On appeal from the Final Administrative Decision of the Merit System Board, Docket No. 2006-4931.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo and S.L. Reisner.
Appellant Robert Lacaillade appeals from a final administrative decision of the Merit System Board (Board) affirming a determination by the Department of Corrections (DOC) to remove his name from the list of candidates eligible for appointment to the civil service title Correction Officer Recruit on the ground that appellant had an unsatisfactory employment record. We affirm.
In 1992, appellant was terminated from his employment as a police sergeant with the City of Millville for a variety of reasons, including violation of the police department's rules and regulations regarding obedience to laws, misconduct, neglect of duty, and truthfulness. Among other things, the City determined that appellant had made false accusations and filed a false police report. These charges were the subject of a contested disciplinary hearing in the Office of Administrative Law (OAL), where they were proven to the satisfaction of the administrative law judge (ALJ). Thus, the ALJ upheld the City of Millville's action in terminating appellant's employment as a police officer because of appellant's "egregious abuse of police power." On appeal, the Board upheld appellant's termination, and in 2001, we affirmed the Board's decision. Robert Lacaillade v. City of Millville, A-5206-98T1 (App. Div. April 2, 2001) (slip op. at 8).
DOC then sought to remove appellant's name from the Correction Officer Recruit eligible list. In view of the proven disciplinary charges and the resulting termination of his police employment, the Department of Personnel (DOP) found that DOC had presented a sufficient reason to remove appellant's name from the eligible list pursuant to N.J.A.C. 4A:4-6.1(a). On appeal, the Board affirmed appellant's removal from the open competitive list for Correction Officer Recruit, reasoning that N.J.A.C. 4A:4-6.1(a)(5) permits removal simply where the candidate has been terminated from public service for disciplinary reasons. Citing N.J.A.C. 4A:4-4.7(a)(1) and N.J.A.C. 4A:4-6.1(a)(7), the Board also reasoned that the appointing authority has the discretion to consider a candidate's history and qualifications in determining suitability for appointment, and further to remove a candidate from the eligible list who has an employment history that adversely relates to the position he or she seeks. The Board ultimately found that appellant's serious disciplinary violation of falsifying police records "clearly adversely relates to the position [of Correction Officer Recruit]," who is a law enforcement officer holding a visible and sensitive position.
On appeal, appellant challenges the Board's action as arbitrary, capricious and unreasonable. We disagree.
Our scope of review of an agency decision is limited. Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963). In challenging the agency's conclusion, claimant carries a substantial burden of persuasion, and the determination by the administrative agency carries a presumption of correctness.
Gloucester County Welfare Bd. v. State Civil Serv. Comm'n, 93 N.J. 384, 390 (1983). We also accord substantial deference to the interpretation given by the agency to the statute and regulations it is charged with enforcing. Bd. of Educ. of Twp. of Neptune v. Neptune Twp. Educ. Ass'n, 144 N.J. 16, 31 (1996). We will overturn an agency determination only if it is found to be arbitrary, capricious, unreasonable, unsupported by substantial credible evidence in the record as a whole, or inconsistent with the enabling statute or legislative policy. Barry v. Arrow Pontiac, Inc., 100 N.J. 57, 71 (1985); Gloucester County, supra, 93 N.J. at 391; Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980); New Jersey Guild of Hearing Aid Dispensers v. Long, 75 N.J. 544, 562-63 (1978).
Governed by these standards, we are satisfied that sufficient credible evidence supports the Board's decision. It is also soundly based in law. A correction officer holds a sensitive public safety position, see Henry, supra, 81 N.J. at 578-80; Moorestown Twp. v. Armstrong, 89 N.J. Super. 560, 566 (App. Div. 1965), certif. denied, 47 N.J. 80 (1966), and the filing of a false police report is serious misconduct that indisputably relates adversely to that position, N.J.A.C. 4A:4-4.7(a)(1); N.J.A.C. 4A:4-6.1(a)(7). Together with appellant's termination from public service for disciplinary reasons, such proven serious misconduct constitutes sufficient cause for removal of appellant's name from the eligible list. N.J.A.C. 4A:4-6.1(a)(5).
Appellant's contention that he should have been given the opportunity in the list removal case to explain the circumstances surrounding the violations that led to his termination as a police officer is devoid of merit. R. 2:11-3(e)(1)(E). Suffice it to say, he was afforded a hearing on the disciplinary violations and a fair opportunity at that time to both defend against the charges and convince the Board that his conduct did not warrant the discipline of termination, a fact we noted on the previous appeal. Lacaillade v. City of Millville, supra, slip op. at 5. Equally meritless is appellant's final argument that there was "good cause" to overlook his disqualification. N.J.A.C. 4A:4-6.1(b). Under the regulation, a candidate otherwise disqualified by reason of prior termination from public service for disciplinary reasons may be considered for the civil service appointment if the public employer agrees there is "good cause." Clearly, the DOC did not find "good cause" and we do not consider the Board's consideration of appellant's disciplinary termination either arbitrary or unreasonable.