Tensions peaked on December 30, as the first witness for Plainsboro Township and its police department wrapped up his testimony in the termination hearing for 19-year veteran Corporal Nicholas Procaccini.
At one point during the hearing, which spanned more than four hours, Procaccini’s attorney, Timothy Smith, got into a shouting match with hearing officer Robert Czech, who yelled so loudly that an employee from another area in the municipal building came into the hearing to close the door.
Lieutenant Jay Duffy had been testifying about what he observed with regard to Procaccini’s misconduct, specifically with regard to his violation of the sick leave policy, the last of the four charges against Procaccini. The department alleges that Procaccini violated the sick leave policy after gallbladder surgery. While sick, there were days Procaccini did not call out sick, or times when he did not report his place of confinement. Other times he did not report that he left his place of confinement, the department alleges.
Instead of properly calling dispatch to report each day during sick leave, Procaccini sent an E-mail on June 7, 2009 to the chief, his patrol lieutenant, and the patrol sergeant, telling them he would not be in for the rest of June — rather than reporting it to dispatch. In addition, he allegedly listed himself back in his regular shift, making it appear as if his platoon was running heavily, even though he was not going to be at work.
When another officer from his platoon asked for a day off during that time, police administration authorized the day off, thinking Procaccini would be in for work. Because they were now short-handed, the township had to pay overtime to another officer to cover the shift, the township’s attorney argued.
During cross-examination, when a reporter entered the hearing, Smith alleged that Duffy had been in a township car with Lieutenant Thomas DeSimone in Maryland when DeSimone got into a car accident after a night of drinking. Smith also alleged that the two officers had failed to report the incident.
The comment prompted township attorney Arthur Thibault to object. Smith shot back, saying he felt that his question was necessary in proving that the department was biased and prejudiced against his client in that Procaccini was being terminated for “hypertechnical nonsense violations,” but that other officers were not being punished for their violations of police policy.
Said Thibault: “If you want to give the reporter a press conference, give the reporter a press conference,” but not during the hearing, he said.
When Czech tried to intervene to say that he was sustaining the objection, Smith accused him of being hired to rubberstamp the township’s position to fire Procaccini. In response, Czech said that “any decision that I render has an opinion attached to it,” with reasons for his decisions. “I’m not here to render a decision about some accident” that may or may not have taken place. The argument escalated, culminating in Czech repetitively shouting: “I’m sustaining the objection.”
“We’re not going to have an irrelevant ongoing tirade,” Czech told Smith about his question.
Thibault then requested that the hearing proceed privately and not in public. “Mr. Smith’s demeanor has clearly changed once the reporter comes into the room,” he said.
Smith quipped: “My demeanor and conduct will not change whether or not a reporter is here.” He said that if the meeting was closed to the public, he would still provide the press with transcripts of the hearing to make his case.
“All I’m asking you to do is act like a professional attorney,” Thibault responded.
Czech finally said “I’m not going to allow this thing to get out of control,” and directed Smith to ask questions only pertaining to the sick leave charge.
The hearing continued, and Duffy testified that “Officer Procaccini was out of work more than he was in work in 2009 for a variety of reasons.” He said that Procaccini went on workers’ compensation after a training session in the spring, came back to work, and then received news that he had to have gall bladder surgery.
Smith referred to am E-mail on May 22, 2009, from Chief Richard Furda to Procaccini thanking him for advanced notice of his need to take time off in June for the surgery and wishing him well.
Regardless of his advanced notice, Duffy said it was his opinion and understanding of police policy that officers are still required to call out each day they are out on sick leave.
He read from the policy that the officer must call in every day, at least two hours before the start of their scheduled shift, and talk to the dispatcher. At that time, the officer must state that he or she is ill, provide his or her place of confinement (if not at home), and provide a telephone number where he or she can be reached. The rules also state that officers should not turn off or unplug their phones while they are on sick leave.
