                            NOT FOR PUBLICATION WITHOUT THE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-3758-17T4

IN THE MATTER OF TELINA
HAIRSTON, CITY OF EAST
ORANGE POLICE DEPARMENT.
_____________________________

                Submitted February 27, 2019 – Decided March 26, 2019

                Before Judges Accurso and Vernoia.

                On appeal from the New Jersey Civil Service
                Commission, Docket Nos. 2017-4013 and 2018-0739.

                Caruso Smith Picini, PC, attorneys for appellant Telina
                Hairston (Steven J. Kaflowitz, on the briefs).

                Weiner Law Group, LLP, attorneys for respondent City
                of East Orange Police Department (Mark A. Tabakin,
                of counsel; Patricia C. Melia, on the brief).

                Gurbir S. Grewal, Attorney General, attorney for
                respondent New Jersey Civil Service Commission
                (Melissa Dutton Schaffer, Assistant Attorney General,
                of counsel; Steven M. Gleeson, Deputy Attorney
                General, on the brief).

PER CURIAM
      East Orange police officer Telina Hairston appeals from a Civil Service

Commission final decision, issued following our remand in In the Matter of

Telina Hairston, No. A-4850-15 (App. Div. Sep. 7, 2017), upholding a 100-day

suspension East Orange imposed for Hairston's violation of police department

rules and regulations and for other sufficient cause under N.J.A.C. 4A:2-

2.3(a)(12).   Because the Commission's decision is supported by sufficient

credible evidence and is not arbitrary, capricious or unreasonable, we affirm.

      We described the facts giving rise to Hairston's suspension in our prior

opinion, Hairston, slip op. at 2-5, and they need not be repeated here. It is

sufficient to note that on June 26, 2014, East Orange issued a preliminary noti ce

of disciplinary action (PNDA) charging that on December 28, 2013, Hairston

violated various police department rules and regulations by refusing a direct

order, neglect of duty and "report[ing] out of duty due to illness knowing she

was not ill." Id. at 3. The PNDA also cited N.J.A.C. 4A:2-2.3(a)(12), which

allows for the imposition of discipline for "other sufficient cause." The PNDA

advised that a 180-day suspension or termination of employment would be




                                                                          A-3758-17T4
                                        2
imposed. Hairston, slip op. at 3. East Orange amended the PNDA in January

2015 and reduced the proposed discipline to a 100-day suspension. 1

      Following an internal disciplinary hearing, East Orange issued a final

notice of disciplinary action suspending Hairston for 100 days.         Hairston

appealed to the Commission and the matter was referred for a hearing before an

administrative law judge (ALJ). Following a hearing, the ALJ found East

Orange established Hairston was insubordinate, neglected her duties by taking

sick leave when she was not ill, violated police department rules and regulations

prohibiting feigning illness to avoid performing her duties and violated the

department's sick leave policy. Although the ALJ noted East Orange alleged

there was other sufficient cause under N.J.A.C. 4A:2-2.3(a)(12) for the

suspension, the ALJ found East Orange "did not offer any separate evidence

concerning 'other sufficient cause': it focused solely on the departmental rules

and regulations." Thus, the ALJ rejected East Orange's claim there was other

sufficient cause supporting the suspension.

      The ALJ recommended dismissal of the charges, finding they were not

timely filed under N.J.S.A. 40A:14-147, which provides that disciplinary


1
  The charges were amended to delete a claim that Hairston also violated a
March 24, 2014 "Last Chance Agreement" pertaining to other disciplinary
charges against her. Hairston, slip op. at 3.
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                                       3
charges based on alleged violations of department rules and regulations must be

filed within forty-five days of the date the person who is authorized to issue the

charges "obtain[s] sufficient information to file the matter upon which the

complaint is based."    The ALJ found East Orange "had all the necessary

information in May [2014]" to file the charges based on the Police Chief's receipt

of a May 12, 2014 report from a Professional Standards Unit detective

concerning his investigation of Hairston's conduct. The ALJ found the charges

were untimely filed because the PNDA was not filed until January 2015, and

recommended dismissing the charges on that basis. The ALJ also found East

Orange did not present evidence establishing "other sufficient cause" for the

suspension, concluding the charge lacked sufficient substance to save what the

ALJ concluded was "a set of stale internal-rule charges."

