IN THE MATTER OF JOHN BONAFIDE, SHERIFF'S OFFICER LIEUTENANT(PC3015C), UNION COUNTY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1658-04T11658-04T1

IN THE MATTER OF JOHN BONAFIDE,

SHERIFF'S OFFICER LIEUTENANT

(PC3015C), UNION COUNTY,

__________________________________

 

Submitted January 9, 2006 - Decided February 7, 2006

Before Judge Parrillo and Holston, Jr.

On appeal from a Final Administrative Decision of the Merit System Board, Department of Personnel, DOP

Docket No. 2004-3642.

Mets & Schiro, attorneys for appellant, John

Bonafide (Roosevelt Porter, of counsel and on the brief).

Garrubbo, Capece, D'Arcangelo, Millman & Smith, attorneys for respondent, County of Union (Frank G. Capece, of counsel; James J. Seaman, on the brief).

Peter C. Harvey, Attorney General of New Jersey

attorney for respondent, Merit System Board (Todd A. Wigder, Deputy Attorney General, on the statement in

lieu of brief).

PER CURIAM

Appellant, John Bonafide, a Union County Sheriff's Officer Sergeant, appeals from a final administrative determination of the Merit System Board (Board) removing his name from the eligible list for the position of Sheriff's Officer Lieutenant, based on his unsatisfactory adverse employment record. We affirm.

The facts are not in dispute. Bonafide was promoted to the position of Sheriff's Officer Sergeant in 1998. In January 2003, Bonafide entered into a settlement agreement resolving disciplinary action taken by the County based on his misuse of the Sheriff's facsimile machine and telephone. Bonafide agreed to a six-day suspension, a major discipline under N.J.A.C. 4A:2-2.2(a)3 because it was over five days in duration. A few months later, in April 2003, Bonafide's name was certified from a list of candidates eligible for promotion to lieutenant. However, in December 2003, the County requested that Bonafide's name be removed from the list on the ground that he had an unsatisfactory employment history.

Bonafide appealed his removal from the eligible list to the Board, requesting that the matter be referred for a hearing because of contested issues of fact. In this regard, Bonafide claimed that the County wanted him removed from the list because Undersheriff William Malcolm did not like him as a result of his union activity. However, Malcolm retired in June 2003, well before the County requested Bonafide's removal, and had no hiring authority in any event. In addition, Bonafide was promoted to sergeant in 1998, despite his earlier union activity in 1997. Moreover, other union officials were promoted to lieutenant.

The Board determined that there was no material issue of disputed fact requiring a hearing, and further stated that Bonafide's recent "unsatisfactory employment history indicates he would not be a suitable candidate for the title at issue at this time." The Board reasoned:

In this regard, it is recognized that a Sheriff's Officer is a law enforcement employee who must help promote adherence to the law. Sheriff's Officers, like municipal Police Officers, hold highly visible and sensitive positions within the community and the standard for an applicant includes good character and an image of utmost confidence and trust. See Moorestown v. Armstrong, 89 N.J. Super. 560 (App. Div. 1965), cert. denied, 47 N.J. 80 (1966). See also In re Phillips, 117 N.J. 567 (1990). The public expects Sheriff's Officers to present a background that exhibits respect for the law and rules. Moreover, in the instant matter, the position sought, Sheriff's Officer Lieutenant, is reserved for employees who exhibit leadership skills, a positive work ethic, and respect for the rules and regulations. The appellant's record of major discipline within three months of the certification is unacceptable for an individual seeking a position of leadership. As a result, the appellant has not met his burden of proof in this matter and the appointing authority has shown sufficient justification for removing his name from the Sheriff's Officer Lieutenant (PC3015C), Union County eligible list.

On appeal here, Bonafide raises essentially the same issues. We find them without merit. We affirm substantially for the reasons stated in the Board's decision of October 24, 2004. We add, however, only the following comments.

