SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0127-16T3

ROBIN POLINSKI,

Plaintiff-Appellant,

v.

BURLINGTON COUNTY

PROSECUTOR'S OFFICE OF

THE STATE OF NEW JERSEY,

and PROSECUTOR ROBERT

D. BERNARDI,

Defendants-Respondents.

__________________________________

Argued May 21, 2018 – Decided August 27, 2018

Before Judges Messano, Accurso and O'Connor.

On appeal from Superior Court of New Jersey, 

Law Division, Burlington County, Docket No. 

L-1695-15.

Colin G. Bell argued the cause for appellant 

(Hankin Sandman Palladino & Weintrob, PC, 

attorneys; Colin G. Bell, on the briefs).

Laurel B. Peltzman argued the cause for 

respondents (Capehart & Scatchard, PA, 

attorneys; Laurel B. Peltzman and Evan 

Crook, of counsel and on the brief).

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court."

Although it is posted on the internet, this opinion is binding only on the 

parties in the case and its use in other cases is limited. R. 1:36-3.
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2

Plaintiff Robin Polinski appeals from an August 19, 2016 

Law Division order affirming the decision of defendant Robert D. 

Bernardi, a former Burlington County prosecutor, to terminate 

her from her position as a county investigator of the Burlington 

County Prosecutor's office, and dismissing her complaint in lieu

of prerogative writs. We affirm.

In 2014, plaintiff was served with a preliminary notice of 

disciplinary action, which set forth seven charges alleging she 

had engaged in acts of misconduct and violated certain 

provisions of defendant Burlington County Prosecutor's Office's 

standard operating procedures (SOPs). The charges arose out of 

plaintiff's alleged failure to perform certain tasks on twelve 

cases as a trial team investigator, and for her lack of candor

when confronted about her actions by her supervisors and the 

internal affairs investigator. The specific charges included 

not only that plaintiff had engaged in acts of misconduct and 

violated certain SOPs, but also had engaged in conduct 

unbecoming a law enforcement officer and insubordination.

After a six day hearing, Bernardi, who served as the 

hearing officer, issued a lengthy written decision sustaining 

all of the charges. After an additional hearing on the penalty 

to impose, Bernardi determined plaintiff's termination was in 

order. Plaintiff did not testify at either hearing. 
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Plaintiff filed a complaint in lieu of prerogative writs 

against defendants in the Law Division, alleging she was 

wrongfully terminated in violation of various provisions of the 

County Detectives and County Investigators Act (Act), N.J.S.A. 

2A:157-1 to -23, and New Jersey's Law Against Discrimination 

(LAD), N.J.S.A. 10:5-1 to -49. The court subsequently granted 

defendants' motion to sever the LAD claim from all others in the 

complaint. 

Following trial in this matter, which comprised of lengthy 

oral arguments from counsel addressing the evidence adduced 

during the disciplinary hearing, the court conducted a de novo 

review of the evidence and issued a comprehensive, forty-page 

written opinion. The court found defendants proved by a 

preponderance of the evidence that plaintiff had committed 

almost all of the acts alleged in the charges, including 

misconduct. The court further found termination was the 

appropriate penalty. 

On appeal, plaintiff contends the trial court erred because 

it: (1) precluded her from supplementing the record during the 

de novo trial; (2) failed to make credibility findings; (3) 

found certain charges to have been timely filed when they were 

not filed within forty-five days of receiving sufficient 

information to form a basis for such charges; (4) determined 
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4

there was sufficient evidence to sustain the charges against 

her; and (5) found termination was the appropriate penalty. We 

reject these arguments as unsupported and affirm. 

Under the Act, the county prosecutor has the power to 

appoint county investigators, N.J.S.A. 2A:157-10, as well as to 

remove them. N.J.S.A. 2A:157-10.1. N.J.S.A. 2A:157-10.1 

provides, in part:

Except as otherwise provided by law, a 

county investigator employed by the county 

prosecutor shall not be removed from office, 

employment or position for political reasons 

or for any cause other than incapacity, 

misconduct, or disobedience of rules and 

regulations established by the prosecutor, 

nor shall such investigator be suspended, 

removed, fined or reduced in rank from or in 

office, employment, or position therein, 

except for just cause as hereinbefore 

provided . . . .

N.J.S.A. 2A:157-10.7 provides county investigators with the 

right of de novo review in the Superior Court for disciplinary 

convictions and penalties. A de novo hearing provides a 

reviewing court with the opportunity to consider the matter 

"anew, afresh [and] for a second time." Romanowski v. Brick 

Township, 185 N.J. Super. 197, 204 (Law Div. 1982), aff'd o.b., 

192 N.J. Super. 79 (App. Div. 1983). On de novo review, the 

trial court must make its own findings of fact. In re Phillips, 

117 N.J. 567, 578 (1990). After hearing a cause de novo, the 
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5

court may either affirm, reverse or modify the hearing officer's 

decision. N.J.S.A. 2A:157-10.7. 