      East Orange filed exceptions to the ALJ's decision, but the Commission

lacked a quorum and the ALJ's findings and recommendation were deemed

adopted by the Commission in accordance with N.J.S.A. 52:14B-10(c). East

Orange appealed.

      In our decision on the appeal, we concluded the ALJ's determination that

the charges were filed beyond the time period permitted by N.J.S.A. 40A:14 -

147 was incorrect because it was based on the erroneous finding that the charges


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                                        4
were filed on January 8, 2015, when, in fact, the initial PNDA was filed on June

26, 2014.    Hairston, slip op. at 6.       Nonetheless, we did not reverse the

Commission's decision but instead remanded for the Commission to determi ne

if the charges were timely under N.J.S.A. 40A:14-147 when filed on June 26,

2014. Id. at 8. We also directed the Commission to determine if East Orange

established other sufficient cause for the suspension under N.J.A.C. 4A:2-

2.3(a)(12) since that charge is not subject to the forty-five-day time-bar. Id. at

9. We further required that the Commission determine the appropriateness of

the 100-day suspension if it found the charges based on the violations of the

police department's rules and regulations were not time-barred or sustained the

other sufficient cause charge. Id. at 9-10.

      On remand, the Commission issued its final decision finding the charges

in the PNDA were timely when filed on June 26, 2014. The Commission noted

that the Professional Standards Unit detective's May 12, 2014 report detailed an

investigation that began on December 28, 2013, and ended on May 7, 2014, and

recommended that the East Orange Police Chief review the information

developed during the investigation and determine "if disciplinary action against

Hairston was warranted." The Commission found there was no evidence "the

investigation was unduly delayed" and concluded "the Police Chief had


                                                                          A-3758-17T4
                                        5
sufficient information . . . to file the charges against Hairston" when he received

the May 12, 2014 investigation report, and therefore the charges were timely

under N.J.S.A. 40A:14-147 when they were filed forty-five days later on June

26, 2014.

      The Commission further explained that the forty-five-day deadline under

"N.J.S.A. 40A:14-147 only expressly applies to charges related to violations of

departmental rules and regulations," and does not apply to the charge that

Hairston should be disciplined for other sufficient cause under N.J.A.C. 4A:2-

2.3(a)(12).   The Commission observed that the "charge of 'other sufficient

cause,' which essentially . . . comprised . . . a number of upheld violations of

department rules and regulations, should not be dismissed," but did not make a

determination there was "other sufficient cause" under N.J.A.C. 4A:2-2.3(a)(12)

supporting Hairston's suspension.

      Instead, the Commission found "Hairston violated departmental rules and

regulations relating to insubordination, neglect of duty, malingering, and sick

leave procedures" by "refus[ing] to follow a direct order to relieve a fellow

officer" and feigning illness "to excuse her from duty." The Commission further

determined Hairston's actions violated the police department's sick leave policy.




                                                                           A-3758-17T4
                                        6
      The Commission also found that a 100-day suspension was appropriate

based on "the seriousness of the underlying incident" and "the concept of

progressive discipline." The Commission detailed Hairston's disciplinary record

including "a written reprimand in 2008, a one-day suspension [in] 2009, a [ten]-

day suspension in 2011, and a [sixty]-day suspension as agreed to by settlement

in 2014." The Commission concluded that "a 100 calendar day suspension,

imposed in 2015, was not unduly harsh considering Hairston's overall

disciplinary history, her recent infractions prior to 2015, and the seriousness of

the subject offense."   The Commission ordered that the "100 calendar day

suspension was justified" and dismissed Hairston's appeal.           This appeal

followed.

      "Our review of administrative agency action is limited." Russo v. Bd. of

Trs., Police & Firemen's Ret. Sys., 206 N.J. 14, 27 (2011). A reviewing court

will presume the validity of the "administrative agency's exercise of its

statutorily delegated responsibilities." Lavezzi v. State, 219 N.J. 163, 171

(2014). Thus, "an appellate court ordinarily should not disturb an administrative

agency's determinations or findings unless there is a clear showing that (1) the

agency did not follow the law; (2) the decision was arbitrary, capricious, or

unreasonable; or (3) the decision was not supported by substantial evidence." In


                                                                          A-3758-17T4
                                        7
re Virtua-West Jersey Hosp. Voorhees for a Certificate of Need, 194 N.J. 413,

422 (2008).    "The burden of demonstrating that the agency's action was

arbitrary, capricious or unreasonable rests upon the [party] challenging the

administrative action." In re Arenas, 385 N.J. Super. 440, 443-44 (App. Div.

