January 10, 2013
IN THE MATTERS OF DANIEL MARCANO AND CHRISTOPHER A. FRUCCI, CITY OF CAMDEN.
On appeal from the New Jersey Civil Service Commission, Docket Nos. 2010-1624 and 2010-1625.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 14, 2012
Before Judges Waugh and St. John.
Appellant, City of Camden, appeals from the May 26, 2010 final decision by the Civil Service Commission (Commission), dismissing disciplinary charges imposed by Camden against respondents Christopher Frucci and Daniel Marcano, and awarding them back pay and counsel fees. Marcano filed a cross-appeal of the order contesting a reduction in his back pay award. Following our review of the arguments advanced on appeal, in light of the record and applicable law, we affirm.
The record discloses the following facts and procedural history leading to the administrative determination under review.
Frucci and Marcano are officers with the Camden police department. In late 2006, both were assigned to the telephone reporting unit (TRU) located in the communications area of the county jail. Officers assigned to TRU are responsible for taking calls from the public involving complaints that do not require the dispatch of a patrol car. Assignment to TRU is temporary and considered light duty. Officers working the TRU do not have to remain in the communications area at all times. They are allowed to go to the police department gym, eating area, and leave to get food as long as they are available to respond to issues as they may arise.
In March 2007, Marcano and Frucci were issued preliminary notices of disciplinary action, charging them with several violations of the Camden Police Disciplinary Code during the time they were assigned to TRU. After departmental hearings, the charges against them were sustained and their terminations were recommended. Marcano and Frucci both appealed to the Commission. Their appeals were transferred to the Office of Administrative Law, where the appeals were consolidated.
Frucci and Marcano disputed the charges against them and additionally alleged they were given permission to leave on several occasions by dispatch sergeants who worked in the communications area but who were not their supervisors. Thirteen days of hearings were conducted before an Administrative Law Judge (ALJ). At these hearings, several witnesses testified, including Detective Ruiz, Officer Rodriguez, and Officer Carr.
Detective Ruiz, an investigator in the Internal Affairs Division, testified that he viewed over 140 hours of video surveillance and played DVDs in court to illustrate his conclusions that Frucci and Marcano had on specified dates left their shifts early. Ruiz also had the dispatch sergeants fill out a questionnaire in which all answered that they had not given Marcano or Frucci permission to leave early. However, they did not observe either leaving prior to the end of his scheduled shift.
Officer Rodriguez, who was also assigned to TRU, testified that during TRU duty he never had to clock in or clock out. He further stated that he would leave before the end of his shift and that some dispatch sergeants would tell him to leave a couple of hours early. Officer Carr, who also worked in the TRU, similarly testified that dispatch sergeants would tell him to leave early.
The day after Officer Carr testified, he was approached by Sergeant Ortiz, Camden's Internal Affairs representative, and was told to report to Internal Affairs. Carr reported to Internal Affairs the following day and unbeknownst to Ortiz, Carr recorded their conversation, which was later transcribed and admitted into evidence. During the conversation, which occurred on or around July 31 2008, Ortiz made several statements that suggested that Camden knew that dispatch sergeants were giving TRU officers permission to leave early. At a preliminary hearing on August 7, 2008, Frucci's counsel disclosed that Ortiz was a private client of the law firm that was representing Frucci.
The ALJ issued an initial decision on December 5, 2008, recommending that Marcano and Frucci's removal from the Camden police department be reversed. The ALJ concluded that Camden had not carried its evidentiary burden. He stated that "[n]o preponderating evidence exist[ed] to show that [Marcano and Frucci] arrived late, left their shifts before completion, or failed to appear at all for work except in accord with the policy of extreme latitude de facto afforded TRU officers temporarily placed." Camden filed exceptions to the ALJ's initial decision with the Commission.
At its January 14, 2009 meeting, the Commission issued a decision remanding the matter to the ALJ for "a new initial decision outlining his factual findings and the evidence presented as to each date and time period for which [Marcano and Frucci were] charged." The ALJ issued his supplemental initial decision on June 16, 2009, articulating his findings and once more deciding that Camden failed to carry its burden of proof. Camden again filed exceptions with the Commission.
Thereafter, the Commission issued its decision on August 19, 2009, which adopted the ALJ's findings of fact and conclusions. That decision was not to become final until outstanding issues concerning back pay and counsel fees was finally resolved. Those issues were resolved by order of the Commission issued on May 26, 2010.
The Commission dismissed the charges against Marcano and Frucci, reversed their removals, and ordered that they be granted back pay, benefits, and seniority for the period of their separation from employment. The amount of back pay was to be reduced and mitigated in accordance with N.J.A.C. 4A:2-2.10. Additionally, reasonable counsel fees were granted pursuant to N.J.A.C. 4A:2-2.12.
The Commission determined that Marcano was entitled to $97,069.98 in back pay and for reimbursement of health insurance premiums. However, the Commission concluded that Marcano had not mitigated his back pay for the time period between May 8, 2007, and December 31, 2007, and deducted $45,680.42 from his back pay award.
This appeal ensued.
Established precedents guide our task on appeal. Appellate review of an administrative agency decision is limited. See In re Herrmann, 192 N.J. 19, 27 (2007). A strong presumption of reasonableness attaches to the Commission's decision. In re Carroll, 339 N.J. Super. 429, 437 (App. Div.), certif. denied, 170 N.J. 85 (2001). The burden is on Camden in its appeal and Marcano in his cross-appeal to demonstrate grounds for reversal. McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 563 (App. Div. 2002); see also Bowden v. Bayside State Prison, 268 N.J. Super. 301, 304 (App. Div. 1993) (holding that "[t]he burden of showing the agency's action was arbitrary, unreasonable, or capricious rests upon the appellant"), certif. denied, 135 N.J. 469 (1994).
