Apparent negotiations for a potential settlement halted the proceedings during the termination case against Plainsboro Police Corporal Nicholas Procaccini on February 9 and again on February 15.
But the lengthy closed-door sessions that involved the attorneys for both sides and the hearing officer didn’t seem to offer any concrete resolution, and for now, the hearing process will continue, although no date has been set.
The hearings will continue once a replacement for hearing officer Robert Czech, who has been appointed by the governor as chairman of the state Civil Service Commission, has been assigned.
The talks began about an hour and a half into the hearing on February 9. Procaccini’s attorney, Timothy Smith, had finished questioning Chief Richard Furda about the late to duty charge against his client, and asked for a two-minute recess to gather paperwork before moving to the next charge on the list.
While Smith left to discuss business with his client, others involved in the hearing also took short breaks. When Smith walked back into the conference room, where Furda and the court reporter were sitting, he asked Furda, “Can’t you just give him the benefits and let him go?”
The chief declined to answer the question, but Smith later approached Plainsboro’s Attorney Arthur Thibault, and the two went behind closed doors for more than an hour. At one point, Czech was brought into the room.
By about 4:30 p.m., all three men came back into the conference room, and Czech adjourned the meeting to February 15, when closed-door negotiations again took place before the hearing, lasting about an hour.
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.
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 opened his questioning of Chief Furda on February 9 by trying to ask for details about a traffic stop Procaccini made. The defense wanted details about the incident, in which the defense alleges Furda told Procaccini not to issue a summons to a driver because he was friends with her — the subject of a separate civil suit filed by Procaccini against Furda. Smith argued that if it was found that Furda received the civil suit before the hearing into Procaccini’s termination, it would “form a basis for him to be biased against my client.”
But Czech did not allow the question to be answered, saying “the charges [against Procaccini] do not involve the non-issuance of the tickets.” To the extent to which the defense feels the chief has violated a rule, the defense should file a complaint with the prosecutor’s office, he said. He told Smith to “stay focused on the testimony that took place in the direct.”
Thibault also argued that “using an allegation to impeach the witness” goes beyond what is called for in a hearing.
Once the issue was settled, Smith asked questions relating to the late for duty charge against Procaccini.
Police allege that Procaccini arrived at the police station 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.
Procaccini then arrived at the training little after 10 a.m., after training had begun, according to past police testimony. Procaccini allegedly told his supervisors 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. But officers have testified that it was a regular work day, and Procaccini’s claim that he was reassigned from being on the road to coming in for a training day was also disputed.
It came out during previous hearings that Procaccini had been verbally reprimanded for a similar incident regarding a shooting training, which was recorded in 2008, eight months before the April incident.
Furda testified that he had no involvement in the internal affairs investigation conducted on Procaccini. “I’m out of the internal affairs component. I don’t know about them until they’re completed.”
Furda said that he recalled being copied on an E-mail sent by then-Sergeant Jay Duffy questioning Procaccini about why he was late. “I know there was a question” about the incident, Furda said. Then, in July, two of Furda’s lieutenants made an appointment to present their reports based on their own internal affairs investigation on Procaccini. “Prior to receiving this entire packet, this E-mail is the only thing I can recall” receiving, he said.
Smith also questioned Furda about an incident relating to the same training day but involving another officer. Officer Jason Mariano also came to training at 10 a.m., and not at 6 a.m., and was later told to stay until 10 p.m. to make up for the time.
Furda testified, though, that Mariano had been brought in on that day, when he was scheduled to be off, and given a day off on a day he was supposed to work.
Still, “his hours on that day were identical to my client’s,” said Smith. “But he wasn’t disciplined on that day,” for coming in at 10 a.m. Later, Mariano filed a grievance for having to work until 10 p.m. and won the grievance and was given his four hours of time back.
Furda said Mariano won his grievance because “there was a miscommunication in training officers on that day.” When Mariano called in, Corporal George Cier told him that training started at 10 a.m. Mariano erroneously relied on that time as the start of his shift.
During the hearing continuation on February 15, Smith wrapped up his cross-examination of Furda, questioning him about Procaccini’s alleged violation of the Power DMS messaging system, through which officers are to review and sign off on policies and orders from the chief, attorney general, or other law enforcement administrators.
Plainsboro alleges Procaccini did not sign off on a number of the orders, although in some cases, a check of the system showed he opened some of the orders, but did not sign off on them. “That’s why the sign-off is important because it shows they read it,” testified Furda. “Otherwise, it just shows they opened it; not necessarily that they read it.”
Furda testified that he took over as chief in October, 2008, but did not discover until April, 2009, that there were a number of officers who did not sign off on the regulations, as required under the police general order. He gave everyone a second chance to sign off on the policies and ordered Lieutenant Thomas DeSimone to check again in June, 2009, when there were four officers, including Procaccini, who still did not sign off on the policies. The other three officers were disciplined, he testified.
Regarding Procaccini’s alleged violation of the policies for motor vehicle stops, Smith referred to a memo from Lieutenant Jay Duffy, who highlighted the issues he found when routinely reviewing tapes from officers’ vehicles during motor vehicle stops. While there were other officers who had problems with their stops, Smith argued that Procaccini was the only officer targeted for discipline.
Furda testified that Procaccini was the only one who had not asked for credentials when stopping a motor vehicle. Most of the other violations, including one item that stated that there was no microphone during one of the officer’s stops, could be addressed through training and were not as “egregious” as Procaccini’s.
Smith argued that the general order stated that officers had to test their video equipment at the beginning of the shift and that the general order describes what an officer should say during a motor vehicle stop, an issue Duffy found with another officer.
Furda said, however, that the general order “doesn’t talk to or advise how to build rapport with a motorist.”
But, “in terms of what a police officer is to say, it is specifically addressed in the general order,” said Smith.
Furda also testified that the general order was a “template that officers should follow.” But Smith said that the general order does not specify “which things are merely a template and are discretionary versus what things happened to be followed.”
Smith was trying to make a case that Procaccini was unfairly being terminated for violations of policies in the general order, although officers who allegedly violated other policies within the same order were not disciplined. “It doesn’t say which things have to be adhered to versus what things don’t.”
However, “it’s impossible to issue an ordinance that tells officers how to make a stop on a case-by-case basis,” Furda said. “You’d have to have a valid justification for modifying rules in the general order.”
Smith alleged the township developed an agenda against Procaccini and went back four years to find violations of the general order to which the police department has a generally “flexible approach.”
“These things are very, very insignificant, and they’re only being selectively enforced as it relates to my client.” For example, Smith said, Furda was conducting patrol in an unmarked car but sent summonses via mail.
Furda explained that he was situated at the George Davison and Plainsboro roads intersection in an unmarked car. He took down the license plate numbers and description of the drivers who were making illegal turns. He said the road does not allow him to pursue the cars safely, so summonses were mailed to them later. “The predicament is the traffic is very heavy, there is a bus stop there, and the road is not wide enough to make a quick K-turn,” Furda said.
Furda made it clear that he recommended termination because of the violations as well as that he had a previous disciplinary history, because he was a corporal in a supervisory position, and he had two decades of experience and should understand the rules. “This shows an ongoing disregard for the rules and regulations.” That all of the charges happened within a time period of four months added to his decision, he said.
