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Karins v. City of Atlantic City2/18/1998
rry out the Civil Service objective and to effectively implement a comprehensive personnel management system. N.J.S.A. 11A:2-6(d). The state regulation, providing that a state employee may be subject to discipline for conduct unbecoming a public employee, N.J.A.C. 4A:2- 2.3(a)(6), was promulgated pursuant to the Civil Service statute. The second charge was based on Article VII, § 2-A(a) of the A.C.F.D. rules and regulations that provides that "ot conducting oneself in customary rules of good behavior observed by other law abiding citizens, in and out of uniform," constitutes conduct unbecoming a City firefighter.
Conduct unbecoming a firefighter or other public employee , in many ways, is reminiscent of the common-law offense of misconduct in office and the statutory offense of official misconduct, N.J.S.A. 2C:30-2. The contours of the common-law offense were not always perfectly clear. State v. Hinds, 143 N.J. 540, 544 (1996). Before the common-law offense was abolished in 1979 by the Code of Criminal Justice, courts brought clarity to the offense by requiring as an element of the offense that the alleged conduct "involved and touched" the public employment of the accused. Id. at 546. Whether the offense was committed off-duty or during the working hours was not relevant. Ibid.; State v. Bullock, 136 N.J. 149, 153-55 (1994); State v. Johnson, 127 N.J. 458, 462-63 (1992); Ward v. Keenan, 3 N.J. 298, 309-11 (1949). Unlike the criminal charges of misconduct in office or official misconduct, the present disciplinary case based on conduct unbecoming a public employee in the First Amendment context does not require the contours of those charges to be defined with the same level of precision as that required for criminal offenses when the Pickering/Connick standard has not been satisfied.
New Jersey courts have applied the standard of "conduct unbecoming" in numerous cases involving the discipline of police officers. For instance, in In re Emmons, 63 N.J. Super. 136 (1960), the Appellate Division confronted the issue whether an off-duty police officer's refusal to cooperate and to submit to a sobriety test following an automobile accident constituted "conduct unbecoming an officer." Id. at 140. The court observed that "he phrase is an elastic one," that "has been defined as 'any conduct which adversely affects the morale or efficiency of the bureau . . . which has a tendency to destroy public respect for municipal employees and confidence in the operation of municipal services.'" Ibid. (quoting In re Zeber, 156 A.2d 821, 825 (Pa. 1959)).
The standard adopted in Emmons was enunciated by the Supreme Court of Pennsylvania in a case in which a Pittsburgh firefighter was charged with "unbecoming official or personal conduct" after he was arrested and indicted for indecent assault, adultery, and contributing to the delinquency of a minor. Zeber, supra, 156 A.2d at 823. Following his acquittal, the fireman's request for reinstatement was denied. Ibid. Noting the different burdens of proof at a criminal proceeding and a disciplinary hearing, the Pennsylvania Supreme Court emphasized that in determining whether "nbecoming conduct on the part of a municipal employee , especially a policeman or fireman," supports disciplinary action, "t is sufficient that the complained of conduct and its attending circumstances be such as to offend publicly accepted standards of decency." Id. at 825.
More recently, the Appellate Division reiterated the elasticity of the phrase "conduct unbecoming an officer," in a case in which two off- duty police officers were disciplined for becoming inebriated and engaging in a fistfight and wrestling match. Hartmann v. Police Dep't of Ridgewood, 258 N.J. Super. 32, 39
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