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In re Fox

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 20, 2007

IN THE MATTER OF MATTHEW J. FOX, CITY OF ATLANTIC CITY

On appeal from a Final Administrative Action of the Merit System Board, DOP No. 2006-4033.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted July 3, 2007

Before Judges Axelrad and Winkelstein.

Appellant, Matthew J. Fox, appeals from a final administrative action of the Merit System Board (the Board) dated May 25, 2006, which affirmed a hearing officer's determination to indefinitely suspend appellant pending the disposition of criminal charges against him arising out of a federal grand jury indictment. On appeal, appellant makes the following legal arguments:

POINT I

THE MERIT SYSTEM BOARD ERRED IN DENYING APPELLANT'S REQUEST FOR INTERIM RELIEF AND IMMEDIATE STAY OF SUSPENSION PURSUANT TO N.J.A.C. 4A:2-2.5(e) AND N.J.A.C. 4A:2-1.2 AS MATERIAL ISSUES OF FACT EXISTED REGARDING THE CITY OF ATLANTIC CITY'S REASONING FOR SUSPENDING APPELLANT.

POINT II

THE MERIT SYSTEM BOARD'S DECISION WAS ERRONEOUS AS APPELLANT FOX MUST BE IMMEDIATELY RETURNED TO DUTY SINCE NONE OF THE THREE EXCLUSIVE BASES TO CONTINUE AN IMMEDIATE SUSPENSION EXISTS.

We affirm.

Appellant is employed as a fire fighter by the City of Atlantic City. On March 1, 2006, he was charged in a federal indictment with one count of conspiracy to defraud the United States of taxes, and five counts of income tax evasion. Less than a week later, the City served a preliminary notice of disciplinary action on him, imposing an indefinite suspension pending resolution of the criminal charges. Following a departmental hearing, the City suspended appellant. On appeal to the Board, the Commissioner upheld the suspension, making the following findings:

[T]he initial issue to be determined is whether the nature and seriousness of the criminal charges support the necessity for an indefinite suspension. N.J.A.C. 4A:2-2.5(a)2 provides that an employee may be suspended immediately and prior to a hearing when the employee is formally charged with a crime of the first, second, or third degree, or a crime of a fourth degree on the job or directly related to the job. . . .

. . . Whether or not the appellant is ultimately found guilty of the criminal charges is not a matter for the Board to consider at this juncture; that determination appropriately lies with the criminal courts. . . . The appellant holds an extremely visible position of trust. The Board has long recognized that Fire Fighters hold very unique positions, and any disregard for the law is unacceptable in a Fire Fighter who operates in the context of a parliamentary organization in which the ability to follow orders is crucial to saving lives. . . . The pendency of a criminal indictment against an individual employed to protect and serve the public renders his indefinite suspension necessary in order to maintain the safety of the public and ensure effective direction of the firefighting services the appointing authority provides.

A public employee may be suspended immediately, prior to a hearing, when the employee is formally charged with certain crimes. N.J.A.C. 4A:2-2.5(a)2. Suspension is appropriate when "necessary to maintain safety, health, order or effective direction of public services." N.J.S.A. 11A:2-13. Here, given the deference afforded an administrative agency, see In re Taylor, 158 N.J. 644, 656-57 (1999); Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980), we conclude that appellant's arguments are without merit. The Board's decision was neither arbitrary, capricious nor unreasonable and was supported by substantial credible evidence in the record. We therefore affirm substantially for the reasons expressed by the Board in its May 25, 2006 determination.

Affirmed.

20070720

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