When evaluating credibility during a de novo review of a 

record, the fact the court does not have the benefit of live 

testimony does not alter the aforementioned standard of review. 

Ruroede v. Borough of Hasbrouck Heights, 214 N.J. 338, 357 

(2013). "Although a court conducting a de novo review must give 

due deference to the conclusions drawn by the original tribunal 

regarding credibility, those initial findings are not 

controlling." Ibid. (citing In re Disciplinary Procedures of 

Phillips, 117 N.J. 567, 579 (1990)). "Rather, the court 

reviewing the matter de novo is called on to 'make reasonable 

conclusions based on a thorough review of the record.'" Ibid.

(citing Phillips, 117 N.J. at 579).

On appeal from the trial court, this court plays "a limited 

role in reviewing the de novo proceeding." Phillips, 117 N.J. 

at 579. We decide only whether the trial court's decision was 

"supported by substantial credible evidence in the record as a 

whole" and was not "arbitrary, capricious or unreasonable."

Ibid. Thus, unless the appellate tribunal finds the trial 

court's decision "arbitrary, capricious or unreasonable" or 

"[un]supported by substantial credible evidence in the record as 

a whole," the de novo findings should not be disturbed. Henry 
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v. Rahway State Prison, 81 N.J. 571, 580 (1980) (citing Campbell 

v. Department of Civil Serv., 39 N.J. 556, 562 (1963)).

We first address plaintiff's claim the trial court 

precluded her from supplementing the record on de novo review. 

A week before trial, the court heard extensive oral argument on 

defendants' motion to bar plaintiff from introducing additional 

evidence at trial. During colloquy, the court noted that the 

record can be supplemented with additional evidence in the kind 

of matter under review. Although the court did not specifically 

cite N.J.S.A. 2A:157-10.7, this statute provides, among other 

things, that when the Superior Court is conducting a trial de 

novo on an appeal of a county investigator who has been tried 

and convicted of any charges, "[e]ither party may supplement the 

record with additional testimony subject to the rules of 

evidence."

However, when the court asked plaintiff what evidence she 

wanted to add to the record, she replied she wished to include 

evidence pertaining to the LAD claim; specifically, evidence her 

male counterparts in the workplace were not disciplined as 

severely as she was for comparable conduct. The court found 

because the issue of disparate treatment was relevant to the 

severed LAD matter but not the disciplinary one, it would not 

permit plaintiff to supplement the record with the proffered 
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evidence, to which plaintiff responded, "And that makes sense, 

that makes absolute sense to me . . . ."

The court and counsel then turned to other issues but, 

later in the proceeding, plaintiff's counsel mentioned that, in 

other cases she had handled of a similar nature, parties had 

supplemented the record by submitting certifications to the 

trial court before it engaged in its de novo review. She then 

stated, "Certification of in this case, the plaintiff but the 

appellant because she did not testify below, certification as to 

any evidence she has not related to the LAD matter. I 

understand Your Honor's precursive ruling on that." 

Although unclear, read indulgently, we interpret 

plaintiff's comment to mean she wanted to submit a certification 

on issues pertaining to the disciplinary matter, but believed 

the court had barred her from doing so. In fact, the court had 

not done so and the court, seemingly puzzled because plaintiff's 

previous proffer of evidence was limited to the LAD claim,

stated, 

Well, the evidence – [plaintiff is] allowed 

to supplement . . . and it's like, okay, 

well, what do you got? So that's why I'm 

talking to you and if you don't – since 

you're not going to do the LAD stuff, I 

didn't think there was any real thing for me 

to look at. . . . 
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Plaintiff's counsel responded that, although plaintiff had 

given statements to her supervisors and the internal affairs 

investigator about her conduct during the pre-hearing 

investigation, she did not testify at the disciplinary hearing 

and thus did not have an opportunity to "explain herself." She 

argued she wanted to give the trial court the benefit of her 

position through submitting a certification. 

The court did not make any ruling, and instead probed 

counsel about a party's right to supplement the record if he or 

she declined to testify at a disciplinary hearing. Instead of 

providing argument on the point the court raised, plaintiff 

responded, "That's fine. We can, we can just move to oral 

argument [1] on the, you know, violations and the penalty. She'll 

have her chance at the LAD trial to testify to her heart's 

content."