"Appellate courts ordinarily accord deference to final agency actions, reversing those actions if they are 'arbitrary, capricious or unreasonable or [if the action] is not supported by substantial credible evidence in the record as a whole.'"
N.J. Soc'y for the Prev. of Cruelty to Animals v. N.J. Dep't of Agric., 196 N.J. 366, 384-85 (2008) (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980)) (alteration in original). Under the arbitrary, capricious, and unreasonable standard, our scope of review is guided by three major inquiries: (l) whether the agency's decision conforms with relevant law; (2) whether the decision is supported by substantial credible evidence in the record; and (3) whether in applying the law to the facts, the administrative agency clearly erred in reaching its conclusion. In re Stallworth, 208 N.J. 182, 194 (2011). When an agency decision satisfies such criteria, we accord substantial deference to the agency's fact-finding and legal conclusions, while acknowledging the agency's "'expertise and superior knowledge of a particular field.'"
Circus Liquors, Inc. v. Governing Body of Middletown Twp., 199 N.J. 1, 10 (2009) (quoting Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992)). We will not substitute our own judgment for the agency's even though we might have reached a different conclusion. Stallworth, supra, 208 N.J. at 194; see also In re Taylor, 158 N.J. 644, 656 (1999) (discussing the narrow appellate standard of review for administrative matters).
We note that an ALJ's factual findings and legal conclusions are not "binding upon [an] agency head, unless otherwise provided by statute." N.J.A.C. 1:1-18.1(c). Accordingly, an agency head reviews an ALJ's decision "de novo . . . based on the record" before the ALJ. See In re Parlow, 192 N.J. Super. 247, 248 (App. Div. 1983). However, "[a]n agency head reviewing an ALJ's credibility findings relating to a lay witness may not reject or modify these findings unless the agency head explains why the ALJ's findings are arbitrary or not supported by the record." S.D. v. Div. of Med. Assistance & Health Servs., 349 N.J. Super. 480, 485 (App. Div. 2002); see also N.J.S.A. 52:14B-10(c) (An agency head may only reject the ALJ's credibility findings after it determines "from a review of the record that the findings are arbitrary, capricious or unreasonable or are not supported by sufficient, competent, and credible evidence in the record." In doing so, "the agency head shall state with particularity the reasons for rejecting the findings and shall make new or modified findings supported by sufficient, competent, and credible evidence in the record.").
With those principles in mind, we turn to the contentions of Camden and Marcano.
Camden argues that the Commission's decision to adopt the determinations of the ALJ is against the weight of the evidence. We disagree.
The Commission carefully reviewed the evidence as demonstrated by its requirement that the ALJ issue "a new initial decision outlining his factual findings and the evidence presented as to each date and time period for which [Marcano and Frucci were] charged." The final determination by the Commission, that Camden did not present sufficient proof that Frucci and Marcano should be removed for the disciplinary charges against them, was explained by the Commission: although the appointing authority presented photographs of the [officers] showing their entrance and exit from the TRU and their whereabouts in other parts of the buildings or outside the building, the reasons for their movements were not apparent since there was no eyewitness testimony which gave first-hand knowledge of the reasons. There was also no document which was credibly identified as a sign-in or sign-out sheet representing the exact times of the [officers'] arrivals and departures. As to whether the [officers] requested and were granted leave for the absences from the TRU, the ALJ indicated that Marcano credibly testified on those occasions where a slip was required to be submitted to his supervisor, Marcano did so. Further, the ALJ emphasized that communication shift sergeants credibly testified that the TRU was not part of their supervisory responsibility. Moreover, the ALJ determined that no evidence was presented that showed that the [officers] reported their times inconsistent with the existing practices of the TRU.
The Commission's decision to order dismissal of the charges against Marcano and Frucci was supported by sufficient credible evidence and therefore not arbitrary, capricious, or unreasonable. This court will not disturb the Commission's determination. See N.J. Soc'y for the Prev. of Cruelty to Animals, supra, 196 N.J. at 384-85.
Camden also asserts that the ALJ's decision was improperly influenced by an undisclosed conflict of interest. Although not requested by Camden, we assume it contends that the Commission's decision must be reversed. We find Camden's contention to be without sufficient merit to warrant discussion in the opinion.
R. 2:11-3(e)(1)(2). We only note that the Commission made an independent evaluation of the record.
In his cross-appeal, Marcano argues that the Commission erred in deducting $45,680.42 from his back pay as unmitigated damages. N.J.A.C. 4A:2-2.10(d)4 provides where "the employee has failed to make reasonable efforts to find suitable employment during the period of separation, the employee shall not be eligible for back pay for any period during which the employee failed to make such reasonable efforts." The burden of proof is on the employer to establish that the employee failed to make reasonable efforts to find alternative employment. See N.J.A.C. 4A:2-2.10(d)4(v).
With regard to mitigation, the Commission noted that Marcano's attorney advised them that Marcano did not work in 2007 after his removal. There is also no evidence to show that Marcano made any effort to obtain substitute employment in 2007. The Commission found that "Marcano clearly did not mitigate his back pay from May 8, 2007 to December 31, 2007."
Based on our analysis of the record within the perspective of our limited standard of review, we are not persuaded that either Camden or Marcano has carried the burden of demonstrating grounds for reversal. We conclude the Commission's Final Decision was not arbitrary, unreasonable, or capricious, and see no reason to disturb the Commission's decision dismissing disciplinary charges imposed by Camden against Frucci and Marcano, awarding them back pay and counsel fees, and reducing Marcano's back pay award.
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