Duffy said he had received “sick slips” filled out by communications officers for the days Procaccini had called out — all except for June 10 and 11.
Smith asked whether the policy applied to officers who have put the department on notice ahead of time, stating that they would be out for at least three months. “Is there a difference between heart surgery and gall bladder surgery?” he asked.
Replied Duffy: “They do have to call in every day, and in the general order, it states the only time you don’t have to is if you’re unable to,” he said. “It is my position that you have to call in each and every day unless you are incapable.”
Duffy said that if Procaccini had surgery on May 26, “other than May 26, or somewhere about then, I don’t see why he couldn’t follow the policy any other day he is going to be out.” Doing so otherwise can negatively affect the schedule and cause overtime to be needed, he added.
Smith asked whether the department waits until each day to alter the schedule if an officer tells the department he or she is going to be out for an extended period of time.
“You are going to do it in advance, but not a month out,” he said.
Smith also pointed to a follow-up E-mail Procaccini had sent to Duffy in which he states that he would be out until at least July 1, 2009. In that E-mail, Procaccini also alerts Duffy that two of the days he was scheduled to work during that period were listed as training days, and he did not want to see the department waste them.
In the E-mail, Procaccini told Duffy that he went into the scheduling system and removed himself from training for those two days and changed his schedule to reflect a regular working day instead. “He puts the town on notice,” Smith said.
However, Duffy said, “he says he is going to be out until after July 1, but he changed his schedule to say he’s working,” by changing the schedule to reflect regular days, causing the department to think he was coming in for work and that they had more officers on shift that day. This caused the need for overtime.
This is because Officer Eric Potts called in on June 7 to request off for June 15 and 16, and Lieutenant Troy Bell sent an E-mail to Duffy on June 7 — the same day that Procaccini had sent the E-mail telling him about what he did to the schedule. In the E-mail, Bell told Duffy that he had checked the schedule and had authorized Potts’ days off because it appeared there were enough officers scheduled to work those days.
“Procaccini E-mailed you immediately before that, stating he’s going to be out through the end of the month,” Smith said to Duffy. “If Procaccini was going to be out on that day, you didn’t think fit to E-mail Bell?”
Duffy said he was off from work that day and did not get the E-mails — from both Procaccini and Bell — until June 10, 2009. Smith asked why the department just did not rescind Potts’s vacation days, and Duffy told him that under the contract, once a vacation day is approved, it cannot be taken away. “I can’t force him to come into work if he’s already given the day off.”
Smith argued, however, that Duffy waited 10 days to reply to Procaccini’s E-mail. “You also said an officer like Procaccini could have access to the system.”
“He’s permitted to put a person out as ill as a supervisor,” Duffy said. “He could have put himself in as ill and notify us. Instead, he put himself in as working, creating the overtime.”
Further, Duffy argued, “the E-mail is not the procedure for calling out sick. He failed to communicate to the police department that he’s going to be out sick.”
“Even if he had modified the schedule to reflect he was ill, that would have resolved the overtime, but he still violated sick policy in that he didn’t call out,” said Thibault.
When Smith asked for a copy of a policy dictating procedures for scheduling, specifically for language governing how officers schedule themselves, Duffy said he was unsure if there were written guidelines. Smith said he finds it strange that the department has policies written for every other detail, but “you’re telling me there is no written policy that dictates how a schedule can be modified.”
“A preceding is being handled based on Duffy’s opinions of what is a violation,” he added. “If we’re going to have nuances, let’s see what the policy is.”
Thibault responded: “We don’t have a policy that says officers can’t schedule themselves,” but pointed out it was a matter that was handled by supervisors. “When no policy exists, he says he can do whatever he wants, but when a policy does exist, he still does what he wants anyway,” Thibault said of Procaccini. “That’s a nuance.”
Duffy also testified that calling out ahead of time for an extended period of time, and in the form of an E-mail, were never accepted practices.
