On appeal from the Board of Review, Department of Labor, Docket No. 165,918.
The opinion of the court was delivered by: R. B. Coleman, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges R. B. Coleman and Graves.
Claimant Sergio Gonzalez appeals from a final decision of the Board of Review (Board), dated July 21, 2008, applying N.J.S.A. 43:21-5(b) to invalidate his claim for unemployment benefits. We affirm.
Gonzalez began working for the City of Englewood Housing Authority (Housing Authority) as a bookkeeper on March 4, 2002. On August 27, 2007, Gonzalez signed a letter of resignation after being investigated by the Englewood Police Department for theft of Housing Authority property. Gonzalez and his boss, Housing Authority Deputy Director Ronnie Faison, were accused of unlawfully obtaining personal items from PC Richard & Son worth approximately $4,500 using Housing Authority funds. The Housing Authority normally purchased items from PC Richard & Son to furnish appliances for low-income housing.
On September 2, 2007, Gonzalez filed a claim for unemployment benefits. On October 10, 2007, a deputy director of the Division of Unemployment Insurance determined that Gonzalez was disqualified from benefits under N.J.S.A. 43:21-5(b), because he was discharged from employment for having committed an act punishable as a first- to fourth-degree crime under the New Jersey Code of Criminal Justice. Gonzalez filed an administrative appeal.
On December 28, 2007, Gonzalez and his attorney participated in a telephone hearing before an appeals examiner for the New Jersey Department of Labor Appeal Tribunal (Appeal Tribunal). The employer was not present at the hearing, however. During the hearing, Gonzalez admitted that he obtained the items from PC Richard & Son because "Mr. Faison told me that he needs some items for his house." He further admitted that he obtained the items by presenting a Housing Authority invoice to a salesman. According to Gonzalez, picking up appliances from PC Richard & Son did not fall within the scope of his regular bookkeeping duties; he explained that he complied with Mr. Faison's orders only because he feared that he would lose his job if he refused. Gonzalez also testified that he wrote a check (which he was not authorized to sign) to PC Richard & Son for the merchandise, but asserted it was for a value between $1,400 and $2,000, and not for $5,000 as claimed by the employer.
On January 2, 2008, the Appeal Tribunal reversed the deputy director's ineligibility determination, relying on Gonzalez's unchallenged testimony. However, on February 15, 2008, the Board remanded the matter to the Appeal Tribunal for "a hearing and decision on all issues."
The appeals examiner conducted a second hearing on May 20, 2008. At that hearing, Roslyn Anderson, the Housing Authority's executive director, testified that while Gonzalez was being questioned at the police station about the alleged theft, he admitted to her that he was a participant in the scheme and he was sorry for his participation. Anderson further testified that the police told her that Gonzalez confessed to them that he personally picked up a television and a grill from the PC Richard & Son store. She also stated that televisions and barbecue grills are not items that the Housing Authority buys to furnish low-income housing. Gonzalez invoked his right not to testify at the May 20 hearing.
In a May 21, 2008 decision, the Appeal Tribunal found that
The employer learned that the claimant had been arrested when contacted by the police. The employer appeared with the resignation form and the at the suggestion of the police, took the employer's property held by the claimant. The claimant was arrested after a police investigation caused by a retail store which alerted police to discrepancies in purchases on behalf of the employer. The claimant refused to deny or confirm whether he had picked up a flat screen television and a barbecue grill from the retail store after an approved invoice for a stove and refrigerator had been voided. The employer purchases household items with federal funds for low-income housing. The claimant is scheduled to appear in court to answer to criminal charges.
Based on these findings, the Appeal Tribunal concluded that Gonzalez was, in fact, disqualified under N.J.S.A. 43:21-5(b) for any benefits accruing from his employment with the Housing Authority because [t]he claimant's actions of picking up a flat screen television and barbecue grill after an invoice had been voided for a refrigerator and a stove . . . is punishable as a crime of the first through fourth degree under the New Jersey Code of Criminal Justice [N.J.S.A.] 2C:1-1, et seq. Therefore, this discharge is a discharge for gross misconduct connected with work.
On May 30, 2008, the Board of Review affirmed the determination of the Appeal Tribunal. It substantially adopted the Appeal Tribunal's factual findings and noted further that "the amount of the invoice in question was $4,500.00" and that "the claimant admitted to the employer that he was a participant in the ...