124 Cor Deve Phone: (732) 462-5470, Colts Neck, Now Jersey 07722 September 13, 2016 Fas: (732) 4313173 Web: wirwcot-necks E-mail twpen@opoatinenet VIA EMAIL ~ KYI@APP.COM TDDATYY: (732) 462-6090 ‘Ms. Karen Yi 3600 Hwy 66 Neptune, NJ.07753 Dear Ms. Yi, The ‘Township of Colts Neck received your Open Public Records Act (OPRA) request on August 26, 2016. As such, the seven (7) business day deadline to respond to your request was September 7, 2016. On September 7, 2016, I responded to your request and explained that due to the recent litigation addressing the issue of whether Judge O’Hagan’s opinion was subject to OPRA, an extension of response time was sought until September 23, 2016. The following record is now being provided in its entirety 1. Copy of opinion by Judge O’ Hagan in the Chief Kevin Sauter matter. The record is being transmitted to you via electronic mail, Pursuant to N.J.S.A, 47:1A-5.b., the cost associated with this request is $0.00. With the provision of this record, your request of August 26, 2016 is considered complete. If your request for access to a government record has been denied or unfilled within the seven (7) business days required by law, you have a tight to challenge the decision by the [insert name of agency] to deny access. At your option, you may either institute a proceeding in the Superior Court of New Jersey or file a complaint with the Government Records Council (GRC) by completing the Denial of Access Complaint Form. You may contact the GRC by toll-free telephone at 866-850-0511, by mail at P.O, Box 819, Trenton, NI, 08625, by e-mail at gre@dea.state.nj.us, or at their web site at www.state.nj.us/gre. The GRC can also answer other questions about the law. All questions regarding complaints filed in Superior Court should be directed to the Court Clerk in your County. Sinog@ly, Aa eth Kara, RMCICMC Custodian of Record 2, PRINTED ON RECYCLED PAPERROBERT W. O’HAGAN J. S. C., Retired P. O. Box 786, Oakhurst, NJ_ 07755 Phone: 732-492-7950 / Fax: 732-695-3776 email: rohagan662@yahoo.com MEDIATION / ARBITRATION OPINION OF HEARING OFFICER IN THE MATTER OF: COLTS NECK TOWNSHIP COMMITTEE v. CHIEF KEVIN SAUTER, A Disciplinary Matter Decided: August 15, 2016 On January 14, 2016 the Colts Neck Township Committee suspended its police chief of 23 years for five days without pay finding he violated ‘Township policy rules, directives and otherwise conducted himself in a manner unbecoming a police officer. Following the Chief's request for a formal hearing the undersigned was appointed as hearing officer with the assignment to conduct an evidential hearing, make findings of fact and conclusions of law, and thereafter, provide a recommendation to the Township Committee as to the resolution of the charges. Directly stated, it is the Township Committee which ultimately decides the matter. ‘The hearing was conducted on April 28, 2016. The parties, through counsel, have produced a voluminous record of prehearing briefs, post hearing briefs, reply briefs and many exhibits. I have read and considered same, as well as the cited case and statutory law and, of course, have read the transcript of the testimony.Notwithstanding the voluminous record the facts and law which underlie this matter are straight forward. At the outset it is noted certain important basic principles necessarily involved in this matter are not challenged. Thus, it is the Township Committee’s burden to prove the charges by the preponderance of the evidence. ‘The elected Township Committee controls the purse strings including payment of attendance fees to attend conferences along with the conditions governing such attendance. The governing body controls use of Township owned vehicles. Indeed, it is the obligation of the Township Committee to make sure the vehicles are used to benefit the residents of Colts Neck. Both as a function of government and as the employer, the governing body sets forth vacation policies, determines minimum required weekly work hours, the situs of such work and, finally, rules and regulations guiding employees during work hours. The Township Committee, as allowed by statute, appointed itself as the Appropriate Authority, NJ.S.A. 40A:14-118; Ordinance #2014-11. Accordingly, the governing body determines “, . . and promulgates rules and regulations for the government of the Police Department and for the discipline of its members.” Chief Sauter acknowledged the Township Committee has this authority pursuant to law and recognized his responsibility to report to the governing body. Tr. 215, 8, 9. The facts, issues and charges involved here relate to the referenced unchallenged principles.