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Karins v. City of Atlantic City2/18/1998
administer any test." That conclusory statement misses the point and is not entitled to any deference.
Karins was charged with conduct unbecoming a City firefighter based on the violation of any law, or doing "anything for which may be arrested." A.C.F.D. Art. VII, § 2-A(c). A distinction must be drawn between: (1) whether there was probable cause to arrest for an offense, and (2) if arrested, whether the evidence was sufficient to establish guilt beyond a reasonable doubt. The significant distinction between the two is the quantum of proofs required. Although the fact finder in a quasi-criminal trial may or may not have been convinced beyond a reasonable doubt of Karins's guilt on a DWI charge, a showing of probable cause to arrest for DWI only required proof by a fair preponderance of the evidence. N.J.S.A. 39:40-50.4a; United States v. Matlock, 415 U.S. 164, 178 n.14, 94. S. Ct. 988, 996 n.14, 39 L. Ed. 2d 242, 253 n.14 (1974); State v. Slockbower, 79 N.J. 1, 16 n.1 (1979) (Schreiber, J., Concurring); State v. Whittington, 142 N.J. Super. 45, 50-51 (App. Div. 1976).
Here, there was a substantial basis to support a finding that probable cause existed to believe that Karins had been driving his vehicle while under the influence. State v. Novembrino, 105 N.J. 95, 119-22 (1987). Pronovost observed Karins driving his motor vehicle after Karins spoke with a parking attendant at the Harborfest festival. The officer then spoke to the same attendant who informed him that Karins appeared intoxicated. Based on that information, Pronovost made an investigatory stop of Karins's vehicle. Karins exited the vehicle and immediately identified himself as a City firefighter. While conversing with Karins, Pronovost observed that Karins staggered, slurred his speech, and smelled of alcohol. In the exercise of his discretion, Pronovost did not conduct a field sobriety test and did not charge Karins with DWI, but that does not mean that he lacked probable cause to do so. Futhermore, a timely breathalyzer test showing a .10% blood-alcohol level would have established guilt regardless of whether Karins passed or failed a sobriety test conducted at the scene. State v. Tischio, 107 N.J. 504, 510 (1987).
We conclude, therefore, that the City established by a preponderance of the evidence that Karins violated A.C.F.D. Art. VII, § 2-(A)(c) because probable cause existed to arrest him for DWI.
VIII.
Finally, Karins was charged with violating Operational Procedure #105, which provides that it is a violation of A.C.F.D. policy to use "pejorative slurs to refer to a person's racial or ethnic background with the purpose or effect of harassing an employee or creating a hostile work environment." The ALJ concluded that the policy did not apply to Karins's conduct. We disagree.
The ALJ's decision ignores the fundamental policy behind Operational Procedure #105, and the reasons for its enactment. The preamble to Operational Procedure #105 states the City's policy with respect to discrimination in the workplace:
The City's Discrimination Procedures Policy . . . contained in the Personnel Policy and Procedure Manual, expresses the commitment of the City to prohibit discrimination in the workplace, based on one or more of the following characteristics: race, religion, color . . . .
Harassment of an employee based upon one or more of the above characteristics is a form of prohibited discrimination. The City's policy forbids maintenance of a hostile work environment against an employee based upon one or more of the characteristics mentioned above. The work environment must be free from conduct which assaults the dignity of an employee based upon any of
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