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Romeo v. State

March 13, 2009


On appeal from the Office of the Attorney General, Department of Law & Public Safety.

Per curiam.


Argued March 3, 2009

Before Judges Graves and Grall.

Barry Stewart, formerly a State Park Ranger, and his former employer, the State of New Jersey Department of Environmental Protection (DEP), are defendants in a civil action filed by plaintiff Jonathan Andrew Romeo to recover damages for injuries he sustained when Stewart shot him in the leg. The shooting occurred at 9:15 p.m. while Stewart was on duty at the Hopatcong State Park Ranger Station. Romeo entered a darkened room in the station through a side door. He had not turned on the lights when Stewart fired the shot.

Pursuant to the Tort Claims Act, N.J.S.A. 59:1-1 to 12-3, Stewart filed a request for legal representation in the civil action, which the Attorney General denied. See N.J.S.A. 59:10A-1, -2. In accordance with Rule 2:2-3(a)(2) and Prado v. State, 186 N.J. 413, 424 (2006), Stewart appeals from the Attorney General's determination.

The scope of the Attorney General's duty to provide a defense for a State employee under the Tort Claims Act is clear. If the employee requests representation, the Attorney General generally must provide for the defense of any action brought against "a State employee or former State employee on account of an act or omission in the scope of his employment." N.J.S.A. 59:10A-1; Prado, supra, 186 N.J. at 426-27. A request for representation may be denied only if the Attorney General determines "that it is more probable than not that: (1) the employee acted outside the scope of his employment; (2) the employee engaged in actual fraud or willful misconduct, or acted with actual malice; or (3) the defense of the employee would create a conflict of interest with the State." Id. at 428; N.J.S.A. 59:10A-1 to -2. This "formulation places the appropriate burden on the Attorney General to justify a departure from the general rule of representation." Prado, supra, 186 N.J. at 427.

The Attorney General's decision to refuse a defense is best grouped with those our courts have deemed quasi-adjudicative in nature. See In re Issuance of a Permit, 120 N.J. 164, 172 (1990) (discussing the cases). "Agencies acting in an adjudicative capacity review evidence, make findings of fact, and exercise discretion in applying the law to those facts."

Id. at 171. That is the process involved in making a determination that there are grounds for a refusal to provide a defense under Prado and N.J.S.A. 59:10A-2.

The Attorney General's justification for refusing "to provide representation to the employee" must be provided to the employee in "a written statement explaining the reasons for the refusal." Prado, supra, 186 N.J. at 428. The written statement not only gives the employee an appropriate explanation but also serves to "aid appellate review of the Attorney General's determination." Ibid. Once rendered, "the Attorney General's final administrative decision is entitled to the usual deference accorded to such a decision." Ibid. It will not be reversed unless "it is arbitrary, capricious or unreasonable or it is not supported by substantial credible evidence in the record as a whole." Ibid. (internal quotations omitted).

The Attorney General's written statement in this case, however, does not permit us to determine whether her decision is sustainable. "'[N]o matter how great a deference the court is obliged to accord the administrative determination, it has no capacity to review at all unless . . . the agency has stated its reasons grounded on the record . . . .'" In re Permit, supra, 120 N.J. at 173 (quoting State v. Atley, 157 N.J. Super. 157, 163 (App. Div. 1978)).

The problem here is not the adequacy of the factual record. The Attorney General can and may make a decision about representation based on "a limited record[] consisting only of the complaint, an internal investigation by a state agency, and the employee's submissions." Prado, supra, 186 N.J. at 423-24. The record in this case was more extensive. It included reports of investigations of the shooting conducted by the local police department, the Division of Criminal Justice and the State Police; transcripts of statements given by Romeo and Stewart; a statement given by another Park Ranger present at the time of the shooting; orders and policies on the use of force issued by the State Park Service and the Attorney General; a final notice of disciplinary action terminating Stewart's State employment; and an indictment charging Stewart with recklessly causing bodily injury with a deadly weapon.

The deficiency is in the lack of factual findings and reasons supporting the determination. "[A]n administrative judgment [must] express a reasoned conclusion. A conclusion requires evidence to support it and findings of appropriate definiteness to express it." Bailey v. Bd. of Review, 339 N.J. Super. 29, 33 (App. Div. 2001) (internal quotation omitted).

"It is axiomatic in this State . . . that an administrative agency acting quasi-judicially must set forth basic findings of fact, supported by the evidence and supporting the ultimate conclusions and final determination, for the salutary purpose of informing the interested parties and any reviewing tribunal of the basis on which the final decision was reached so that it may be readily determined whether the result ...

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