May 14, 2013
IN THE MATTER OF MARK SALAMANDRA.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued January 15, 2013
On appeal from the Civil Service Commission, Docket No. 2012-324.
Wesley Bridges argued the cause for appellant Mark Salamandra (Becker Meisel, LLC, attorneys; Mr. Bridges, of counsel and on the briefs).
Marvin L. Freeman, Deputy Attorney General, argued the cause for respondent New Jersey State Parole Board (Jeffrey S. Chiesa, Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Mr. Freeman, on the brief).
Before Judges Alvarez and St. John.
Mark Salamandra appeals the January 11, 2012 Civil Service Commission (Commission) decision which upheld his removal from his employment with the New Jersey State Parole Board (Board). 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.
Salamandra was involved in an automobile accident in Bucks County, Pennsylvania on September 4, 2010. He left the scene of the accident and returned home shortly thereafter. Officers from the Lower Makefield Police Department went to his residence and took him into custody. Salamandra was found to have a blood alcohol level of .245. The legal blood alcohol limit for Pennsylvania drivers is .08. 75 Pa. C.S.A. § 2802.
At the time of the accident, Salamandra was employed as an assistant district parole supervisor. On October 7, 2010, the Board's Office of Human Resources issued a decision of informal pre-termination hearing suspending him without pay effective October 5, 2010.
On March 16, 2011, Salamandra pleaded guilty to driving under the influence: incapable of driving safely, 75 Pa. C.S.A. § 2802; driving under the influence: highest rate of alcohol, 75 Pa. C.S.A. § 2802; failure to stop and give information and render aid, 75 Pa. C.S.A. § 3112; failure to notify police department of accident, 75 Pa. C.S.A. § 3746; and failure to stop at a red light, 75 Pa. C.S.A. § 3744. Thereafter, the Board served him with a final notice of disciplinary action which sustained charges for conduct unbecoming a public employee, N.J.A.C. 4A:2-2.3(a)(6), and other sufficient cause, inability to discharge one's duty, N.J.A.C. 4A:2-2.3(a)(11). Salamandra appealed and was granted a department level disciplinary hearing. The hearing officer found in his favor with respect to the charge of inability to discharge one's duty, dismissing that charge, but found that he engaged in unbecoming conduct, sustaining the recommendation of removal. On July 15, 2011, Salamandra was provided a final notice of disciplinary action making his removal from employment effective October 5, 2010.
Salamandra's appeal of that decision was transferred to the Office of Administrative Law pursuant to N.J.S.A. 52:14B-1 to -15 and N.J.S.A. 52:14F-1 to -13 where it was filed for determination as a contested case. On November 4, 2011, the administrative law judge (ALJ) rendered an initial decision ordering his removal from his position with the Board. Salamandra filed exceptions, contesting the penalty of removal. Cross-exceptions were filed by the appointing authority.
The Commission accepted and adopted the findings of fact and conclusions of law in the ALJ's initial decision, and upheld Salamandra's removal. 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 the appellant 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).
This same deferential standard applies to our review of the agency's choice of a disciplinary sanction. Stallworth, supra, 208 N.J. at 195. We review discipline only to determine whether the "'punishment is so disproportionate to the offense, in the light of all of the circumstances, as to be shocking to one's sense of fairness.'" Ibid. (quoting In re Carter, 191 N.J. 474, 484 (2007)).
With those principles in mind, we turn to Salamandra's contentions on appeal. He argues that the Commission's decision to remove him should be reversed, first because it was based on inadmissible hearsay evidence and, second, because his guilty plea was entered to one offense of failure to stop and give information and render aid, 75 Pa. C.S.A. § 3112, and not from the more serious charge of leaving the scene of an accident.
We find appellant's contentions to be without sufficient merit to warrant much discussion. R. 2:11-3(e)(1)(E). We add the following brief comments.
The Commission stated:
The Commission agrees with the ALJ's determination that the appellant's DUI conviction for being three times over the legal limit is troubling on its own, but was compounded when the appellant left the scene of an accident without offering aid or contacting the police. These actions are unacceptable from any police officer, but more so from a supervising parole officer. It is also troubling that the appellant in performing his normal duties would be charged with supervising parolees who have committed the same DUI offenses. Clearly, the public trust would be impacted should an individual in the appellant's position be permitted to continue his employment after committing such serious offenses. Accordingly, given the egregious nature of the appellant's conduct, it is clear that removal is the appropriate penalty.
The evidence upon which a final administrative agency decision is reached may include hearsay evidence, provided the agency's findings are not entirely based upon hearsay evidence. Weston v. State, 60 N.J. 36, 51 (1972). Those findings must be supported by a residuum of legally competent evidence. Ibid.; In re Toth, 175 N.J.Super. 254, 262 (App. Div. 1980); N.J.A.C. 1:1-15.5.
We are satisfied the findings here, as the Commission detailed, were not based solely upon hearsay evidence. At the hearing before the ALJ, Salamandra testified that what he had done was "horrible, terrible." The fact that appellant did not stop, but left the scene of the accident, was never in dispute. Salamandra pleaded guilty to failure to stop and give information and render aid, 75 Pa. C.S.A. § 3112. Moreover, on cross-examination, Salamandra admitted that when an officer came to his house regarding the accident he thought, "if somebody was hurt we have to go back up there. And if that's the case, we got to go back." Additionally, the ALJ admitted into evidence records of the Bucks County Court of Common Pleas and the police report. Thus, we are satisfied that there was ample evidence by which the Commission could determine that appellant engaged in conduct unbecoming a public employee, N.J.A.C. 4A:2-2.3(a)(6).
The Commission's decision to uphold Salamandra's removal from the State Parole Board was amply supported by credible evidence and was not arbitrary, capricious or unreasonable. The sanction of removal from office is not so disproportionate to the offense as to be shocking to our sense of fairness.