‘The issues presented are, has the Township Committee proven by a preponderance of the evidence that Chief Kevin Sauter violated rules, directives or policies governing the Police Department, or otherwise conducted himself in a manner unbecoming a police officer by: (1) Submitting to the part time , Tr. 101, 16, 17, interim Township Administrator, Tom Antus (not the governing body ) a request for payment of the attendance fee concerning a "police chiefs” conference in Chicago, Illinois? (2) Attending the conference without approval of the Township Committee? (3) Claiming entitlement to benefits over and above the requested conference attendance fee, i.e. collecting his regular salary rather than using vacation time? (4) Directing an on duty Colts Neck police officer to leave his post, use a Township owned squad car to travel back and forth to Newark Airport and pick up: a) Chief Sauter b) Mrs, Sauter ( the Chief's wife) ©) a chief from a nearby town? ‘The last set of issues and the facts relating to them are clear cut, The Colts Neck Employee Hand Book, receipt of which the Chief acknowledged, provides in Chapter two, subsection G, page 19 as here pertinent: Use of Vehicles’ Policy: Township owned vehicies shall be used only on official business and all passengers must be on Township business.......Responding to an email sent him by the former Mayor, Chief Sauter admitted he directed an on duty officers to transport himself, his wife and a fellow Chief from Newark Airport. ‘Tr. 190, 5 through 191, 16. However, the Chief contends he did not violate the rules or requirements because: (1) He was on duty (2) Throughout his career as Chief he always had a squad car pick him up following out of state conferences, (3) Use of the squad car saved the Township money. (4) Everyone does it (referring to Monmouth County Chiefs). (6) There was no emergency or other circumstance which required the on duty officer’s presence in Colts Neck It is obvious, sound logical reasons support the Township policy concerning use of Township owned vehicles. The limitations of use accord with common sense and represent such manifestly sound policy that no further discussions on that score are necessary. See as well Brown v. City of Newark, 113 NJ. 568, 572 (1989), Chief Sauter’s attempted justification prompts the observation that the squad car does not belong to him, nor even to the Police Department, but rather the car is owned by the Township of Colts Neck on behalf of its residents. Further, it is beyond dispute that the on duty officer’s responsibilities were to perform his assigned duties in the Township. He or she is not a chauffeur.It may be that historically great deference has been accorded a community's Chief of Police. For the most part Chiefs are persons of ability and integrity and deserving of respect. Nonetheless, Chiefs must follow the law and abide by the rules governing municipal employees. Perhaps as Chief Sauter contends, other Monmouth County police chiefs have been and are now being chauffeured back and forth to the airport in this fashion. However, support for such conduct stands on very shaky grounds. Drop off and pick up at the airport in a Township vehicle can hardly be considered a benefit or perk of the Chief's job. Certainly there could be emergent circumstances when such preferential treatment is appropriate; for instance, when the Chief's hands-on direction is required to personally direct police response to an emergent circumstance. To the contrary here when arguing as to his entitlement to his regular salary while in attendance at the conference, Chief Sauter offered evidence to establish he was keeping abreast of, and in control of, events at the police department using his cell phone to communicate back and forth to department personnel and others. Whatever the situation elsewhere, in Colts Neck the practice is not open to debate since limitations on use of Township cars have been set forth in clear, unambiguous language. To argue, as the Chief does “ this is the way I have always done it” provides no support for his position. Even if the Chief's past practices were known and unchallenged and fell short of adherence to sound policy requirements, in its promulgation of the Employee Hand Book the governingbody sought at the very least to clarify allowed behavior and/or change past practices or behavior. Indeed, the hand book so provides. In a broad sense, regulation of conduct is the aim of all legislation. At the end of the day, common sense dictates government vehicles cannot be used for private purpose. The Chief's contention that he was on duty and therefore entitled to be chauffeured from the airport to Colts Neck offers him no solace. As noted, one would be hard pressed indeed to argue in