After turning to other matters, the court summarized all of 

its rulings during the argument and, on the issue of 

supplementation, noted there was not going to be any because 

there had not been a proffer to supplement the record with 

evidence pertaining to the disciplinary matter. Plaintiff 

 

1 Plaintiff was referring to the fact the de novo trial on the 

disciplinary action was going to consist of oral arguments from 

counsel.
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neither commented nor objected to the court's summary and 

characterization of its rulings.

Nine days later, the trial commenced and, over the course 

of two days, counsel provided oral argument on the evidence 

adduced during the disciplinary hearing. Toward the end of the 

proceedings on the second day, plaintiff stated she wanted to 

testify about such evidence. The court pointed out plaintiff 

had not previously requested she supplement the record with 

evidence pertaining to the disciplinary charges. However, and 

over defendants' objection, the court suggested plaintiff

provide a certification setting forth what she wanted the court 

to know about the evidence pertaining to the disciplinary 

charges. 

The court asked plaintiff if she could provide such 

certification the following day, and she advised she could meet 

that deadline. Then, realizing it was a Friday, the court gave 

plaintiff until the following Monday to submit her 

certification. The court also requested a brief on whether 

plaintiff had the right to supplement the record with testimony

under the circumstances. Plaintiff did not voice any objection 

to the time allotted to complete such tasks. 

The following Monday, plaintiff's counsel faxed a letter to 

the trial court advising that
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After consultation with our client, she is 

satisfied that she responded to the 

questions she was asked by the county at her 

two [internal affairs] interviews. . . . As 

a result, we will not be submitting a brief 

on the issue of supplementing the record 

with additional testimony. . . . We will be 

submitting final closing arguments and 

proposed findings by noon tomorrow as 

originally contemplated by the court's 

order.

The next day, the court faxed a letter to plaintiff's 

counsel stating, 

Pursuant to your letter dated August 15, 

2016, it is my understanding that you are 

withdrawing your request to supplement the 

record in connection with the [disciplinary 

hearing] . . ., either through live 

testimony, a certification in lieu of live 

testimony, or deposition transcript. 

Plaintiff did not object or respond to the court's letter. 

On appeal, plaintiff argues reversal is warranted because 

the trial court precluded her from testifying, in violation of 

N.J.S.A. 2A:157-10.7. The argument is wholly unsupported by the 

record. While the court determined plaintiff could not 

introduce evidence on the LAD claim – a ruling with which 

plaintiff agreed – the court never barred her from introducing 

evidence on the disciplinary matter. 

When the trial had almost concluded and plaintiff sought 

to introduce evidence on the disciplinary action, the court did 

request she provide a brief on her right to supplement the 
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record. Regardless of the ultimate merits of plaintiff's right 

to supplement the record, the court's request that plaintiff 

brief the issue was legitimate and clearly done in an effort to 

make the correct decision. Plaintiff did not object to 

supplying a brief (in addition to a certification), but later 

determined she did not need to and withdrew her request to 

supplement the record. 

Plaintiff also complains the court did not give her 

sufficient time to provide the subject brief and certification. 

However, she never advised the court the time permitted to 

submit these pleadings was unworkable, not to mention her letter 

to the court informing she was withdrawing her request to 

supplement the record indicated she was doing so because, for 

substantive reasons, there was no need for supplementation. In 

sum, under the circumstances, there is no basis for her 

contention a reversal is warranted on the ground the court 

wrongfully precluded her from supplementing the record with 

additional evidence. 

Plaintiff next argues the court "refused" to make 

credibility determinations, warranting reversal. We disagree.

During oral argument on defendants' motion to bar plaintiff from 

supplementing the record, the court did state that it would not 

make any credibility determinations. However, it is plain from 
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its written decision, which is replete with references to its 

assessment of credibility, that the court in fact made such 

determinations. It is apparent the court reviewed the 

applicable law before making its findings of fact and 

conclusions of law and realized it had to evaluate credibility. 

We reject the assertion there was insufficient evidence to 

support plaintiff's termination. To the extent this argument 

challenges the sufficiency of the evidence supporting the trial 

court's findings and conclusions, we again note our role on 

appeal is limited. We review whether the decision was based on 

substantial, credible evidence, considering the record as a 

whole. Phillips, 117 N.J. at 579 (citing Henry, 81 N.J. at 580,

Campbell, 39 N.J. at 562). Our review of the record and the 

findings and conclusions expressed by the trial court in its 

comprehensive decision compels us to conclude there is no ground 

on which to interfere with its finding plaintiff had engaged in 

conduct warranting her termination. 

Plaintiff's remaining contentions are without sufficient 

merit to warrant discussion in a written opinion. R. 2:11-

3(e)(1)(E).

Affirmed.