
and Kitchin if that meeting had been an investigation and Mitchell

reasonably believed it might result in disciplinary action. Id.

at 529 (citing Weingarten, supra, 420 U.S. at 252-53, 95 S. Ct.

at 961-62, 43 L. Ed. 2d at 175). Here, however, the trial court

erred by finding the RPD violated Mitchell's Weingarten rights.

       As the record shows, the January 26, 2012 meeting was not

investigatory. Ribaudo met with Mitchell on January 25, 2015. He

presented Mitchell with the written reprimand and asked Mitchell

to sign the form where it states, "Received by ________." Mitchell

refused to sign the notice, and Ribaudo reported that to Kitchin.

       The meeting the following day was held to give Mitchell

another opportunity to sign the form. He again refused, even though

Kitchin had explained to him that he was required to sign the form

regardless of whether he agreed or disagreed with the basis for

the reprimand.

       Kitchin told Mitchell that his signature was only to confirm

that    he   had   received   the   form.   Mitchell   said   he    sought

clarification of the reason for the reprimand, but Kitchin made

clear that the meeting was only being held to give Mitchell an

opportunity to sign the form acknowledging that he had received

the written reprimand.

       Thus, Mitchell's meeting with Ribaudo and Kitchin was not an

investigation for Weingarten purposes. That meeting was only held

                                    14                             A-3046-15T3
to afford Mitchell another opportunity to sign the reprimand,

indicating he had received it. Furthermore, Mitchell did not make

a timely request for union representation. He did not indicate

that he wanted to speak to a union representative until after he

refused to comply with Kitchin's order that he sign the document.

     We also conclude that the trial court erred by finding that

Mitchell    was   not   insubordinate.   Mitchell's    testimony     makes

abundantly clear that he did not agree with the reprimand. Mitchell

stated that the notice failed to provide the factual basis for his

misuse of sick leave in 2011. He claimed that, when necessary, he

had provided the RPD with a doctor's note for the use of sick

time.

     It is clear that Mitchell refused to sign the form, not

because his signature might be used against him in some other

disciplinary matter, but rather because he believed the reprimand

was not justified. This was not a valid reason for refusing to

comply with the order that he sign the document and acknowledge

its receipt. It is undisputed that Kitchin told Mitchell his

signature   was   merely   an   acknowledgement   of   receipt,    not    an

agreement to the reprimand.

     The RPD could have used an alternative means to confirm that

Mitchell had been provided with the notice, but it was not required

to do so. Kitchin issued a lawful order to Mitchell directing him

                                   15                              A-3046-15T3
to sign the notice. He refused to comply. Mitchell's request for

clarification of the reasons for the reprimand has no bearing on

his refusal. The January 26, 2012 meeting was held to obtain his

signature, not to discuss the reasons for the reprimand. The record

shows that Mitchell had other ways to obtain the clarification he

was seeking. His request for clarification was not an excuse for

refusing a lawful order that he sign the document.

     Accordingly, we reverse the trial court's orders of December

17, 2015, and February 19, 2016, and reinstate Mitchell's eight-

day suspension without pay.

     Reversed.




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