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In the Matter of

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 altercation at the scene. Walden was taken to St. Joseph's Hospital for treatment of these non-life-threatening wounds.

Postorino testified that a motor vehicle abstract demonstrated Walden's driver's license was restored on June 12, 2007. However, other abstracts secured in December 2007 and April 2008 revealed that Walden's license was still suspended. Postorino testified that possession of a valid driver's license was a prerequisite for the position of firefighter. The Chief acknowledged that Paterson's fire department, which did not have "an employee assistance program for drug[s] and alcohol," followed Paterson's city-wide policy.

Walden testified that after being "cited for a second DWI," he "went to rehab in Florida at Genesis House" for a period of "[t]hirty to thirty-three days." He continued in outpatient treatment in New Jersey thereafter, and "[a]ll five of [his] urine samples were clean of drugs and alcohol." Walden offered numerous letters of support from members of the community.

Walden also claimed to have attended two sessions with "an advisor" after his first DWI arrest, and that he presented the fire department with documentation of these sessions. However, no such documents were introduced at the hearing.

The ALJ's initial decision of September 9, 2009, contained the following factual findings: on June 11, 2007, Walden drove while intoxicated and while his license was suspended; "[h]e failed to obey the order to keep the Department regularly apprised of the status of his court hearing and failed to provide documentation of counseling"; while still on probation and less than one year later, Walden drove while intoxicated on May 16, 2008; "Walden failed to seek counseling or improve his conduct with respect to the operation of a motor vehicle until after he was arrested for the second time"; Walden "drove without liability insurance"; "[h]e repeatedly drove while suspended"; and he "repeatedly failed to respect local parking ordinances," failed "to appear and pay his parking tickets[,]" and "repeatedly disobeyed other motor vehicle and traffic laws."

Based upon these findings of fact, the ALJ concluded that Walden was "guilty of conduct unbecoming a public employee and [wa]s therefore subject to major discipline pursuant to N.J.A.C. 4A:2-2.3(a)(6)." She also concluded that he had violated two of the department's rules and regulations. Lastly, the ALJ determined that "there was no lack of progressive discipline . . . ; Walden was placed on probation after the first offense and violated it within a year." She upheld Walden's removal.

Walden filed exceptions with the Commission contending that the "penalty of termination [wa]s . . . arbitrary and capricious." He specifically claimed that the ALJ refused to admit evidence that another member of the fire department, Captain Thomas Alala, who had multiple DWI convictions, was not terminated; that "the absence of a [drug and alcohol] policy invite[d] arbitrary and capricious conduct" by Paterson; that the city had acted in "bad faith"; that the ALJ was "compelled to determine whether petitioner was handicapped pursuant to this State's Law Against Discrimination, and, if so, whether the City had a duty to accommodate his disability"; and that the ALJ erroneously relied upon evidence regarding his driving record to demonstrate he was unable to perform the functions of his job.

Additionally, Walden argued that the ALJ's factual findings regarding his repeated failure to obey traffic laws, the suspension of his license and conviction of various motor vehicle offenses, and his failure to provide the department with evidence of his attendance at counseling after the 2007 DWI were all unsupported by the evidence.

The Commission addressed each of these exceptions seriatim. Citing to the record of Alala's administrative appeal, the Commission concluded that Walden "[wa]s mistaken in his characterization of Alala's employment history." Specifically, the Commission noted that Paterson was unaware Alala had been convicted of DWI on more than one occasion, and, when it became aware, removed him from his position. Since Walden cited no other example of disparate treatment, the Commission concluded his claim that "the lack of a formal policy demonstrate[d] . . . he was treated in an arbitrary and capricious manner [was] not persuasive," and Walden otherwise produced no evidence that Paterson's action was motivated by bad faith.

The Commission also concluded that Paterson "afforded [Walden] an opportunity at rehabilitation following his June 2007 arrest, but he repeated his misconduct within one year." As a result, Walden "was entitled to no further accommodations."

Regarding Walden's argument that having a valid driver's license was not a prerequisite for the job, the Commission noted that the ALJ disregarded this evidence because she dismissed "the charge of inability to perform duties." And, as to the ALJ's reference to Walden's repeated violations of the motor vehicle laws, the Commission concluded that "there [wa]s no dispute that [Walden] had two DWI offenses on his record."

Considering the appropriate penalty "de novo," the Commission determined that "where the underlying conduct is of an egregious nature, the imposition of a penalty up to and including removal is appropriate regardless of an individual's disciplinary history," citing Henry, supra. Finding Walden's conduct to be "particularly egregious in light of the fact that [he] is a Fire Fighter who holds an extremely visible position of trust," the Commission upheld the penalty of removal. This appeal followed.

Before us, Walden reiterates the arguments made before the Commission. He claims relevant evidence regarding penalties imposed upon other similarly-situated firefighters was barred, that the Commission failed to consider his disability, that a valid driver's license was not a job prerequisite, and that the factual findings regarding repeated violations of the motor vehicle statutes were not supported by the evidence. The arguments are of insufficient merit to warrant extensive discussion in this opinion. R. 2:11-3(e)(1)(E). We add only the following brief comments.

Although Walden claims he was not permitted to cross-examine Postorino regarding his claim of disparate treatment, our review of the record reveals that the ALJ only limited the testimony to Postorino's term as chief, some six and one-half years. This evidential ruling hardly served to prejudice Walden, particularly since Postorino testified that Alala's case was the only other instance where a firefighter was terminated because of multiple DWI convictions. The newspaper articles in Walden's appellate appendix do not contradict Postorino's testimony regarding Alala.

Citing our decision in In the Matter of Cahill, 245 N.J. Super. 397 (App. Div. 1991), Walden claims that the Commission "failed to consider, or apply, the statutory prerequisite of 'reasonable accommodation' in both State and federal law for persons with disabilities." We acknowledge Cahill's recognition that "where feasible an employer should afford an opportunity for rehabilitation to an employee handicapped by substance abuse." Id. at 401. However, in this case, Walden produced no evidence that he suffered from a disability, and, more importantly, Paterson accorded him an opportunity "for rehabilitation" by placing him on probation and ordering him to attend counseling. Despite these efforts, less than one year later, Walden again drove while intoxicated.

Lastly, Walden's arguments that the ALJ erroneously concluded having a valid driver's license was a prerequisite for the position of firefighter, and that she erroneously relied upon his driver's abstract to conclude he had repeatedly violated the motor vehicle laws, are of no moment. Neither the ALJ nor the Commission concluded that Walden violated N.J.A.C. 4A:2-2.3(a)(3) (inability to perform duties).

Moreover, regardless of whether Walden committed any other violations of the motor vehicle laws, as the Commission noted, it was undisputed that he was guilty of multiple violations of N.J.S.A. 39:4-50. "[A] finding of misconduct . . . 'may be based merely upon the violation of the implicit standard of good behavior which devolves upon one who stands in the public eye as an upholder of that which is morally and legally correct.'" Karins v. City of Atl. City, 152 N.J. 532, 555 (1998) (quoting Hartmann v. Police Dep't of Ridgewood, 258 N.J. Super. 32, 40 (App. Div. 1992)). "Not only must firefighters fight fires, but they must also display a certain level of discipline and an ability to work well within the community." Id. at 557. Removing Walden from his position as a firefighter after two convictions for DWI within one year of each other, and within a short time after joining the fire department, does not "shock[] the court's sense of fairness." Herrmann, supra, 192 N.J. at 29 (quotations omitted).

Affirmed.

20110714

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