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In re Cornish

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 22, 2010

IN THE MATTER OF BRUCE CORNISH, MILLVILLE

On appeal from a Final Administration Action of the Civil Service Commission, CSC Docket No. 2008-3389.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 27, 2010

Before Judges Skillman and Simonelli.

Appellant Bruce Cornish appeals from the March 13, 2009 final decision of respondent Civil Service Commission denying an award of back pay for the period of his suspension from his employment as a police officer with the City of Millville Police Department. We affirm.

Appellant has been employed by the City as a police officer since 1992. On July 26, 2005, his now ex-wife obtained a domestic violence temporary restraining order against him. On August 4, 2005, after a non-jury trial the court entered a final restraining order (FRO) against appellant. As a result, appellant was prohibited from carrying a firearm pursuant to N.J.S.A. 2C:25-17 to -35 and Attorney General directives Nos. 2000-3 and -4.

Appellant had four disciplinary actions pending against him at the time the FRO was entered. He faced charges of failing to properly notify a superior officer of a Superior Court complaint; making inappropriate phone calls to a third party while on duty using a department phone; attempting to undermine the credibility of a supervisor; unsafe and insubordinate conduct toward a firing range supervisor; leaving the firing line without clearance from a supervisor; and failing to obey the commands of a supervisor.

Based on the FRO, which prohibited appellant from possessing a firearm and thus prevented him from performing his duties as a police officer, the City instituted a fifth disciplinary action on August 24, 2005, charging him pursuant to N.J.A.C. 4A:2-2.3(a)(3), (6) and (11) with inability to perform duties, conduct unbecoming a public employee, and other sufficient cause-unfit for duty. The City sought appellant's termination and suspended him without pay pending a departmental hearing, which it scheduled for September 15, 2005. Because appellant had appealed the FRO, he requested that the hearing be postponed pending resolution of the appeal.

The City's attorney agreed to resolve all pending disciplinary actions except those stemming from the FRO. In a December 8, 2005 letter to appellant's attorney, the City's attorney confirmed the parties' agreement to postpone the disciplinary hearing in that action pending appellant's appeal of the FRO, stating as follows:

It is my understanding that the domestic violence order is currently pending in the Appellate Court. I agree that it should not be the subject of a disciplinary action for termination until there is a final disposition, of course with the proviso that as long as [appellant] can not carry a weapon, he will be suspended without pay.

Appellant pled guilty to the pending disciplinary charges, and received various periods of suspension. As to the charges stemming from the FRO, in a December 9, 2005 letter to appellant's attorney, the City's attorney confirmed that

The remaining termination charge for which the employee is currently suspended without pay relates to a Superior Court Judge's finding of a violation of the domestic violence laws whereby a final order of restraint was entered prohibiting the employee from carrying a weapon. That finding is currently pending in the Appellate Court and will be dispositive as relates to the termination issue. Since the employee is suspended pending the Appellate Court decision without pay, the cumulative days of suspension will act retroactively and concurrent with the employee's suspension currently without pay.

On September 26, 2006, we reversed and vacated the FRO. In a September 27, 2006 letter to the City's attorney, appellant's attorney stated as follows:

As you may recall, last December we agreed to hold off addressing the termination disciplinary matter that was pending for [appellant] while the Appellate Division was considering his appeal of the [FRO]. The decision in that matter was issued yesterday and the FRO was dismissed and the case was reversed on the merits. . . . As such, it is our position that [appellant] should be returned to work immediately[.] (Emphasis added.)

For the first time, the attorney demanded back pay for the period of appellant's suspension.

Appellant did not immediately return to work because he was required to submit to a psychological evaluation. The psychologist who conducted the evaluation recommended appellant's return "to full duty work with the use of his firearm on the condition that he immediately participate in psychological counseling focused on management of interpersonal conflict." On November 15, 2006, appellant was permitted to return to work provided he "immediately participate in the recommended psychological counseling[,]" and surrender his firearm "at the end of his shift pending completion of the recommended psychological counseling and re-evaluation[.]"

