Ruroede v. Borough of Hasbrouck Heights, A-95 September Term 2011; Supreme Court; per curiam opinion; decided July 1, 2013. On certification to the Appellate Division. [Sat below: Judges Reisner, Simonelli and Hayden in the Appellate Division; Judge De La Cruz in the Law Division.] DDS No. 25-1-0481 [34 pp.]

Plaintiff Kelly Ruroede, a Hasbrouck Heights police officer who was on temporary sick leave, was suspended without pay and ultimately terminated from his employment based on numerous charges stemming from an off-duty verbal and physical altercation outside a restaurant and bar.

Rather than producing live testimony from the complaining witness or any other witness to the altercation at Ruroede's disciplinary hearing, the borough presented statements taken as part of an internal affairs investigation and testimony from the officer who prepared the internal investigation report. The hearing officer found that the borough carried its evidentiary burden and that termination of Ruroede's employment was appropriate. The borough adopted that recommendation.

Ruroede sought de novo review in the Law Division. Finding that the borough's failure to present live testimony was inadequate and deprived Ruroede of due process, the court vacated his termination and remanded the matter for a new disciplinary proceeding. It placed Ruroede on inactive, paid status pending a final disposition of the charges and awarded him back pay. The Appellate Division affirmed.

On appeal, the borough questions whether the Law Division acted properly in vacating Ruroede's termination without making independent findings of fact or holding a hearing to supplement the record. It also questions whether altering the suspension to one with pay and awarding back pay was proper.

Held: The Law Division erred by vacating the termination, ordering a remand, and placing Ruroede on inactive paid status. The court should have reviewed the record to determine if there was sufficient credible evidence to support the charges and termination. Further, under N.J.S.A. 40A:14-150, its actions were limited to affirming, reversing or modifying the disciplinary conviction and by ordering a remand, it exceeded these statutorily authorized dispositions. Moreover, the record did contain sufficient, competent evidence to support the charges and the termination.

The court begins its analysis by reviewing the statutes governing disciplinary proceedings for police officers in noncivil service municipalities, N.J.S.A. 40A:14-147 to -151. It finds the plain language of the relevant statutes to be clear. The disciplinary system provides a police officer with well-defined procedures for an efficient and fair hearing process on alleged charges against the officer. The hearing must commence promptly and the burden of proving the charges is on the employer. The officer is provided with multiple opportunities to have the relevant evidence reviewed and to present his own evidence to ensure a fair and meaningful result. He can seek de novo review and supplement the evidentiary record in Superior Court and he has an opportunity for appellate review in the Appellate Division.

Although a court conducting a de novo review must give due deference to the conclusions drawn by the original tribunal regarding credibility, those findings are not controlling. The court reviewing the matter de novo is called on to make reasonable conclusions based on a thorough review of the record.

Here, the Law Division did not review the evidence presented at the municipal hearing to determine whether sufficient, competent evidence supported the charges against Ruroede. Rather, it declared that the failure to produce a live witness to the altercation violated Ruroede's due process rights.

The court says that while having competent, nonhearsay evidence from Egbert, the Rutherford police captain involved in the confrontation, or one of the other eyewitnesses to the altercation would have rounded out this record, Ruroede admitted that an altercation took place. His previous admission is competent evidence that was part of the borough's case in chief, in addition to his own testimony at the hearing. The failure to call Egbert did not present a due process violation. Ruroede suffered no due process deprivation even though he was unable to confront Egbert about who started the altercation because who started the incident was not an ultimate fact essential to substantiate the charges against Ruroede since the bulk of the evidence supporting his termination comes directly from his own statements.

The court says remanding for a new disciplinary hearing was not an appropriate remedy for the Law Division under N.J.S.A. 40A:14-150. The court could have permitted supplementation of the record by either party, but the statutory scheme envisioned that disciplinary proceedings be brought to a prompt conclusion.

The court says the Law Division should have reviewed that record and determined whether there was a residuum of competent evidence to sustain the charges against Ruroede. It therefore exercises its original authority under Rule 2:10-5 and says that the statements admitted as documents appended to the internal investigative report are hearsay. As such, they could be used to corroborate competent evidence, but they could not provide the residuum of competent evidence that must support a fact material to the determination of a charge.

However, Ruroede's testimony during the hearing and in his initial statement during the police department's investigation was properly admitted under N.J.R.E. 803(b)(1) (hearsay exception for statements made by party-opponent). That evidence was competent and sufficient to support the ultimate facts necessary to prove the charges by a preponderance of the evidence, and the charges support the termination.

In view of its reversal of the judgment, the court declines to address the trial court's decision to place Ruroede on inactive status with back pay.

Chief Justice Rabner, Justices LaVecchia, Hoens and Patterson and Judges Cuff and Rodriguez, both temporarily assigned, join in this opinion. Justice Albin did not participate.

For appellants — Dominick J. Bratti (Wilentz, Goldman & Spitzer; Bratti and Rebecka J. Whitmarsh on the briefs). For respondent — Albert H. Wunsch III (Paul A. Krauss on the brief).