this circumstance that on duty police officers should leave their posts to carry the Chief and two others home from the airport. Their job is law enforcement. As to the Chief, the Employees’ Handbook’s reference to Township business concerning use of motor vehicles raises the concept the Township owned car is necessary for, helpfull in, assists or facilitates the conduct of Township business. By no means is the officer or the squad car to be used at the whim of, or for, the Chief's convenience. As earlier noted the Chief had the means to contact the department during the ride from the airport should that have been necessary. The Chief has not offered even the barest cogent argument to support the transportation of his wife and fellow chief. ‘There is no justification to support the transport of non- township employees in this circumstance. ‘The Chief's argument that he was saving the Township money belies the fact that the only expense for which he sought approval was the conference attendance fee of $350. Finally the Chief offered the argument that no emergent circumstance required the on duty officer’s presence in Colts Neck during his round trip inthe squad car. To state such position is to expose its absurdity. By their nature, emergent circumstances are not scheduled or prearranged with the police. Fortuitously no emergency occurred in this time frame. Just as fortuitously the on duty officer was not involved in a traffic accident on trips back and forth to the airport. Chief Sauter caused Township funds to be improperly spent on the on duty officer’s salary. At the same time, use of the squad car in this fashion violated legitimate rules and well-founded policies of the Township of Colts Neck. Accordingly I find the Township has sustained its burden. As to the Township's contention Chief Sauter violated its directions by submitting his request for payment of the conference attendance fee to Mr. Antus, the interim part time Administrator, rather than directly to the Township Committee, a violation has been proven and the Township has sustained its burden. The directive of November 14, 2014, T-7, can only be reasonably read to require that requests for approval to attend conferences be directed to the Township Committee. The words “The Police Chief shall not attend any conferences . . . which require the expenditure of public funds without the express written consent of the Township Committee. At least thirty days (30) days before the conference . . . the Police Chief shall provide the ‘Township Committee with . . .” are clear and without ambiguity. A letter, interoffice memo or email directed to the Township Committee would come to the attention of the governing body. Clearly, the directive required communication, not to a specific individual, but rather to the Committee whichdeliberates and decides as a body. There is no room for confusion. At the very least the Township Clerk is the Secretary to the Governing body. N.J.S.A. 40A:9-133(e)(2). As the Administrator, Kathleen Capristo, testified, always letter and other communications addressed to the Township Committee land on the Clerk’s desk. As per the cited statute, the Clerk is obliged to bring all communications to the governing body. Certainly an experienced person with 23 years as Chief should understand comments addressed to the Township Committee are brought to the body’s attention at or before public meetings. As to Chief Sauter's contention he always communicated through the Administrator, it appears Robert Bowden, the previous full time Township Administrator, was also the Township Clerk. See T-2. Certainly, blaming others for his own failure to follow clear cut directives does nothing to help the Chief's cause. The directive was addressed to the Chief's conduct, not someone else’s. Apparently Chief Sauter made his request for approval concerning payment of the attendance fee on May 28,2015, S-2, but did not follow up until September 9, 2015, $-5, when he learned the attendance fee had not been processed. In the Chief's email of September 9% he noted Kelly, a Township employee, had been directed to "hold it from processing" as his correspondence of May 28, 2015 was still on her desk. Somehow the Chief, in this circumstance, configured non-payment of the attendance fee to be an emergency and convinced the interim Administrator and the Township Clerk to poll Committee members seeking verbal approval; this despite the clear© directive of 11/14/14, T-71. Three Committee members did give such verbal approval to pay the attendance fee, S-1. As the Township properly contends, had the request been directed to the Committee as a body, discussions and reasoned decision making would