Appellant returned to work on November 15, 2006, with full pay and benefits but without back pay for the period of suspension. The City later removed the firearm restriction based on a favorable updated psychological report.

On January 12, 2007, the City's attorney advised appellant's attorney that appellant was not entitled to back pay because the parties had agreed that our decision on the FRO was only dispositive of the termination issue. He also advised that the charges remained unresolved, and that because appellant's attorney had requested an opportunity to submit a letter explaining appellant's position on the back pay issue, he would forebear scheduling a departmental hearing. Appellant's attorney never submitted a letter. Instead, on March 12, 2007, he demanded that the City proceed with a departmental hearing. The City's attorney responded as follows:

The City's position is that [appellant] is not entitled to back pay as his suspension from duty was because of his inability to act as a Police Officer caused by a third party's domestic violence charges which resulted in a restraining order that provided that he could not carry a weapon. Since you wanted to have an opportunity to set forth [appellant's] position regarding that issue, we agreed to hold the disciplinary hearing in abeyance pending the City's receipt of your letter of position.

The hearing occurred on December 14, 2007. On January 21, 2008, the hearing officer found that there was an agreement between the parties in December 2005 to resolve the charges, the terms of which were that [appellant] accepted suspension without pay and with no promise of back pay for what turned out to be approximately 11 months in return for [the City's] agreement not to proceed to a final decision on this disciplinary action pending the outcome of [appellant's] appeal to overturn a domestic violence conviction that prevented him from carrying a firearm and performing any duties as a police officer.

The hearing officer found that the parties had agreed that the our decision "would be dispositive as to whether [appellant] would be reinstated to duty if he succeeded in overturning the [FRO], or whether his employment as a police officer would be terminated if the appeal failed."

The hearing officer also found that the City could have terminated appellant because the charges "were clearly true and sustainable at the time they were filed on August 24, 2005 and at all times during the entire period of suspension[,]" and that appellant never disputed those charges. He recommended "that a Final Notice of Disciplinary Action be served to document the period of non-disciplinary suspension by agreement without pay and no back pay, and to impose no disciplinary penalty other than for both the City and [appellant] to honor the fair settlement terms originally accepted and implemented in 2005 as . . . supported by the record[.]" The City adopted the hearing officer's recommendation and issued a final notice of disciplinary action.

Appellant appealed to the Commission. On March 13, 2009, the Commission issued a final administrative decision denying the appeal. Relying on N.J.S.A. 11A:2-13 and N.J.A.C. 4A:2-2.5(a)(1) and (d), the Commission noted that "an employee may be suspended immediately and prior to a hearing where it is determined that the employee is unfit for duty[,]" and may waive the requirement for a departmental hearing to be held within thirty days of issuance of the Preliminary Notice of Disciplinary Action. The Commission then found that the City had a valid basis to immediately suspend appellant in August 2005 pending the departmental hearing because the FRO, which prohibited him from carrying a weapon and performing his duties as a police officer, rendered him unfit for duty. The Commission concluded that [N.J.A.C.] 4A:2-1.5(b) provides that back pay, benefits, and counsel fees may be awarded in disciplinary appeals. [N.J.A.C.] 4A:2-2.10 provides that back pay shall be awarded where a disciplinary penalty has been reversed. Here, the Commission has found that the appointing authority possessed a valid basis to impose an immediate suspension, pending the outcome of the appellant's departmental hearing. Thus, he has not successfully shown that the immediate suspension was improperly imposed, and he, thus, is not entitled to an award of back pay for the period of that suspension.

