                             NOT FOR PUBLICATION WITHOUT THE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-5330-17T1


IN RE THE DISCIPLINARY
ACTION OF MERRITT CARR.
____________________________

                 Argued August 13, 2019 – Decided August 21, 2019

                 Before Judges Sumners and Moynihan.

                 On appeal from the Superior Court of New Jersey, Law
                 Division, Essex County, Docket No. L-4686-16.

                 Kyle J. Trent argued the cause for appellant Borough of
                 Glen Ridge (Apruzzese, McDermott, Mastro &
                 Murphy, PC, attorneys; Arthur R. Thibault, Jr., of
                 counsel and on the brief; Kyle J. Trent, on the brief).

                 Joshua H. Reinitz argued the cause for respondent
                 Merritt Carr (Iacullo Martino, LLC, attorneys; Joshua
                 H. Reinitz and Anthony J. Iacullo, of counsel and on
                 the brief).

PER CURIAM

       The Borough of Glen Ridge appeals from the trial court's order reducing

the Borough Administrator's twenty-day suspension of Merritt Carr from his

position as a Borough police sergeant, following a departmental disciplinary
hearing, to a twenty-four hour suspension. The Borough argues the "trial court

failed to consider or address" certain charges leveled against Carr or "to consider

his guilt on those charges when assessing the penalty"; and "failed to provide

analysis as to the basis for" reducing the penalty.    We agree and remand this

matter, once again, to the Law Division.

      We previously remanded this case to the trial court because in its prior

decision finding the Borough proved "by a preponderance of the evidence that

. . . Carr neglected his duty, failed to perform duties, failed to supervise a

subordinate officer, and engaged in conduct unbecoming a public employee," it

did not correlate its findings to the elements of each charge and analyze whether

the substantiated charges warranted the twenty-day suspension which the trial

court then upheld. In re Disciplinary Action of Carr, No. A-3987-16 (App. Div.

May 4, 2018).

      The preliminary notice of disciplinary action (PNDA) listed both the

departmental and statutory charges lodged against Carr:

            1. DEPARTMENTAL RULES AND REGULATIONS:

            a. 2.32.140W Violation of rules 3:7F & 3:8B-3[1]


1
  The charge set forth in section 2.32.140W specifically provides: "Violating
any of the rules and regulations governing the department or any administrative


                                                                           A-5330-17T1
                                        2
            b. 2.32.140M Neglect of Duty
            c. 2.32.140J Incompetency

            2. VIOLATION OF N.J.S.A. 40A:14-147

            a.   Conduct Unbecoming a Public Employee;
            b.   Neglect of Duty;
            c.   Failure to Supervise; and
            d.   Failure to Perform Duties.




rule or regulation promulgated by the public safety committee or the mayor and
council." Departmental Rule 3:7F provides:

            ASSISTING SUBORDINATES. A SUPERVISORY
            OFFICER   SHALL     HAVE     A  WORKING
            KNOWLEDGE      OF    THE    DUTIES  AND
            RESPONSIBILITIES OF HIS SUBORDINATES. HE
            SHALL OBSERVE CONTACTS MADE WITH THE
            PUBLIC BY HIS SUBORDINATES AND BE
            AVAILABLE      FOR      ASSISTANCE    OR
            INSTRUCTION AS MAY BE REQUIRED. A FIELD
            SUPERVISORY OFFICER SHALL RESPOND TO
            CALLS OF SERIOUS EMERGENCIES, FELONIES
            IN PROGRESS, ASSAULTS AND OTHERS,
            UNLESS ACTIVELY ENGAGED IN A POLICE
            INCIDENT.    HE SHOULD OBSERVE THE
            CONDUCT OF THE ASSIGNED PERSONNEL AND
            TAKE ACTIVE CHARGE WHEN NECESSARY.

Departmental Rule 3:8B-3 provides the squad sergeant's responsibilities
include:     "DIRECT[ING] SUBORDINATES IN THE PROPER
PERFORMANCE OF THEIR DUTIES AND ENSUR[ING] THAT THEY ARE
PROPERLY OBEYING AND CARRYING OUT CURRENT POLICIES AND
PROCEDURES."
                                                                      A-5330-17T1
                                      3
      In its oral decision after remand, the trial court concluded Carr violated

