March 20, 2009
IN THE MATTER OF LARRY MARTIN.
On appeal from a Final Administrative Decision of the Merit System Board, Docket No. 2006-1287.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 24, 2009
Before Judges Gilroy and Chambers.
Larry Martin, a police officer with the City of Jersey City, appeals from a disciplinary penalty imposed upon him by the Merit System Board (Board). We affirm.
Martin, who had been a member of the Jersey City Police Department for twenty-two years, failed to attend mandatory weapons qualification training for a new service weapon, a Glock .45 caliber handgun, on May 10, 2005. As a result, he was charged with "disobedience to a lawful order" and "absence without leave" in violation of the Police Department's rules. After holding a hearing, Jersey City sustained the charges and imposed an eight-day loss of vacation days. Martin appealed to the Board.
The matter was referred to an administrative law judge (ALJ) who held a hearing. The ALJ in his Initial Decision dated December 10, 2007, found that Martin had been given a direct order by his superior officer to attend the training session and failed to do so. The ALJ sustained the charges and the disciplinary penalty. Neither party filed exceptions, and the matter went to the Board for a final decision.
After conducting its independent review of the record, the Board agreed that the charges had been proven. However, the Board increased the penalty to a 120 day suspension. In doing so, it noted Martin's "significant prior major disciplinary history," including the following four disciplinary actions: (1) July 31, 1998, an eighty-four day suspension for being unfit for duty because he could not carry a weapon while under a restraining order; (2) May 18, 1999, a twenty-nine day suspension for assault and other charges; (3) February 12, 2001, a fine, the equivalent of thirty days pay, due to inability to perform his duty and disobedience of laws, regulations, and orders; and (4) April 15, 2004, a sixty day suspension for failing to safeguard a firearm. With respect to the latter disciplinary infraction involving Martin's failure to safeguard a firearm, the Board noted "the egregiousness of the appellant's actions, since he should have been aware of the potential dire consequences of not properly securing a firearm."
The Board stated that a 120 day suspension was a "severe major disciplinary action" that would put Martin "on notice that any future infraction may lead to his removal from employment." In reaching this conclusion, the Board considered the seriousness of the underlying incident, the concept of progressive discipline, and Martin's prior record.
On appeal, Martin contends that the Board's decision to increase the penalty was arbitrary, capricious, and unreasonable and is unsupported by the record. We disagree.
Our review of an administrative agency decision is limited. In re Musick, 143 N.J. 206, 216 (1996). An administrative agency is presumed to have acted reasonably. In re Vey, 272 N.J. Super. 199, 205 (App. Div. 1993), aff'd, 135 N.J. 306 (1994). We must sustain the Board's decision unless appellant has made "a clear showing that [the agency's decision] is arbitrary, capricious, or unreasonable, or that it lacks fair support in the record." In re Herrmann, 192 N.J. 19, 27-28 (2007). In evaluating whether this standard has been met, we make the following three inquiries:
(1) whether the agency's action violates express or implied legislative policies, that is, did the agency follow the law; (2) whether the record contains substantial evidence to support the findings on which the agency based its action; and (3) whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors. [Id. at 28 (quoting Mazza v. Bd. of Trs., 143 N.J. 22, 25 (1995)).]
When reviewing the Board's imposition of disciplinary penalties, we must accord deference to the Board's expertise in this area. Ibid. We may not substitute our judgment for that of the Board. Ibid. We will not overturn the Board's determination unless it is illegal or unreasonable. Ibid. (citing 37 New Jersey Practice, Administrative Law and Practice, § 328, at 333-34 (Steven L. Lefelt) (1st ed. 1988)). "[W]hen reviewing administrative sanctions, 'the test . . . is "whether such punishment is so disproportionate to the offense, in light of all the circumstances, as to be shocking to one's sense of fairness."'" Id. at 28-29 (quoting In re Polk, 90 N.J. 550, 578 (1982) (second alteration in original)).
In light of this standard, we find no basis to overturn the Board's decision. The governing statute and regulation give the Board the power to increase penalties when appropriate.
N.J.S.A. 11A:2-19; N.J.A.C. 4A:2-2.9(d). Here Martin had defied a direct order of his superior officer, on an important matter, namely firearms training. He had a prior history of four substantial disciplinary sanctions. As the Board stated, this more severe penalty of 120 days suspension places Martin on notice that future infractions may lead to his removal. In light of the nature of the infraction, Martin's past history of disciplinary sanctions, and the Board's policy of progressive discipline, we do not find the increase in the penalty to be arbitrary, capricious, or unreasonable.
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