Our role in reviewing the decision of an administrative agency is limited. In re Taylor, 158 N.J. 644, 656 (1999); Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). "[W]e will not upset [the] determination . . . [of an administrative agency] absen[t] . . . a showing that it was arbitrary, capricious, or unreasonable, or that it lacked fair support in the evidence, or that it violated legislative policies." Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963); In re Musick, 143 N.J. 206, 216 (1996); Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). Further, decisions of administrative agencies carry with them a presumption of reasonableness. City of Newark v. Natural Res. Council, 82 N.J. 530, 539, cert. denied, 449 U.S. 983, 101 S. Ct. 400, 66 L. Ed. 2d 245 (1980). On this score, courts generally defer to an agency's interpretation of its own enabling legislation, as well as regulations promulgated to implement the statute that the agency is charged with administering. Medical Soc'y v. Dep't of Law and Pub. Safety, 120 N.J. 18, 25-26 (1990); Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85, 92-93 (1973); Appleby v. N.J. Civil Serv. Comm'n, 190 N.J. Super. 249, 255 (App. Div. 1983).

Our Legislature has vested the Department of Personnel (DOP) and its integral component, the Board, with broad supervisory power, particularly in the areas of selection and appointment-related functions. N.J.S.A. 11A:3-1; N.J.S.A. 11A:4-1 to -16; Gloucester County Welfare Bd. v. N.J. Civil Serv Comm'n, 93 N.J. 384 (1983). To implement that authority, N.J.A.C. 4A:4-4.7(a)(1) provides that an eligible's name "may be removed from an eligible list" for the reasons set forth in N.J.A.C. 4A:4-6.1. N.J.A.C. 4A:4-6.1(a)7 provides that a person may be denied appointment if he or she "[h]as a prior employment history which relates adversely to the title."

Here, we are satisfied that Bonafide's recent misconduct in misusing public property, for which he received major discipline only three months before promotions were being considered, adversely relates to the position to which he sought promotional appointment. A county Sheriff's Officer is a law enforcement officer and a "special kind of public employee" whose "primary duty is to enforce and uphold the law." In re Disciplinary Proceedings of Phillips, 117 N.J. 567, 576 (1990) (quoting Tp. of Moorestown v. Armstrong, 89 N.J. Super. 560, 566 (App. Div. 1965), certif. denied, 47 N.J. 80 (1966)). Implicit in the high standard of conduct imposed on Sheriff's Officers is their own regard for, and adherence to, the laws of this State and the rules of their institution. Like police officers, Sheriff's Officers hold sensitive positions of public trust * representing as they do law and order to the citizenry * and, therefore, must be of good character, honesty, personal integrity, and dependability to maintain the respect and confidence of the public they serve. It was neither unreasonable, arbitrary, nor capricious for both the appointing authority and the Board to conclude that Bonafide's recent employment history negatively impacted his ability to perform in the supervisory position sought and, therefore, justified removal of his name from the eligible list for promotional appointment.

We are also satisfied that the administrative adjudication comported with procedural due process. See Wolff v. McDonnell, 418 U.S. 539, 94 S. Ct. 2963, 41 L. Ed. 2d 935 (1974); Avant v. Clifford, 67 N.J. 496, 522 (1975). See also Jacobs v. Stephens, 139 N.J. 212 (1995); McDonald v. Pinchak, 139 N.J. 188 (1995). With only an expectancy in potential future employment or promotion, an eligible whose name has been removed from an eligible list is not entitled to a hearing. See N.J.S.A. 11A:2-6(b); N.J.A.C. 4A:4-6.3; N.J.A.C. 4A:4-6.6(b). Rather, list removal appeals are treated as reviews of the written record. Ibid. Hearings are granted only in those limited instances where the Board determines "that a material and controlling dispute of fact exists that can only be resolved by a hearing." See N.J.A.C. 4A:2-1.1(d). Here, as the Board properly recognized, no material issue of disputed fact has been presented that would require a hearing. See Belleville v. Dep't of Civil Serv., 155 N.J. Super. 517, 519-20 (App. Div. 1978). Unlike the situation in In re Wiggins, 242 N.J. Super. 342 (App. Div. 1990), here there is no dispute about Bonafide's disciplinary history. Moreover, there remains the fact that his recent six-day suspension for misuse of public property, which occurred just a few months before the list was issued, was the basis for his removal from the list for promotion to lieutenant.

 
Finally, we are satisfied that the remaining feature of Bonafide's administrative due process claim, namely that he was denied access to documents relied upon by the County in removing him from the eligible list, is without merit. R. 2:11-3(e)(1)(D) & (E).

Affirmed.

(continued)

(continued)

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A-1658-04T1

February 7, 2006