2006).

      "[T]he test is not whether an appellate court would come to the same

conclusion . . . but rather whether the factfinder could reasonably so conclude

upon the proofs." Brady v. Bd. of Review, 152 N.J. 197, 210 (1997) (quoting

Charatan v. Bd. of Review, 200 N.J. Super. 74, 79 (App. Div. 1985)). A

reviewing court "may not vacate an agency determination because of doubts as

to its wisdom or because the record may support more than one result." In re

N.J. Pinelands Comm'n Resolution PC4-00-89, 356 N.J. Super. 363, 372 (App.

Div. 2003). "Where . . . the determination is founded upon sufficient credible

evidence seen from the totality of the record and on that record findings have

been made and conclusions reached involving agency expertise, the agency

decision should be sustained." Gerba v. Bd. of Trs., Pub. Emps.' Ret. Sys., 83

N.J. 174, 189 (1980).

      Hairston argues the Commission erred by finding East Orange timely filed

the charges based on the alleged violations of the department rules and


                                                                       A-3758-17T4
                                      8
regulations. She contends East Orange could not properly extend the time period

for bringing the charges by delaying the investigation and the delivery of the

report to the Police Chief until May 12, 2014, and that the Professional

Standards Unit had "sufficient information" to bring the charges by March 21,

2014.     Hairston asserts the Professional Standards Unit "slow-walked this

investigation from December to May," and its inexcusable delay could not

properly extend the forty-five-day deadline.

        In pertinent part, N.J.S.A. 40A:14-147 provides that:

              A complaint charging a violation of the internal rules
              and regulations established for the conduct of a law
              enforcement unit shall be filed no later than the [forty-
              fifth] day after the date on which the person filing the
              complaint obtained sufficient information to file the
              matter upon which the complaint is based.

                    ....

              A failure to comply with said provisions as to the
              service of the complaint and the time within which a
              complaint is to be filed shall require a dismissal of the
              complaint.

              [N.J.S.A. 40A:14-147.]

The forty-five-day deadline applies only to violations of internal rules and

regulations; it does not apply to charges of misconduct. McElwee v. Borough of

Fieldsboro, 400 N.J. Super. 388, 394 (App. Div. 2008).


                                                                          A-3758-17T4
                                         9
      In Roberts v. Division of State Police, our Supreme Court addressed the

forty-five-day deadline for filing disciplinary charges against State police officers

under N.J.S.A. 53:1-33, which in relevant part is identical to the deadline for

filing charges alleging violations of internal rules and regulations against

municipal police officers under N.J.S.A. 40A:14-147.2 191 N.J. 516, 521-22

(2007). The Court explained that "it is not the happening of the event giving rise

to discipline" but instead is the receipt of "sufficient information" by the

individual authorized to file the charges "that starts the clock for purposes of

evaluating [the] timeliness" of any charges filed.          Id. at 524.    The Court

determined that the law enforcement agency could resume its internal

investigation after the conclusion of a criminal matter based on the same incidents

giving rise to the disciplinary charges and the forty-five-day limitation period




2
   Compare N.J.S.A. 53:1-33, which provides that a complaint against a State
police officer "charging a violation of the internal rules and regulations . . . shall
be filed no later than the [forty-fifth] day after the date on which the person
filing the complaint obtained sufficient information to file the matter upon which
the complaint is based," with N.J.S.A. 40A:14-147, which, as noted, provides
that "[a] complaint charging a violation of the internal rules and regulations . . .
shall be filed no later than the [forty-fifth] day after the date on which the person
filing the complaint obtained sufficient information to file the matter upon which
the complaint is based."


                                                                              A-3758-17T4
                                        10
would not begin to run until "sufficient information" was available in the form of

an internal investigative report. Id. at 525-26.

      Here, it is undisputed the Police Chief was the individual vested with the

authority to direct the filing of the charges, see N.J.S.A. 40A:14-118, and there

is no evidence he possessed sufficient information to file the PNDA prior to his

receipt of the Professional Service Unit detective's report on May 12, 2014. As

the Commission correctly found, the Police Chief filed the PNDA within forty-

five days of his initial receipt of the report, which contained information

sufficient to support the filing of the charges. There is no evidence to the

contrary. Thus, the Commission's conclusion the PNDA was timely filed under

N.J.S.A. 40A:14-147 is supported by sufficient credible evidence.

