                        NOT FOR PUBLICATION WITHOUT THE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
                                3
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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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                                                           A-0127-16T3
    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.
                               8
                                                                 A-0127-16T3
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
                                 9
                                                          A-0127-16T3
          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
                               10
                                                           A-0127-16T3
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
                               11
                                                           A-0127-16T3
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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