On appeal from the New Jersey Civil Service Commission, CSC Docket No. 2008-4445.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher and Grall.
In this appeal, we consider the Civil Service Commission's refusal to reconsider the removal of appellant Seay Fletcher from the list of eligible fire fighter candidates based on a criminal history that included a matter for which appellant was admitted to pretrial intervention (PTI). We conclude that the Commission was entitled to look beneath the surface and consider the nature of the conduct that led to the diversion of the criminal matter into the PTI program and, therefore, find the exclusion of appellant from the eligible list was not arbitrary, capricious or unreasonable.
The record reveals that this issue was originally considered by the Merit System Board on April 24, 2008, when the City of Newark appealed a decision of the Human Resource Information Services, which found Newark did not have a sufficient basis to remove appellant's name from the fire fighter eligible list. The Board considered the undisputed fact that appellant "was arrested on December 20, 2000 for the possession of drugs with intent to distribute in a school zone" and that he was "again arrested on July 25, 2006 by the New Jersey State Police on charges of racketeering in connection with a street gang," "spen[ding] several months in prison for this offense before being released on $250,000 bail." In addition, appellant was dismissed from his position as a claims examiner for Newark effective July 14, 2006. In response, appellant argued that the drug charges were dismissed as a result of his admission into the PTI program, that the 2006 criminal charges were administratively dismissed prior to presentment to the grand jury, and that the termination of his employment with Newark was the consequence of a mayoral transition during which many employees were let go.
The Board recognized that the matter largely turned on the 2000 criminal matter and whether admission into a PTI program precludes consideration of that matter when determining whether an otherwise eligible candidate may be removed from an eligible list. Observing that participation in a PTI program should not be "construed to constitute a favorable termination" -- although such a disposition is neither a conviction nor an acquittal, N.J.S.A. 2C:43-13d -- the Board viewed both the nature of the 2000 charges and the fact that appellant was again arrested in 2006, as serious matters entitled to consideration and, ultimately, removal from the eligible list. The Board also relied on Karins v. City of Atlantic City, 152 N.J. 532, 552 (1998), where the Court emphasized the important relationship between fire fighters and police officers that would be jeopardized by the appointment of a fire fighter with such a history:
Firefighters are not only entrusted with the duty to fight fires; they must also be able to work with the general public and other municipal employees, especially police officers, because the police department responds to every emergency fire call. Any conduct jeopardizing an excellent working relationship places at risk the citizens of the municipality as well as the men and women of those departments who place theirlives on the line on a daily basis. An almost symbiotic relationship exists between the fire and police departments at a fire.
Appellant did not file an appeal from this final agency decision. Instead, appellant later sought reconsideration. In that later application, he again asserted the 2000 matter was diverted by way of his admission into PTI and the 2006 matter was administratively dismissed, and argued that consideration of those circumstances rendered unreasonable his removal from the eligible list. The Civil Service Commission, which had, by this time, replaced the Merit System Board as the entity that reviews such matters, N.J.S.A. 11A:11-1, determined that appellant had presented nothing new and that reconsideration was not warranted. In addition, the Commission explained again why it viewed appellant's experiences with the criminal justice system as significant.
To the extent this appeal requires our determination as to whether the Commission's decision not to reconsider the Board's earlier decision was erroneous, we find the appeal to be without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Indeed, appellant has not even argued the decision to deny reconsideration was inappropriate; instead, appellant proceeds on the apparent assumption that it is irrelevant that the Board previously considered and disposed ofthe same issues on their merits and that no timely appeal was taken from that final agency decision. Viewing this appeal as limited by that circumstance, we conclude that the Commission did not act arbitrarily, capriciously or unreasonably in refusing to reconsider the same facts and identical arguments previously presented to and decided by the Board.
Moreover, we find no merit in the argument that these agencies were required to disregard the 2000 criminal matter by N.J.S.A. 11A:4-11, because appellant was not convicted. Arrests and not just convictions are relevant in determining a person's eligibility to become a fire fighter. See Tharpe v. City of Newark Police Dep't, 261 N.J. Super. 401, 406 (App. Div. 1992).*fn1
It was entirely appropriate for the Commission to consider that appellant had been arrested for drug distribution in Newark in 2000, regardless of the fact that he was admitted into PTI, a circumstance that cannot be equated with a favorable termination.