      Hairston correctly argues that a police department may not delay an

investigation and, by doing so, extend commencement of the forty-five-day time

period under N.J.S.A. 40A:14-147. In Aristizibal v. City of Atlantic City, the

court considered whether disciplinary charges against numerous police officers

were filed within the forty-five-day deadline required under N.J.S.A. 40A:14-

147. 380 N.J. Super. 405 (Law Div. 2005). The court noted that the Attorney

General Guidelines allow an internal investigation of the basis for charges, but

where "an agency cannot conduct an investigation or file disciplinary charges


                                                                         A-3758-17T4
                                       11
within [forty-five] days of the receipt of the complaint, the burden is on the

investigator and ultimately the agency to identify the point at which 'sufficient

information' was developed to initiate disciplinary action." The court observed

that "an agency would have a difficult time justifying an extensive bureaucratic

delay once any member of that agency has established sufficient information." 3

Id. at 427. The court held the charges at issue were untimely under N.J.S.A.

40A:14-147 because of a seventy-two-day delay in the commencement of the

investigation that resulted in the filing of the charges. Id. at 433-34.

      As noted by the court in Aristizibal, the guidelines also require that law

enforcement agencies conduct thorough and objective investigations of internal

complaints about officer misconduct. Id. at 426. Here, Hairston denied the

numerous allegations against her from the outset and, therefore, it was not only



3
   The court did not identify the version of the guidelines to which it referred.
The guidelines have been revised on numerous occasions since their adoption in
1991, and in 2005, when Aristizibal was decided, the then current version had
last been last revised in 2000. See New Jersey Attorney General "Internal
Affairs       Policy      &       Procedures"       (rev.       Nov.       2000),
https://www.state.nj.us/lps/dcj/agguide/internal.pdf (last visited Mar. 4, 2019).
We note the guidelines were revised in September 2011, July 2014 and
November 2017. See New Jersey Attorney General "Internal Affairs Policy &
Procedures"                   (rev.                 Nov.                    2017)
https://www.nj.gov/oag/dcj/agguide/internalaffairs2000v1_2.pdf (last visited
Mar. 4, 2019). The language from the guidelines we quote from the court in
Aristizibal remains in the current version.
                                                                           A-3758-17T4
                                       12
appropriate but necessary for the department to conduct a thorough investigation

of the allegations, Hairston's claims and denials, and the evidence corroborating

or contradicting the department's and Hairston's conflicting versions of the

events. There was no delay in the commencement of the investigation and the

May 12, 2014 report details the detective's consistent and diligent efforts to

collect information and evidence from numerous locations and sources as the

investigation progressed.     We are convinced the record supports the

Commission's determination there was no undue delay in the investigation of

the December 28, 2013 incidents that resulted in the filing of the charges and

that the prompt submission of the report following the investigation's

completion first provided sufficient information to the Police Chief supporting

the filing of the charges.      See N.J.S.A. 40A:14-147.        We affirm the

Commission's decision that the charges alleging violations of the police

department's rules and regulations were timely filed.

      In our prior decision, we remanded in part for the Commission to

determine if East Orange established other sufficient cause for the suspension

under N.J.A.C. 4A:2-2.3(a)(12).     Hairston, slip op. at 9.    On remand, the

Commission addressed the charge directly by stating it "should not be

dismissed" and implicitly by entry of its final decision sustaining all of the


                                                                         A-3758-17T4
                                      13
charges in the final notice of disciplinary action. Although “other sufficient

cause” is not expressly defined in N.J.A.C. 4A:2–2.3, we are satisfied the

Commission correctly concluded that Hairston's "refus[al] to follows a direct

order," neglect of "her duty to remain at work" while "the department . . .

experience[ed] a high volume of priority calls," "use[] [of] sick leave to excuse

her from duty" when she was not ill, misrepresentation that she needed to leave

work to care for her children and violation of numerous department rules and

policies constitutes conduct within this catchall category of offenses for which

discipline may be properly imposed.

      Affirmed.




                                                                         A-3758-17T4
                                      14
