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In the Matter of

July 14, 2011

IN THE MATTER OF AIVERY WALDEN, CITY OF PATERSON.


On appeal from the Civil Service Commission, Docket No. 2009-2923.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 5, 2011

Before Judges Graves and Messano.

Aivery Walden appeals from the final order of the Civil Service Commission (the Commission) accepting and adopting the findings and conclusions of the administrative law judge (ALJ) that upheld the City of Paterson's (Paterson) removal of Walden from his position as a firefighter. We affirm.

Our "review of a final agency [action] is [quite] limited."

In re Carter, 191 N.J. 474, 482 (2007). "[I]f in reviewing an agency decision an appellate court finds sufficient credible evidence in the record to support the agency's conclusions, that court must uphold those findings even if the court believes that it would have reached a different result." In re Taylor, 158 N.J. 644, 657 (1999). We "'will reverse the decision of the administrative agency only if it is arbitrary, capricious or unreasonable or it is not supported by substantial credible evidence in the record as a whole.'" Ibid. (quoting Henry v. Rahway State Prison, 81 N.J. 571, 581 (1980)). Moreover, "courts should take care not to substitute their own views of whether a particular penalty is correct for those of the body charged with making that decision." Carter, supra, 191 N.J. at 486. "[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.'" In re Herrmann, 192 N.J. 19, 28-29 (2007) (additional internal quotations omitted) (quoting In re Polk, 90 N.J. 550, 578 (1982)).

Walden commenced employment as a firefighter in May 2006. On June 21, 2007, Paterson served Walden with a preliminary notice of disciplinary action (PNDA) containing two charges.

The first alleged violations of N.J.A.C. 4A:2-2.3(a)(3) (inability to perform duties); (6) (conduct unbecoming a public employee); and (11) (other sufficient cause), as well as violation of departmental rules and regulations. Specifically, Paterson claimed that Walden "was driving a motor vehicle after his license had been suspended or revoked," and that this conduct warranted penalties "[u]p to termination." The second charge alleged violations of N.J.A.C. 4A:2-2.3(a)(6) and (11), as well as a violation of departmental rules. The specific conduct supporting this charge was that Walden "operat[ed] a motor vehicle while under the influence of liquor or drugs." Penalties "[u]p to termination" were again recommended.

That same day, Fire Chief Michael Postorino informed Walden that he was required to advise the department of "all court related matters" regarding his DWI arrest, "seek appropriate counseling immediately and provide corroborating documentation." The preliminary notice of disciplinary action was held in abeyance, and Walden was placed on probation.

On December 4, Deputy Chief Edward McLaughlin advised Postorino that Walden had not supplied any information regarding his attendance at counseling. McLaughlin also noted that a motor vehicle check revealed Walden's driver's license had been suspended. Walden claimed this was a mistake caused by the municipal court's failure to advise the Motor Vehicle Commission that his DWI trial was postponed.

On June 2, 2008, Paterson served Walden with a second PNDA containing eight disciplinary charges for similar violations of N.J.A.C. 4A:2-2.3(a) and departmental rules and regulations arising out of another arrest for DWI and related motor vehicle violations occurring on May 16, 2008. Among the various specifications, the PNDA alleged that Walden was operating the vehicle while under the influence and while his license was suspended, that he "engaged in car[e]less driving likely to endanger person or property," that he drove "the wrong way on a one-way street," and that the vehicle he drove had no liability insurance or valid registration. Additionally, Paterson alleged that Walden's driving privileges had been suspended "prior to his first arrest of June 11, 2007," and that he had "failed to submit documentation indicating restoration of his driving privileges."

On October 22, 2008, Walden pled guilty in municipal court to the first DWI offense. On November 17, 2008, he pled guilty to the second DWI offense, and, among other things, his driver's license was suspended for two years. Walden subsequently appeared at a departmental hearing with counsel and waived his right to contest the charges contained in the first PNDA. On February 9, 2009, Paterson issued a final notice of disciplinary action removing Walden from his position effective January 26, 2009.

Walden appealed, and the matter was transferred to the Office of Administrative Law as a contested case. A hearing was held before the ALJ on July 27, 2009. Postorino testified and identified the various documents we have referenced, as well as the police report from the June 2007 DWI arrest. The report revealed that Walden was involved in a motor vehicle accident in Paterson at 1:47 a.m., struck three parked cars, and was stabbed in the neck and back in an apparent ...


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