have allowed for inquiry of the Chief to answer questions, if any, concerning the purpose and/or expected benefit to be derived from the conference. Approval given based upon a telephone poll could perhaps be problematic, as the Township contends, since the tenor of the discussions is unknown. However, it is inferred at a public meeting the bill for the attendance fee was approved. Approval for the expenditure of public funds is done at an open public meeting. N.J.S.A. 40A:5-17. It is this resolution approving the payment of the attendance fee which precludes the Township from sustaining its burden that the Chief attended the conference without approval. While the Township had not sustained its burden, certainly a timely request, properly directed and pursued, would have allowed for an exchange of views and perhaps satisfactory resolution of this and other issues. Rather than taking the opportunity to explain the benefits to the Police Department to be gained from his attendance at the conference, Chief Sauter unnecessarily complicated his circumstances. ‘The question of whether Chief Sauter improperly claimed entitlement to his regular salary while attending the conference requires consideration of the testimony at the hearing and the exhibits. Kathleen Capristo testified that shortly after her appointment as Administrator she met with Chief Sauter, one10 on one, as part of a series of meetings to get acquainted with department heads. This meeting occurred on October 7, 2015. The Administrator, in meticulous detail, described the discussions with the Chief. Among many topics, the Chief lamented that the Township would not pay for either lodgings or meals while any employce attended a conference and stated he would have to use vacation time to attend the Chicago "chief's conference." Tr. 51, 17 - 54, 18; 109, 10-23. Chief Sauter admitted the Administrator had accurately recounted the discussions in every single aspect, except as it concerned use of vacation time. ‘Tr. 212, 17-20. Not only is Ms. Capristo a credible person, her testimony is corroborated by the exhibits marked into evidence. Indeed, in his testimony the Chief was forced to acknowledge, as the economic climate changed, the Township Committee, as far back as 2009, reframed its policies. Thenceforth, employees, not taxpayers, would be responsible for paying the costs of hotel rooms and/or airfare if conferences were to be attended. Tr. 194, 23 - 194, 19. In particular, the Chief admitted after forceful cross examination, the governing body was concerned with his travel and conference costs. Tr. 194, 20-24. A review of the exhibits confirms the Chief improperly claimed his salary while at the conference. On August 19, 2014 the Township Committee directed the Chief must work no less than 40 hours per week and specified same to be performed within the Township. T. 4. As well, the Chief was to detail the time involved in individual tasks and, as appropriate, the nature of the individual tasks. I infer Chief Sauter explained thereafter that an exchange of views with fellow chiefsae as to their experiences, strategies and techniques provided benelit to the Colts Neck Police Department and consequently meetings with fellow chiefs should be considered part of the 40 hour work week. T-5. Apparently having reservations concerning the Chief's work habits, the Committee asked for specifics. T. 5, 9/8/14. Chief Sauter responded noting ten separate events or functions that he believed should be considered as part of his work week. He did not refer to the event in question here nor other events conducted by the sponsor T. 5,9/10/14. On February 16, 2015 Chief Sauter acknowledged in a somewhat different circumstance that the Committee required that he use vacation time to attend a conference in Maryland. ‘T.10, In response to other declarations put forward in the Chief's correspondence, then Mayor James Schatzle firmly advised the Chief that the Township Committee expected Chief Sauter to follow issued directives noting if he did not disciplinary action would result. The Mayor reiterated the Township's oversight of its Chief's attendance at seminars and training sessions which required the expenditure of public funds . T.11. See also the first sentence of Chapter two, subsection B of the Colts Neck Employee Handbook, 7.16. Finally when making his request for the attendance fee, Chief Sauter noted the cost to the Township would be $350. No mention was made regarding entitlement to his regular salary. Considering the directive, the Chief correctly advised Ms. Capristo he would have to use vacation for the period at the Chicago conference.12 ‘The Township has satisfied its burden that Chief Sauter