SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-6972-95T2F
DIVISION OF STATE POLICE,
Petitioner-Respondent,
v.
MARK JIRAS,
Respondent-Appellant.
___________________________________
Argued: March 17, 1997 - Decided: November 17, 1997
Before Judges Brochin, Kestin and Eichen.
On appeal from the Division of State Police.
Mark D. Schorr argued the cause for appellant
(Sterns & Weinroth, attorneys; Mr. Schorr, of
counsel and on the brief).
Larry R. Etzweiler, Senior Deputy Attorney
General, argued the cause for respondent
(Peter Verniero, Attorney General, attorney;
Mary C. Jacobson, Assistant Attorney General,
of counsel; Mr. Etzweiler, on the brief).
The opinion of the court was delivered by
KESTIN, J.A.D.
In a previous appeal, Docket No. A-4282-93, we remanded this matter "for reconsideration of the penalty after the parties have been afforded the opportunity to present evidence and argument relevant to the appropriate penalty for Jiras's misconduct." (Slip op. p. 9) Charges against Trooper Mark Jiras for an unprovoked assault upon a prisoner at a detention center, as conduct violative of the rules and regulations of the Division of State Police
(Division), had been sustained after a hearing pursuant to the
Administrative Procedure Act, N.J.S.A. 52:14B-9, -10, and his
dismissal from the Division was ordered in a final decision by the
head of the agency at the time, Lt. Col. Dominick C. Trocchia,
Acting Superintendent.
The underlying facts of the matter were recited in our
earlier, unpublished opinion. We will not rehearse them here. We
remanded for reconsideration of the penalty, the only issue on
appeal, because we discerned that the primary basis of the penalty
was the Acting Superintendent's determination, adopting the
Administrative Law Judge's view, "that Jiras's attitude at the
hearing manifested a propensity for future misconduct." We held
that Jiras had not had an adequate opportunity, consonant with
principles of fundamental fairness, to address that question.
The remand hearing was conducted directly before the agency
head, Col. Carl A. Williams, Superintendent. See N.J.S.A. 52:14F-8b. Evidence was presented relative to Jiras's service record with
the Division. Also, three witnesses were offered on behalf of
Jiras; each testified concerning Jiras's exemplary background as a
trooper. Each further expressed the view that Jiras's conduct in
the single incident which gave rise to the charges was
disappointing, but essentially uncharacteristic of him.
In closing argument on Jiras's behalf, his attorney stressed
the service record the trooper had compiled: excellent with only
minor blemish. He argued that the single incident at issue was
anomalous; and that Jiras was a committed, able, loyal trooper
whose sixteen-year career with the Division commended him for
continued service. The deputy attorney general presenting the
charges argued that the single incident of unprovoked violence
toward a prisoner was, in itself, a sufficiently grave departure
from accepted standards of conduct to disqualify Jiras from
continued service.
In concluding that termination from service was the
appropriate penalty for the acknowledged infraction, the
Superintendent specifically eschewed any reliance on eleven
complaints that had been filed concerning Jiras over the course of
his career, because nine of them had been determined to be
unsubstantiated and the remaining two unfounded. The fact that
Jiras had attended human relations training two months before the
incident which gave rise to the charges was seen by the
Superintendent as "not conclusive of Mr. Jiras's amenability for
rehabilitation or suitability for service as a State Trooper but it
is a factor to consider in assessing the appropriate penalty to be
imposed, as is the fact that Mr. Jiras served the Division for more
than four years following the . . . incident with only one other
disciplinary infraction." Jiras's personal background, his service
record generally, and the testimony of the supporting witnesses
were also factors considered. The underlying incident itself was
evaluated for such details as had been developed in the record and
for the qualities of Jiras's conduct therein.
The Superintendent reached the following conclusion:
The severity of Jiras's transgressions cannot
be minimized. [The prisoner] had a right to be free
from such an attack by someone entrusted with
enforcing the law. While the attack may have caused
[the prisoner] no significant physical injury, the
injury to the integrity of the Division cannot be
overstated. To command the respect of the
citizenry, the Division must rid itself of those
officers who would disgrace its ideals of honor,
duty and fidelity. This incident, standing alone,
warrants dismissal absent some explanation for its
occurrence indicating that a less severe penalty
ought to be considered. Given the opportunity, Mr.
Jiras offered no explanation for his attack on [the
prisoner]. We have an obligation to protect the
public, whether it be from criminals on the streets
or from police officers who abuse their solemn oath
and position. The penalty is harsh, but so were the
transgressions.
