Six months suspension was maximum penalty
By: Cara Latham
BORDENTOWN TOWNSHIP The Appellate Division of Superior Court has ruled that dismissing John Carter, a patrolman fired by the Township Committee in 2004 for not adhering to sick-time regulations and sleeping while on duty, was too severe a punishment.
The decision was handed down May 8, but the court sent the case back to the state Merit System Board with a direction that it impose a penalty short of removal. The Merit System Board is an independent body that rules on appeals involving disciplinary actions taken against certain state, county and municipal employees.
According to state law, the maximum penalty the Merit System Board can impose is a six-month suspension, meaning that Mr. Carter was would have returned to work a year and a half ago, after serving a six-month suspension, said Mark W. Catanzaro, Mr. Carter’s lawyer.
But the township has requested that the state Supreme Court hear the case, he said Monday, and the Merit System Board has not yet imposed a lesser penalty.
"Yes, we appealed the decision and they (the state Supreme Court) typically don’t set a time table and we have to wait on a decision of whether or not they will hear the case," said Bordentown Township Mayor Mark Roselli.
But Mr. Roselli said that he could not comment because it is his policy not to comment on pending litigation.
In July 2004, Judge Jeff S. Masin of the state Office of Administrative Law found Mr. Carter guilty on charges brought against him for various incidents of misconduct that occurred between the summers of 2000 and 2001.
Mr. Carter, who joined the Police Department in 1991, was originally issued a notice of termination from the department in November 2001 for being asleep in his patrol car on Route 130 during three night shifts the previous June and for several unauthorized absences. He continued to work as a patrolman during the time between 2001, when the termination was issued, and 2004, when the judge found him guilty of misconduct.
Mr. Carter appealed Judge Masin’s June 2004 decision to the state Merit System Board, which accepted and adopted Judge Masin’s decision. Mr. Carter then appealed to the Appellate Division of state Superior Court.
The case was heard before Judges Mary Catherine Cuff, John S. Holston, Jr. and William P. Gilroy. In their opinion, which is posted on the Appellate Division’s Web site, the judges said there was evidence that Mr. Carter was guilty of the charges. "Removal of (the) appellant from the department, based on the sleeping on duty charges does not conform with the progressive punishment principle, particularly in light of appellant’s meager disciplinary history and his medical condition. We therefore remand to the Board for imposition of discipline short of removal," stated a court document from the matter. Mr. Carter had Lyme disease, according to the document.
The state Supreme Court has not decided if it will hear the township’s appeal of the decision, but Mr. Catanzaro said he is pleased and said that Mr. Carter is happy to go back to work.
"Unless the Supreme Court accepts the township’s case, they have to put him back to work," he said.
If Mr. Carter heads back to work as a patrolman, he will work "whatever hours a patrolman" works, and "he won’t be treated any differently than anyone else," said Mr. Catanzaro.