The Commission also found that "there is no dispute that following the issuance of the [Preliminary Notice of Disciplinary Action] . . . appellant requested that his departmental hearing be adjourned until he had the opportunity to file an appeal with the Appellate Division regarding the propriety of the FRO." The Commission concluded that N.J.A.C. 4A:2-2.10(d)8 provides for a reduction of a back pay award "by any period of unreasonable delay in the appeal proceedings directly attributable to the employee[,]" and that

Although this regulation only expressly applies to proceedings before the Commission, it is appropriate to apply it here in order to avoid an inequitable result. It is settled that, but for the appellant's adjournment request, the [City] could have promptly proceeded to conduct a departmental hearing on the merits of the charges against the appellant. This would have resulted in a timely resolution of the matter, either by dismissing the disciplinary charges at that time or upholding the charges and imposing an appropriate penalty, up to and including removal from employment. However, rather than finalizing the disciplinary charges, the [City] indefinitely delayed the appellant's departmental proceedings at his request. Thus, the appellant's immediate suspension continued until November 2006, when he was ultimately reinstated by the [City]. In accordance with [N.J.A.C.] 4A:2-2.10(d)8, the appellant is not entitled to any award of back pay during the period of delay in his disciplinary proceedings which were directly attributable to him, i.e., August 24, 2005 to November 14, 2006. Regardless of whether or not any agreement existed between the parties which precluded an award of back pay, the appellant requested and received a delay in his departmental proceedings, and, by doing so, he effectively consented to his continued immediate suspension without pay. He cannot now seek compensation for the period of that suspension. (footnote omitted).

This appeal followed.

On appeal, appellant raises several contentions that we reject outright. Specifically, defendant contends that the Commission failed to apply N.J.S.A. 40A:14-149.1 to determine the award of back pay, as mandated by N.J.A.C. 4A:2-2.10(b); the plain language and legislative intent of N.J.S.A. 40A:14-149.2 requires an award of back pay if a suspended police officer is found not guilty of the charge against him; and the Commission erroneously relied on the alleged agreement to delay the hearing pending resolution of the FRO appeal to justify its failure to follow the proper rules mandated by the Civil Service Act, and N.J.S.A. 40A:14-149.

N.J.S.A. 40A:14-149.1 provides that a police officer charged with an "offense" may be suspended without pay "until the case against him is disposed of at trial, until the complaint is dismissed or until the prosecution is terminated." N.J.A.C. 4A:2-2.10(b) permits an award of back pay pursuant to N.J.S.A. 40A:14-149.1 only in cases involving police officers who were suspended "based on a pending criminal complaint or indictment."

Appellant was not charged with an "offense," which is defined in the New Jersey Code of Criminal Justice as meaning "a crime, a disorderly persons offense or a petty disorderly persons offense. N.J.S.A. 2C:1-14k. He also did not face any criminal charges arising from the domestic violence incident. Rather, he was named as a defendant in a civil proceeding brought by his ex-wife, as a result of which he was suspended because he could not carry a firearm and was thus unfit to perform the duties of a police officer. The charge of domestic violence, when initiated by the victim, "is treated as if it is not a crime." Cesare v. Cesare, 302 N.J. Super. 57, 67 n.6 (App. Div. 1997), rev'd on other grounds, 154 N.J. 394 (1998). Accordingly, N.J.S.A. 40A:14-149.1 and -149.2 and N.J.A.C. 4A:2-2.10(b) do not apply to this case.

Also, appellant never challenged his suspension without pay or the length of the suspension, nor did he dispute there was sufficient evidence to find him guilty of the charges had the departmental hearing occurred on the scheduled date in September 2005. Thus, we reject his apparent attempt to now challenge his suspension by contending that the plain language and legislative intent of N.J.S.A. 40A:14-149.1 forbids an unpaid suspension unless the charges are of statutorily prescribed gravity. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973); R. 2:5-4.

In addition, appellant contends that the Commission failed to consider the City's violation of the six-month limitation on suspensions pursuant to N.J.S.A. 11A:2-20 and N.J.A.C. 4A:2-2.4(a). Even considering the last contention, it lacks merit. N.J.S.A. 11A:2-20 and N.J.A.C. 4A:2-2.24 apply to a final disciplinary penalty of suspension greater than six months, not to a suspension pending a departmental hearing on the underlying disciplinary charges and penalty, such as appellant's suspension here. See N.J.S.A. 11A:2-13.

