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Karins v. City of Atlantic City2/18/1998
a) of the A.C.F.D. rules and regulations. The two charges, however, are merged for Dispositional purposes.
VI.
Karins was also charged with committing "epeated violation of the A.C.F.D. rules and regulations or any other course of conduct indicating that a member has little or no regard for his responsibility as a member of the A.C.F.D." Article VII, §2-A(l). The ALJ reached the legal Conclusion that Karins's sole responsibility as a member of the A.C.F.D. was to fight fires. Thus, the ALJ held that because this duty was not neglected and because he found no repeat violation in this case, there was insufficient evidence to support the charge. We disagree with the legal Conclusions upon which the ultimate decision was based.
The ALJ failed to consider the seriousness of the charges against Karins given the context of his employment setting and the necessity of the fire and police departments to rely upon one another. Not only must firefighters fight fires, but they must also display a certain level of discipline and an ability to work well within the community. In light of those observations, Karins's disruptive behavior indicated that he had little or no regard for his responsibility as a City firefighter. The repeat offender provision in the regulation does not require the second violation to be identical to the first, although Karins's prior disciplinary sanction was for uttering a racial epithet. We find that Karins's conduct constitutes a repeat violation of department rules and regulations. Thus, we conclude that Karins violated A.C.F.D. Article VII, §2-A(l).
VII.
Karins was also charged with engaging in conduct that violated the law or could have subjected him to an arrest. The ALJ concluded that there was insufficient evidence to prove that Karins had committed any offense on the night in question for which he could have been arrested. The City contends that but for the officers' exercise of their discretion not to file any charge against Karins, he might have been arrested for harassment pursuant to N.J.S.A. 2C:33-4 and for driving while under the influence of alcohol (DWI) pursuant to N.J.S.A. 39:4-50.
N.J.S.A. 2C:33-4 provides:
if, with purpose to harass another, he:
(a) Makes, or causes to be made, a communication or communications anonymously or at extremely inconvenient hours, or in offensively coarse language, or any other manner likely to cause annoyance or alarm;
[Id.]
In Hoffman, we held that "N.J.S.A. 2C:33-4(a) should generally be interpreted to apply to modes of communicative harassment that intrude into an individual's 'legitimate expectation of privacy.'" State v. Hoffman, supra, 149 N.J. at 583. We held further that because subsection (a) was aimed at the manner of communication and not the content of the speech, "in enforcing subsection (a) . . . , [the court] must focus on the mode of speech employed," and the determination must be made based on the totality of the circumstances. Id. at 583, 585.
In this instance, Karins's slur does not appear to have been made in an attempt to annoy or harass Officer Rassmann. Also, the statement was not made in a confrontational environment or in a manner intended to cause a breach of the peace. Although the racial epithet used by Karins was extremely offensive, the record does not provide a basis to conclude that his intention was to harass Officer Rassman.
In dismissing the charge that Karins could have been arrested for DWI, the ALJ found that "here was insufficient evidence that he was in violation of the drinking driving statute according to Pronovost who saw no erratic driving and did not
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