The hearing will continue Monday, January 18, at 9 a.m. The public hearing process began in October. The police department is pursuing Procaccini’s termination based on four charges: he was late for duty; he did not follow protocol when making motor vehicle stops; he violated procedure dealing with sick leave; and he violated policy in using the department’s E-mail system. Central to the township’s argument is that there are strict laws and regulations governing police departments in New Jersey, and that Procaccini, who served as the president of the Plainsboro PBA for 14 years, violated those laws.
Procaccini’s attorney, however, has characterized Procaccini, of South Lane in West Windsor, as a whistleblower. He alleges that the charges are for behavior exhibited by many officers in the department and that his client is unfairly being targeted as a result of defending another officer whom he says was terminated for filing a sexual harassment complaint.
That officer, Jennifer Wittmer, has filed her own lawsuit against the township and its police department based on allegations of sexual harassment. Another officer, Jason Mariano, has also filed a claim alleging that, like Procaccini, he was targeted after coming to her defense.
Smith takes issue with Duffy’s prior testimony. With regard to the late for duty charge, to which Duffy testified at a hearing earlier in December, Smith handed out a copy of a memo written by Chief Richard Furda on August 21, 2009 — after the alleged late for duty charge — and a follow-up to that memo issued last month. Smith alleges the two memos “prove the department has already lied in Nick Procaccini’s disciplinary hearing.”
In the December 16 hearing, Duffy testified that Procaccini reported to work a little before 10 a.m. — just before a scheduled active shooter training session — on a day in April he was scheduled to work from 6 a.m. to 6 p.m., his regular shift. Procaccini allegedly did not have permission to come in late, they argue.
Duffy sent him an E-mail, questioning him about the incident, and Procaccini wrote back, telling him that he was given permission to come in at 10 a.m. because he was given an “owed day,” which occurs when management schedules an officer to work on a day off, and in return, schedules a different day off. Duffy explained that DeSimone is the one who scheduled the training and would have had to give Procaccini permission to come in later than his regular work time of 6 a.m., and that he could not find that he was given any permission.
When Smith asked about other types of training during that hearing, including Breathalyzer training in Sayreville, he asked Duffy whether officers were allowed to leave early instead of finishing their regular work days. Duffy denied the suggestion that officers left right from the facility and said that they have to report back to the police department and ask a supervisor if they can go home early.
The first memo, written in August by Furda to the department in response to a grievance filed by another officer, stated that “the complaint was that the officer had his schedule changed to accommodate a training day because he called out sick for the original training day. The officer felt entitled to leave when training ended because it was a training day.”
While investigating the grievance, Furda wrote that he “discovered the practice of leaving early on a training day has no foundation in policy, contract language, rule or regulation,” he said. “I know it used to apply solely to those officers who chose to leave from home to attend off-site training, and they could go home when the training was finished,” he wrote.
Furda also wrote that previously, officers qualified on duty and came right back to work after shooting. In the 1990s, the range experience was expanded to include other training, like competition courses and a live “shoot house” experience. “Due to the physical and mental stresses of the new range day, officers were permitted to leave at the end of training, around 3:30 p.m., as it was impractical to clean up and dress for work again. It has since grown to encompass all training days,” Furda wrote.
Furda wrote in the memo that he was going to implement a new policy that would schedule future training days for a full shift, “and a schedule change will be made to compensate the officer for the training time.” Furda also wrote that he found there was “no authority for allowing officers to leave work prior to the completion of their work day.”
Furda wrote that the new policy would go into effect on January 1.
The second memo was sent by Bell last month. “To better manage training days, all officers will now be required to respond to headquarters for all one day training courses,” he wrote. “You will be required to fulfill your 8.5 or 12-hour workday. This will not apply to multi-day courses as your scheduled will be re-arranged by the training lieutenant.”
According to Smith, “Duffy lied that you need permission to come in when the training time starts, and he lied about having to get permission to leave. Chief Furda’s memo clearly indicates that this became a long-standing practice within the agency, and starting January 1, 2010, there will be a new policy.”