As the head of the Division the ultimate
responsibility for maintaining discipline among
State Police Officers falls to me. As the Supreme
Court observed in Matter of Carberry,
114 N.J. 574
(1989):
The weight of that responsibility becomes
apparent on considering that state
troopers are authorized to carry firearms,
. . . to use deadly force under
justifiable circumstances, . . . and to
enforce law and order throughout the
state. [Id. at 578 (citations omitted)]
The Division cannot maintain among its ranks
troopers whose conduct indicates that they cannot be
trusted with such awesome powers and
responsibilities. An unprovoked and unwarranted
attack on a prisoner offering no resistance and
whose hands are cuffed behind his back is such
conduct. Cf. In re Tuch,
159 N.J. Super. 219 (App.
Div. 1978) (police officer removed for striking a
manacled prisoner); State v. Lore,
197 N.J. Super. 277 (App. Div. 1984) (police officer convicted of
official misconduct as a result of simple assault on
citizen properly required to forfeit his office as
municipal police officer); Henry v. Rahway State
Prison,
81 N.J. 571, 580 (1980) (deliberate
falsification of report, even with good intentions,
could justify removal of a prison guard.) Such
conduct can no more be tolerated by the law
enforcement profession in this State than can be use
of illegal drugs. Cf. Matter of Carberry, 114 N.J.
at 582[].
Jiras was given the opportunity to present
evidence and argument on the appropriate penalty to
be assessed in this matter. Although given the
opportunity at the May 6 hearing, Mr. Jiras offered
no explanation for his unprovoked and unwarranted
assault on [the prisoner]. While acknowledging that
he had done wrong and that he never intended to go
to a hearing, he sought, through counsel, to
minimize the severity of his conduct. Counsel for
Mr. Jiras took repeated exception to the use of the
word "assault" to describe Jiras's conduct in
relation to [the prisoner]. He insisted on
characterizing the conduct as "manhandling," as
though that would somehow make the conduct less
severe and less offensive.
Describing Jiras's conduct as "manhandling"
does not diminish the ALJ's findings that a violent
physical and verbal attack was unleashed by Mr.
Jiras on [the prisoner]. That attack was a blatant
breach of the public trust that damaged the
integrity of the Division of State Police and all of
its members. That conduct warrants dismissal.
In appealing the Superintendent's decision ordering his
dismissal, Jiras argues:
THE PENALTY OF TERMINATION IS WHOLLY
DISPROPORTIONATE TO THE CONDUCT CHARGED AND THE
COURT SHOULD EXERCISE ITS DISCRETION TO FIX A LESSER
PENALTY IN ORDER TO FINALLY AND COMPLETELY DETERMINE
THE CAUSE OF REVIEW.
The argument calls upon us to substitute our judgment for that of the Superintendent. Jiras contends that his excellent record with the Division, the supportive testimony of others, and his repentant attitude, establish that he was suitable for continued service and was amenable to attitudinal rehabilitation. The Division argues that a determination by its head, that the type of incident which occurred here warrants dismissal in the absence of some explanation for its occurrence, is entitled to substantial deference,
notwithstanding the positive service record elements which Jiras
emphasizes.
We unquestionably possess the authority to evaluate the
penalty ordered and, if warranted, to set it aside and determine
the appropriate punishment for the offense established. West New
York v. Bock,
38 N.J. 500, 519-20 (1962). Yet, we are not here
concerned with a disciplinary infraction for which a range of
penalties is necessarily available based upon the employee's
service record and the salutary policy of incremental sanctions.
See id. at 520-24. The charge that Jiras's behavior in performing
his duties brought discredit upon both himself and the Division is
so serious as to go to the heart of his capacity to function
appropriately as a State trooper. Cf. Cosme v. East Newark Twp.
Comm.,
304 N.J. Super. 191, 206 (App. Div. 1997). The existence of
so serious a charge necessary implicates basic policies governing
the conduct of members of the Division, as well as considerations
bearing individually upon the employee.
We are mindful of the special status of the Division of State
Police and the special standards of discipline that apply to its
members, see State v. State Troopers Fraternal Ass'n,
134 N.J. 393,
413-419 (1993), and of the Superintendent's duty to maintain
discipline among the troopers as one means of promoting the public
interest and safety, see Matter of Carberry,
114 N.J. 574, 578
(1989). In the face of these considerations, it is not fitting
that we should substitute our judgment for the Superintendent's
policy determination that so basic a breach of performance
standards and of duty or discipline as occurred here calls for
termination in the absence of special circumstances, explanation or
excuse amply demonstrated by the person charged. The record
supports the Superintendent's conclusion that no such showing was
adequately made here, as well as his implicit determination that
Jiras's conduct in the acknowledged incident bore very basically on
his capacity to function as a State trooper. As a general rule, in
reviewing administrative agency decisions, we accord substantial
deference to an agency head's choice of remedy or sanction, seeing
it as a matter of broad discretion, In re Scioscia,
216 N.J. Super. 644, 660 (App. Div.), certif. denied,
107 N.J. 652 (1987); see also
In re Jascalevich License Revocation,
182 N.J. Super. 455, 472
(App. Div. 1982), especially where considerations of public policy
are implicated. See Knoble v. Waterfront Comm. of N.Y. Harbor,
67 N.J. 427, 431-32 (1975); In re Marvin Gastman,
147 N.J. Super. 101,
110 (App. Div. 1977); cf. In re Suspension of DeMarco,
83 N.J. 25,
39-40 (1980). We have been given no reason to depart from that
standard in this case.
Affirmed.