On appeal from the Civil Service Commission.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher, Sapp-Peterson and Simonelli.
This appeal involves the removal of appellant F.B.F. from his position as a senior corrections officer with respondent New Jersey Department of Corrections (DOC). We reverse.
On May 2, 1999, F.B.F. was arrested as a result of an incident involving his girlfriend. He was subsequently indicted for theft by unlawful taking, N.J.S.A. 2C:20-3, and possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a. On November 5, 1999, the DOC filed a Preliminary Notice of Disciplinary Action against F.B.F. seeking his removal for conduct unbecoming a public employee, N.J.A.C. 4A:2-2.3(a)6, and actions involving criminal matters, N.J.A.C. 4A:2-2.7. The notice specified the charges were based on the indictment and N.J.S.A. 2C:51-2 (the forfeiture of public office) may apply.
On September 18, 2000, F.B.F. pled guilty to an amended charge of simple assault, N.J.S.A. 2C:12-1a(3), a disorderly persons offense. His allocution did not indicate the victim was his girlfriend.
On November 1, 2000, the DOC filed an amended Preliminary Notice of Disciplinary Action seeking F.B.F.'s removal for conduct unbecoming a public employee. The notice specified that the charges were based on F.B.F.'s guilty plea.
On May 11, 2001, the DOC filed an amended Preliminary Notice of Disciplinary Action seeking F.B.F.'s removal for conduct unbecoming a public employee and because he was "prohibited by law from possessing or using a firearm, N.J.A.C. 4A:2-2.3(a)3, 6 and 11." The notice specified that F.B.F. pled guilty to N.J.S.A. 2C:12-1a(3) (simple assault) and he was "prohibited by federal law from possession a firearm on or off duty and, therefore, cannot work as a law enforcement officer."
On June 13, 2001, the DOC filed a Final Notice of Disciplinary Action, removing F.B.F. from his position. F.B.F. appealed and the matter was transferred to the Office of Administrative Law for a hearing. An Administrative Law Judge (ALJ) concluded "that as a result of [F.B.F.'s] conviction for simple assault, [he was] prohibited from carrying a firearm under [the federal law known as] the Lautenberg Amendment[, 18 U.S.C.A. § 922(g)(9),] and therefore [was] no longer qualified to perform the duties of a senior corrections officer."
The Merit System Board (MSB), now known as the Civil Service Commission (Commission),*fn1 upheld the removal solely on the ground that F.B.F. was, as a result of his simple assault conviction, prohibited by the Lautenberg Amendment from carrying a firearm and therefore could no longer perform the duties of a senior corrections officer. F.B.F. appealed.
We reversed concluding that F.B.F. was "not prohibited by the Lautenberg Amendment from carrying a firearm as a result of his conviction under N.J.S.A. 2C:12-1a(3) and that the Merit System Board's final decision must be reversed because it was based solely on the Lautenberg Amendment. Nevertheless, because we recognized that F.B.F. could still be subject to disciplinary action based on his conviction and conduct, we remanded for further disciplinary proceedings. The conduct unbecoming charge was the only charge pending at the time of our decision.
The matter was assigned to a different ALJ for a hearing on December 19, 2007. On the date of the hearing, by way of motion for summary decision, the DOC sought to amend the charge to a violation of N.J.S.A. 2C:39-7b(2), which prohibits a person convicted of a disorderly persons offense involving domestic ...