Departmental Rules 3:7F and 3:8B-3. The court found Carr, as sergeant, ordered

an officer who had never done so without accompaniment, to take a statement

from a domestic violence victim and prepare a concomitant report. Despite

knowing the officer's level of inexperience, Carr watched a football game on a

break-room television instead of directly observing the officer's actions or

correcting the many errors the officer made in taking the victim's statement thus

violating Departmental Rule 3:7F. The court also concluded Carr violated

Departmental Rule 3:8B-3 based on numerous errors committed in the

preparation of a temporary restraining order (TRO): "boxes . . . checked that

[should not] have been" and provisions granting possession of a Pennsylvania

residence to the victim and a search warrant of another Pennsylvania residence

– despite Carr being advised by a municipal court judge that provisions

concerning properties outside the jurisdiction of New Jersey courts should not

be included in the TRO. Further evidence of that violation included the failure

to: address the elements of terroristic threats, the predicate offense for the TRO,

in the victim's statement; collect, or even mention in the report, text messages

possessed by the victim evidencing the predicate offense; mention in the report

the search warrant for weapons, a police-department computer-database check


                                                                           A-5330-17T1
                                        4
of the domestic violence suspect, and Carr's actions in connection with the

investigation. The trial court did not find sufficient evidence that proved the

incompetency charge under Regulation 2.32.140J. 2 We find no reason to disturb

those findings which are supported by substantial, credible evidence in the

record. In re Disciplinary Procedures of Phillips, 117 N.J. 567, 581 (1990)

      In its remand decision, the trial court did not address the charged neglect

of duty violation under Regulation 2.32.140M and the four statutory charges

under N.J.S.A. 40A:14-147: conduct unbecoming a public employee, neglect of

duty, failure to supervise and failure to perform duties. Although the court, in

its first decision, determined Carr "neglected his duty, failed to perform duties,

failed to supervise a subordinate officer, and engaged in conduct unbecoming a

public employee," In re Disciplinary Action of Carr, slip op. at 2-3, it did not

incorporate those findings, and explain them, in the remand decision.

      We recognize that many of the trial court's current findings could well

support a determination that Carr violated the provisions the trial court did not

address. It is the role of the trial court, however, to conduct a de novo review

of the proceedings before the original tribunal – here, the Borough Administrator


2
  The court not only considered the incompetency charge that was set forth in
the PNDA, but the other portions of the regulation not set forth therein: "lack
of energy and incapacity, mental or physical."
                                                                          A-5330-17T1
                                        5
– "to ensure that a neutral, unbiased forum will review disciplinary convictions."

Phillips, 117 N.J. at 580. Our role in reviewing that de novo proceeding is

limited. Id. at 579. Our "function on appeal is not to make new factual findings

but simply to decide whether there was adequate evidence before the [] [c]ourt

to justify its finding of guilt." Ibid. (first alteration in original) (quoting State

v. Johnson, 42 N.J. 146, 161 (1964)). Therefore, "unless the appellate tribunal

finds that the decision below was '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." Ibid. (alteration in original) (quoting

Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980)).

      We are thus compelled to remand this matter to the trial court for its

consideration of the unaddressed charges.        We decline to exercise original

jurisdiction because further fact-finding must be completed. Price v. Himeji,

LLC, 214 N.J. 263, 294 (2013). We also reject Carr's argument that the trial

court's failure to address those charges infers that they "did not merit discussion

and should be deemed dismissed." As we explained in our prior decision on this

matter, "Rule 1:7-4(a) requires a court to not only find facts, but to 'state its

conclusions of law thereon.'" In re Disciplinary Action of Carr, slip op. at 3

(quoting R. 1:7-4(a)). Further, it would be inappropriate to infer what the trial


                                                                             A-5330-17T1
                                         6
court found from a barren record, especially considering its prior uncorrelated

finding that Carr violated the now-unaddressed regulatory and statutory charges.

      If any or all of those unaddressed charges are deemed proved by the trial

court, it should assess the penalty in light of those found violations and explain

its reasons – much as it did, contrary to the Borough's argument, in its oral

remand decision – so an appellate court would be able 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,'" In re Stallworth,

208 N.J. 182, 195 (2011) (quoting In re Carter, 191 N.J. 474, 484 (2007)). The

trial court should recognize that on de novo review, a court may "alter a sanction

imposed by an administrative agency only 'when necessary to bring the agency's

action into conformity with its delegated authority. The [c]ourt has no power to

act independently as an administrative tribunal or to substitute its judgment for

that of the agency.'" In re Herrmann, 192 N.J. 19, 28 (2007) (quoting In re Polk,

90 N.J. 550, 578 (1982)). Our Supreme Court has "cautioned, courts should take

care not to substitute their own views of whether a particular penalty is correct

for those of the body charged with making that decision." Carter, 191 N.J. at

486. Of course, the trial court should well-explain any deviation from its prior

decision.


                                                                          A-5330-17T1
                                        7
Remanded. We do not retain jurisdiction.




                                           A-5330-17T1
                               8
