A judge has ordered Montclair to reinstate a former cop who was fired over an alleged domestic dispute
NEWARK -- A Superior Court judge on Monday ordered Montclair officials to reinstate a former township police officer with back pay after he was fired in connection with an alleged domestic dispute.
In handing down the ruling, Judge Vicki A. Citrino found "not a scintilla of evidence" to support the township's disciplinary charges against Officer Joselito Nebiar, who was suspended without pay in June 2013 and ultimately terminated in December 2014.
The officer's dismissal came more than a year after the alleged victim recanted her claims and an Essex County grand jury declined to issue charges against Nebiar in regard to the incident, according to the judge's written decision.
Following the grand jury's determination, the township violated Nebiar's rights in terms of when disciplinary charges must be filed and hearings must be held, the judge said.
"The actions of the Township of Montclair were patently skewed against Officer Nebiar," Citrino wrote in her decision.
The judge's opinion was issued in a lawsuit Nebiar filed against the township last year. In addition to Nebiar's reinstatement, Citrino directed township officials to provide back pay starting from the date of his suspension.
Nebiar's attorney, Patrick Toscano, said on Wednesday that the officer is owed about $270,000 in back pay.
"It need not be said that we are exceedingly pleased with the judge's decision," Toscano said in a statement. "Why the former Chief of Police and the Township illegally terminated Officer Nebiar only he can answer. The action Dave Sabagh took against our client from day one remains both bemusing and quizzical."
Joseph Hannon, an attorney who represented Montclair in the matter, said on Wednesday he needed to discuss the judge's ruling with township officials and he declined further comment.
The series of events leading to Nebiar's termination began in February 2013, when he was charged in a domestic violence complaint filed by a woman, according to the judge's decision. The woman later dismissed the complaint, the decision states.
Nebiar and township officials entered into an agreement in April 2013 where no disciplinary charges were filed against him regarding the woman's allegations and he agreed to follow the recommendation of a psychologist for treatment and counseling, the decision states. The psychologist, Daniel Schievella, had conducted a "fitness for duty examination" of Nebiar, the decision states.
On June 5, 2013, Nebiar and the woman were involved in an alleged domestic dispute, and Nebiar was charged with aggravated assault and weapons offenses, the decision states.
The woman recanted her statements on June 6 and Nebiar was placed on unpaid suspension on June 7, the decision states. On Sept. 27, 2013, the Essex County Prosecutor's Office notified Montclair that the grand jury decided to not indict Nebiar in connection with the incident, the decision states.
Schievella conducted a second examination of Nebiar in October 2013 and ultimately determined he was unfit for duty and recommended his termination, the decision states.
In January 2014, then-Montclair Police Chief David Sabagh filed disciplinary charges against Nebiar in connection with the alleged domestic dispute in June 2013, the decision states. A disciplinary hearing was held over three days between June and August of 2014, the decision states.
Based in large part on Schievella's findings, the hearing officer in December 2014 recommended Nebiar's termination after finding him guilty of the charge of "incompetency or inefficiency," the decision states.
But in Citrino's decision, the judge was critical of Schievella for not contacting the alleged victim, saying the psychologist accepted the woman's allegations as the truth. The judge also noted how the woman was not called as a witness at the disciplinary hearing.
"Officer Nebiar was convicted of violating the department rules based upon allegations of domestic violence without having the opportunity to confront or cross-examine his accuser," the decision states.
The judge said she was impressed with the testimony of another psychologist, Donald Franklin, who testified on Nebiar's behalf at the disciplinary hearing. Franklin, who determined Nebiar was fit for duty, cited problems with the tests administered by Schievella, court documents state.
Citrino also credited the findings of a third psychologist, John Rotondi, who was treated Nebiar around the time of Schievella's second examination and determined Nebiar "was doing very well with his therapy," the decision states. Rotondi told township officils in November 2013 that Nebiar was fit to return to duty, the decision states.
"This Court is persuaded by the reports of the treating psychologist, Dr. Rotondi and the testimony of Dr. Franklin," the decision states.
As for the timing of the disciplinary charges against Nebiar, Citrino said that, under state law, they should have been filed within 45 days of Sept. 27, 2013, when prosecutors told Montclair the grand jury declined to file charges, and then hearings should have been held within 30 days after he was served with a copy of the complaint against him.
But Nebiar's charges were filed 105 days after prosecutors notified the township about the grand jury's decision and his hearings were held several months later, the decision states.
"As such, this Court finds that the Township of Montclair violated Officer Nebiar's rights in failing to comply with the statutory provisions in failing to timely a Complaint against him and in failing to hold the hearings," the decision states.
Bill Wichert may be reached at bwichert@njadvancemedia.com. Follow him on Twitter @BillWichertNJ. Find NJ.com on Facebook.