On certification to the Superior Court, Appellate Division.
The issue in this appeal is whether the Merit System Board properly removed petitioner from his position as a police officer with the East Orange Police Department.
While under the influence of alcohol, petitioner fired his service revolver in the direction of a residence on the campus of then-existing Upsala College. Investigators found nine spent shell casings traceable to petitioner. No one was injured.
The City of East Orange (respondent) decided to suspend petitioner with conditions, rather than discharge him. The parties memorialized the terms of petitioner's suspension in a "last chance" agreement (LCA). The LCA attached three conditions to petitioner's suspension in lieu of discharge. Condition A required that petitioner would enroll in a program for alcohol recovery and that the program selected would be mutually acceptable to the parties. Conditions B and C required that petitioner satisfactorily complete the program and that, following his release from the program, he would be counseled by a licensed substance abuse counselor. The LCA also stated that the respondent would determine in its sole discretion when the conditions were met. Consistent with that agreement, respondent suspended petitioner for ninety working days, beginning January 5, 1997 and ending May 20, 1997. Although the LCA reflected that petitioner could return to work only when he completed the program for alcohol recovery, he did not begin attending such a program until May 5, 1997, fifteen days before his suspension was scheduled to end. Following a departmental hearing, respondent discharged petitioner.
Petitioner appealed to the Merit System Board (Board), which transmitted the matter as a contested case to an administrative law judge. The administrative law judge upheld the discharge, finding that petitioner had not complied with his supervisor's previous directive to inform the department by January 10, 1997 of the specific recovery program that he had selected. Although petitioner did enroll in a program late in the suspension period, the administrative law judge found that he did not complete it within the period of suspension or within a reasonable time from the date of enrollment. The Board adopted the findings of the administrative law judge that petitioner violated the LCA and that dismissal was appropriate.
The Appellate Division affirmed. _____ N.J. Super. _____ (App. Div. 2001). The court noted the standard of review for administrative agency decisions, i.e., that reversal is appropriate only if the decision is arbitrary, capricious or unreasonable or is not supported by substantial credible evidence in the record as a whole. The court explained that the record contains no evidence that petitioner ever successfully completed an alcohol recovery program. The court also explained that although the LCA did not specifically provide a time limitation for completion of the alcohol recovery program, it was reasonably inferable from all of the circumstances that petitioner was required to enroll as soon as possible after signing the agreement and to complete the program before he could return to work. Based on those facts, the Appellate Division saw no basis to reject the Board's determination.
HELD: The judgment of the Appellate Division is AFFIRMED substantially for the reasons expressed in the Appellate Division's opinion. Under the limited standard of review applicable to administrative agency decisions, there is no basis to overturn the decision of the Merit System Board that petitioner violated the last chance agreement and that dismissal was appropriate.
1. Given the dangerousness of petitioner's initial conduct, respondent acted in the public interest by requiring him to comply with both the letter and spirit of the LCA. Respondent obviously was not satisfied with the slowness by which petitioner identified and enrolled in a suitable program, his failure to keep respondent abreast of his progress, and his failure to complete the program itself. The LCA grants respondent the discretion to deem petitioner in breach of the agreement, justifying his dismissal. (Pp. 4).
2. Even if the LCA did not afford respondent that degree of discretion, the Court's disposition would be the same. Petitioner was expected to enroll in and complete a recovery program in a timely fashion, as the LCA's text and its surrounding circumstances make clear. Petitioner simply did not perform as contemplated by the parties, warranting his discharge. A contrary conclusion likely would chill employers from entering into last chance agreements to the detriment of future employees. (Pp. 4 to 5).
The judgment of the Appellate Division is AFFIRMED.
JUSTICE LONG, dissenting, joined by JUSTICES ZAZZALI and ALBIN, believes that the terms of the LCA were not ambiguous and required that petitioner enroll in an alcohol rehabilitation program within the suspension period, but did not require that he complete it within that time. She contends that because petitioner enrolled in a program within the suspension period, he therefore complied with the provisions of the LCA and is entitled to a remedy.
CHIEF JUSTICE PORITZ and JUSTICES COLEMAN, VERNIERO and JUDGE KING, temporarily assigned, join in this opinion. JUSTICE LONG filed a separate dissenting opinion, joined by JUSTICES ZAZZALI and ALBIN. JUSTICE LaVECCHIA did not participate.
The opinion of the court was delivered ...