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Random Notes on NJ Government

Burlington judge upholds Eastampton cop’s firing.

In an August 28, 2018 ruling, Burlington County Superior Court Judge Susan L. Claypoole upheld Eastampton Township’s October 23, 2017 decision to fire one of its police officers for being untruthful during an internal affairs investigation.

According to Judge Claypoole’s 21-page written decision, the Eastampton Police Department’s Internal Affairs Unit charged Officer Michael Musser with misusing sick time by calling out sick the day before a scheduled vacation in order to make an early morning airline flight to Florida.  He was also charged with failing to notify his supervisors of his “change of confinement,” i.e. that he was on his way to Florida and not home during the day he called out sick.  These charges were relatively minor and the Eastampton Police Department sought a three-day suspension for the first and a two-day suspension for the second.

Much more serious, however, was the Department’s charge that Musser lied to Internal Affairs investigators about his flight schedule.  For this charge, the Department sought Musser’s termination.

Musser pled not guilty to the charges and a hearing was held over three days in 2017 before Township Manager Eric J. Schubiger, who acted as the hearing officer.  Internal Affairs investigators argued that Musser had scheduled a flight to Orlando that would leave Philadelphia at 7:05 a.m. on August 8, 2016.  Yet, he was scheduled to work from 7 p.m. on August 7, 2016 to 7 a.m. on August 8, 2016. So, according to the Department, Musser called out sick for the night shift to enable him to make his early morning flight.

Musser, however, claimed that his girlfriend had, in March or April 2016, booked a flight that left Philadelphia at 4 p.m. on August 8, 2016 which would have allowed him enough time to complete his night shift.  He said that he called out sick on August 7th because he was in pain from back spasms and that those spasms kept him up most of the night.  He stated that at some point on August 7, 2016, his girlfriend called Southwest Airlines to see about an earlier flight since he had already called out sick and was up most of the night in pain. He said that he left for the airport at about 5:30 a.m.

Internal Affairs officials, however, said that they became suspicious when Musser called out sick the day before a scheduled vacation.  At Musser’s hearing, a Southwest Airlines employee testified that there was no 4 p.m. flight from Philadelphia to Orlando on August 8, 2017 and that Musser’s flight had been booked on August 2, 2016 and that tickets purchased were always for the 7:05 a.m., August 8, 2017 flight.  She also testified that Southwest’s records show that Musser had the skycap print his boarding pass at 4:41 a.m. which contradicted Musser’s claim that he didn’t leave for the airport until 5:30 a.m.

Musser’s girlfriend testified that she booked the 4 p.m. flight (a flight which the Southwest representative testified did not exist) through a travel agent and that she printed out the confirmation e-mails for the 4 p.m. flight and deleted the e-mails.  She said that she did not have the boarding passes “because she does not keep trash and that [Musser’s] e-mail account was hacked so she deleted his account and created a new one after [Musser] was advised by Best Buy to do so.”  Musser said that he had no record of having taken his laptop to Best Buy because the store “did not take his computer or have any record.”

After hearing the testimony, Hearing Officer Schubiger ruled that Musser “misrepresent[ed] the crucial facts concerning when he booked what flight and why he called out sick. Under these circumstances, and despite the lack of prior discipline for such an offense, the penalty of termination is sustained.”  Judge Claypool upheld Schubiger’s decision and agreed with Schubiger that “the evidence here demonstrates that [Musser] lied when he represented that his August 8, 2016 flight to Orlando was originally scheduled for 4:00 P.M.; he lied when he claimed that the flight was changed after the original booking; and he lied regarding the time of his departure from his home which he claimed was between 5:30 A.M. and 5:45 A.M.”

Judge Claypoole also found that terminating Musser was not too harsh of a penalty because the Attorney General Guidelines and case law establish that “truthfulness goes to the heart of the duties of a police officer.”

Musser’s lawsuit challenging his dismissal, which contains several pertinent exhibits including Schubiger’s written hearing report, is on-line here.

My September 29, 2018 request to Musser’s attorney, Anthony J. Fusco, Jr. of Passaic, inquiring as to whether he will appeal Judge Claypoole’s decision to the Appellate Division, had not been answered as of this article’s writing.  Musser’s lawsuit challenging the lawsuit, which contains several pertinent exhibits including Schubiger’s written hearing report, is on-line here.   [05/28/2020 update:  On January 3, 2020, Judge Claypoole entered an order that sustained Musser’s termination after the matter had been remanded by the Appellate Division.]

By John Paff

Chairman of the New Jersey Libertarian Party's Open Government Advocacy Project