improperly claimed entitlement to his regular salary under the facts and circumstances involved here. Certainly the Township must understand, especially in these troubled times, police departments need training to effectively deal with new threats. On the other hand, the Chief must explain in sufficient detail how and why certain conferences, etc. may serve to properly equip the police department with the tools and knowledge to address present day dangers. As previously noted, the Supreme Court, in Brown v. The City of Newark, supra, explained in a different circumstance achieving a balance is a legislative function not to be disturbed except in the rarest of circumstances. As to the governing body's concerns or significant doubts regarding the work habits of Chief Sauter. Chief's time sheets, T,14, for 10/19/15 to10/22/15, just before the conference here, do nothing to dispel the view that the Chief spends an inordinate amount of time in meetings and functions far removed from the Township. Perhaps the time period is not fully representative of the Chief's typical work week but he did attend meetings in Sayreville, Atlantic Highlands, Freehold, Englishtown and then Freehold again over a few short days. Attendance at worthwhile local meetings and other more distant seminars and training sessions perhaps might be important to properly guide the department. However, it appears the governing body requires more attention given to Colts Neck matters by its Chief.13 ‘The Chief contends the 45 day rule, NJ.S.A. 40A:14-147, was here violated because the charges were not brought until January 16, 2016 . His legal argument was directed primarily, if not exclusively, to attendance at the conference without the approval of the Township Committee, which charge the Township did not sustain. In all respects the Chief's position concerning the 45 day rule set forth in NuJ. .40 A-14-147 is without support in law or fact. ‘The statute is designed to prevent undue delay in the bringing of charges against police officers, but recognizes at the same time problems may well result from a premature rush to bring charges before the facts are known. Consequently, a balance must be achieved to preserve the right to a speedy resolution of issues or potential charges, but also with a view to clear the air, so to speak, so that department morale as well as public confidence in the municipal government, its police department and officials is preserved. The statute does not, and should not, encourage the filing of unwarranted or prematurely developed claims merely to satisfy an arbitrary time line. Thus, the 45 day time period in the statute’s specific words begins only when the person or body having the responsibility to bring charges has sufficient information to do so. The statute provides in circumstances when the charges or some of them have been referred to the County Prosecutor for investigation, the time period begins when the criminal investigation is complete. Here there was such a referral (November 24, 2015) and, subsequent return of the charges to the Colts Neck Township Committee (December 3, 2015). See defendant's14 memorandum. Measured from December 3, 2015 the charges comply with the statute. Moreover and importantly, the Chief in his testimony explained the triggering event leading to the charges, i.e a Colts Neck resident saw the pickup at the airport. Tr. 190, 17 ~ 20. It is reasonable to infer, as the Chief has, that a comment regarding same was made to the Township Committee which in turn triggered the exchange of emails between the former Mayor and the Chief referenced earlier and lead ultimately to the charges. As suggested, Courts have counselled that delay is to be avoided but with the caveat that premature filing of charges, before the charges are fully known and understood, must be avoided as well. Aristizbal v. City of Atlantic City,380 N.J. Super. 405 at 427, 428 [Law 2005]; Grubb v. Borough of Hightstown, 331 N.J. Super. 398, at 406-409 [Law 2000] affd N.J. Super. 333 [App. Div.] Commenting upon the statute, the court noted that it is prudent to await the Prosecutor's disposition before charges such as those involved here are made. Grubb v. Borough of Hightstown, 331 N.J. Super. 398, 409 [Law 2000] affd 353 N.J. Super. 333 {App. Div.] Chief Sauter further contends the charges must be dismissed because they are vague, claiming he was not given plain notice of what he had done wrong. West New York v. Bock, 38 NJ. 522 (1962). Certainly a layman, with common sense who had no connection with either the police or the law, would understand the charges set forth in T.1. See Pepe v. Township of Springfield, 337 NJ. Super. 