We find equally without merit defendant's contention that N.J.S.A. 11A:2-6(a) required the Commission to conduct a de novo hearing as to whether there was an agreement to delay the hearing pending resolution of the appeal of the FRO. The day after we reversed and vacated the FRO, appellant's attorney confirmed, in writing, that the parties had "agreed [in December 2005] to hold off addressing the termination disciplinary matter that was pending for [appellant] while the Appellate Division was considering his appeal of the [FRO]." Thus, a hearing was not was necessary because an agreement clearly existed to postpone the departmental hearing.

Remaining for our review is appellant's contention that the Commission erred in denying an award of back pay pursuant to N.J.A.C. 4A:2-2.10(d)8 because his appeal of the FRO did not constitute an "unnecessary delay."

Our role in reviewing the decision of an administrative agency is limited. Circus Liquors, Inc. v. Middletown Twp., 199 N.J. 1, 9 (2009); In re Taylor, 158 N.J. 644, 656 (1999). We will not disturb the determination of an administrative agency absent a showing that it was arbitrary, capricious, or unreasonable; that is, (1) "the agency's action violates expressed or implied legislative policies[;]" (2) "the record [does not] contain[] substantial evidence to support the findings on which the agency based its action[;]" and (3) "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." Circus Liquors, supra, 199 N.J. at 10 (quoting Mazza v. Bd. of Trs., 143 N.J. 22, 25 (1995)); see also In re Musick, 143 N.J. 206, 216 (1996).

Decisions of administrative agencies carry with them a presumption of reasonableness. Newark v. Natural Resource Council, 82 N.J. 530, 539, cert. denied, 449 U.S. 983, 101 S.Ct. 400, 66 L.Ed. 2d 245 (1980). We may not reverse an agency's determination "even if [we] may have reached a different result had [we] been the initial decision maker." Circus Liquors, supra, 199 N.J. at 10. Stated otherwise, we "may not simply 'substitute [our] own judgment for the agency's.'" Ibid. (quoting In re Carter, 191 N.J. 474, 483 (2007)).

Nonetheless, "although the determination of an administrative agency is entitled to deference, our appellate obligation requires more than a perfunctory review." Blackwell v. Dep't. of Corr., 348 N.J. Super. 117, 123 (App. Div. 2002). Accordingly, our function is not to merely rubberstamp an agency's decision; rather, our function is "to engage in 'a careful and principled consideration of the agency record and findings.'" [Williams v. Dept. of Corr., 330 N.J. Super. 197, 204 (App. Div. 2000)] (quoting Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85, 93 (1973)).

There is no question that appellant was unfit for duty as a result of the FRO. Thus, the Commission properly concluded that the City could immediately suspend him without pay prior to a departmental hearing. N.J.S.A. 11A:2-13; N.J.A.C. 4A:2-2.5(a)1.

There also is no question that back pay may be awarded in the Commission's discretion. N.J.S.A. 11A:2-22. The Commission may also reduce back pay "for any period of unreasonable delay of the appeal proceedings directly attributable to the employee." N.J.A.C. 4A:2-2.10(d)8. Although this regulation generally applies to proceedings before the Commission, it may be applied as well to other proceedings when equitable or special circumstances, such as delay in the departmental hearing caused by the employee, are present. Steinel v. City of Jersey City, 99 N.J. 1, 3 (1985); Belleville v. Coppla, 187 N.J. Super. 147, 158 (App. Div. 1982); Millan v. Morris View, 177 N.J. Super. 620, 624-25 (App. Div. 1981).

We discern no abuse of discretion in the Commission's decision to award appellant no back pay. We defer to the Commission's conclusion that appellant unreasonably delayed the departmental hearing, as it is not arbitrary, capricious or unreasonable, and is amply supported by the record.

Affirmed.

20100722

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