94 [App. Div. 2001] at 97, 98. The charge of directing an onie duty police patrol officer to leave his post to pick up persons at the airport could not have been clearer. Charging violation of directives is by no means confusing. Certainly the reference to conduct unbecoming a police officer is as. clear as the law requires. In re Taylor, 158 N.J. 644, 656-657. Ata minimum to earn the public's respect, the Chief as with all police officers must obey the law. Moorestown Tp. v. Armstrong, 89 N.J.Super. 560 (N.J. Super. 1968). Indeed, one infers the resident who observed the squad car was offended enough to bring the matter to the attention of the Appropriate Authority, In re Taylor, 158 N.J. 644, 656, 657. Finally and regretfully the Chief argues the Township offered only hearsay evidence to satisfy its burden. This is not accurate. More importantly the Chief's counsel was advised objections would have to be made on a question by question basis. Tr. 7, 20 -23; 40, 20 - 41, 7; 42, 5-21; 47 —48, 19. With that framework, rulings were made. Counsel has not specified precisely which questions and answers he now finds objectionable. However, it is obviously impermissible to sit back without objection when informed as to the conduct of the hearing and later contend the evidence adduced is inadmissible. This approach, to put it mildly, does not accord with good practice. Turning to the penalty to be imposed by way of discipline: As the Township argues improper use of an on duty officer and squad car are serious offenses. Not only was the Township unnecessarily exposed to potential liability claims stemming from the trip back and forth to the airport16 potential liability claims stemming from the trip back and forth to the airport but as well claims concerning improper use of manpower if an emergent circumstance had unexpectedly occurred. Further and importantly there was the expenditure of public funds for this improper activity. Without question, the Chief’s actions had the potential to undermine morale (line officers at the least reasonably expect the Chief and other brass to obey the law) and public confidence is shaken when citizens observe violations of the law by their own police. A five day suspension without pay is appropriate. While the Township has sustained its burden regarding the Chief's nonuse of vacation time, as well as the more technical violation of directing his attendance request to the part time interim administrator, a concurrent five day suspension is appropriate, i.e no additional disciplinary measures are required. ‘The vacation v regular salary issue is of course complex and fact driven. Conferences, conventions or meetings should be at the expense of the Tax Payers only when public employees can be reasonably expected to gain knowledge or skills essential to their jobs. The Governing Body must act as the gate keeper. That is the Township Committee, the keeper of the purse, is charged with the responsibility to determine the potential value if any to be gained by attendance,etc.at such functions. Therefore the Governing Body must be informed as to the particulars. . The Committee must have the opportunity to inquire if similar less time consuming events are available. In making it’s decision the Committee should have the time to consider if similar events were previously attended. Certainly duplication should be avoided,. At17 the end of the day the Committee should be in a position to determine if there is benefit to be gained . Chief Sauter ,by his conduct , did not allow such reasoned or judicious decision making. Starting with his initial application, thereafter ignoring the hold put on processing the application and by his pretextual creation of emergent circumstances requiring immediate consideration of the application he effectively kept the Township Committee out of the decision making.. Effectively Chief Sauter not the elected officials ,;made the decision which of course impacts Colts Neck Tax Payers. Directly put public employees primarily acting on their own can not make the decision to attend a conference at public expense. It is basic the Governing Body has a fiduciary relationship to the Tax Payers. Public monies should be spent wisely. To perform it’s function the ‘Township Committee needs timely appropriate input from it’s employee and the opportunity to satisfy it’s concerns . In this circumstance therefore it is Chief Sauter who must use his vacation for the time at the conference and travel to and from. ‘The reprimand of June 2, 2014, T.17, considered only as to penalty, supports the view that suspension without pay is the appropriate discipline. Clearly a reprimand did not prove effective. Respectfylly submitted: ONgo- Robert OMAGar