IN THE MATTER OF DAVID FIGUEROA

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3718-04T13718-04T1

IN THE MATTER OF

DAVID FIGUEROA.

_______________________________________

 

Submitted January 25, 2006 - Decided February 8, 2006

Before Judges Stern and Yannotti.

On appeal from a Final Administrative Decision of the Merit System Board.

Fusco & Macaluso, attorneys for appellant (Ciro A. Spina, III, on the brief).

JoAnne Y. Watson, Corporation Counsel, City of Newark, attorney for respondent City of Newark (Christopher H. Thogmartin, on the brief).

Nancy Kaplen, Acting Attorney General of New Jersey, attorney for respondent Merit System Board (Pamela N. Ullman, Deputy Attorney General, on the statement in lieu of brief).

PER CURIAM

David Figueroa (Figueroa) appeals from a final determination of the Merit System Board (Board), which upheld two disciplinary actions by Figueroa's employer, the police department of the City of Newark (City). We affirm.

We begin with a brief summary of the relevant facts. Figueroa was employed by the City as a police officer. The City issued a preliminary notice of disciplinary action dated December 6, 2000. Figueroa was charged with engaging in conduct unbecoming a public employee. The City alleged that, on July 19, 2000, Figueroa had engaged in a verbal dispute with his wife, which "resulted in him slapping her across the face." Figueroa also was charged with submitting a report in which he "knowingly and falsely denied" striking his wife. Figueroa additionally was charged with chronic inefficiency, incompetency and failure to perform duties. The City alleged that, although Figueroa previously had been placed on probation from September 28, 1999 through September 28, 2000 and directed not to engage in any new incidents of physical or verbal abuse in the probationary period, Figueroa's had engaged in acts of domestic violence and disregarded the probationary conditions. The City asserted that Figueroa had demonstrated "an unwillingness and/or inability to meet, obtain or produce results necessary" for satisfactory performance of his police duties. The City issued a final notice of disciplinary action on February 20, 2001, finding Figueroa guilty of the charges. Figueroa was suspended for six months without pay.

The City issued another preliminary notice of disciplinary action dated January 22, 2001. The City charged Figueroa with engaging in conduct unbecoming a public employee. The City alleged that on October 14, 2000, Figueroa publicly argued with his wife and broke the front window of her apartment. The City also charged Figueroa with chronic inefficiency or incompetency based on a psychological evaluation by Dr. Irving Guller (Guller), who found Figueroa unfit for duty. A final notice of disciplinary action was filed February 20, 2001, in which the City found Figueroa guilty of the charges and ordered his removal from employment effective February 20, 2001.

Figueroa sought review of these disciplinary actions by the Board, which referred the matter to the Office of Administrative Law (OAL) for a hearing before an Administrative Law Judge (ALJ). The ALJ conducted a hearing and on October 15, 2003, filed an initial decision.

The ALJ first addressed the charges set forth in the December 6, 2000 preliminary notice of disciplinary action. The ALJ found that on July 19, 2000, Figueroa had engaged in a domestic dispute with his wife and slapped his wife twice on the face. The ALJ found that Figueroa had engaged in conduct unbecoming an employee, which was cause for discipline under N.J.A.C. 4A:2-2.3(a)(6); and chronic inefficiency or incompetency, in violation of the City's rules and regulations. The ALJ upheld the six-month suspension.

The ALJ also addressed the charges in the January 22, 2001 preliminary notice of disciplinary action. The ALJ found that on October 14, 2000, Figueroa broke the front window of his wife's apartment. The ALJ also reviewed Guller's testimony concerning his psychological evaluation of Figueroa. Guller testified that Figueroa showed clear evidence of sociopathic personality traits. According to Guller, Figueroa demonstrated little remorse for anything he had done, was deceptive, and did not have the characteristics consistent with those required for police work. The ALJ found Guller's credentials to be "impeccable" and his testimony "detailed, cogent and persuasive." The ALJ noted that Guller's findings had not been impeached on cross-examination and Figueroa had not presented any contradictory expert testimony. The ALJ accepted Guller's opinion and found that Figueroa was unfit to perform the duties of a police officer.

Based on these findings, the ALJ determined that Figueroa had engaged in conduct unbecoming a public employee and was subject to discipline pursuant to N.J.A.C. 4A:2-2.3(a)(6). She also found that Figueroa violated the City's rules and regulations because he had been chronically inefficient and incompetent. In addition, the ALJ found that Figueroa was subject to discipline pursuant to N.J.A.C. 4A:2-2.3(a)(1) because of his "incompetency, inefficiency or failure to perform duties." The ALJ affirmed the removal of Figueroa from his position as a police officer.

Figueroa filed exceptions with the Board, which issued a decision dated December 18, 2003. The Board accepted the ALJ's findings with respect to the six-month suspension but remanded the matter to the OAL so that Figueroa could present testimony from an expert and have the opportunity to refute Guller's findings.

Thereafter, the ALJ conducted another hearing, at which Figueroa presented testimony from Dr. Frank Riccioli, who testified that he evaluated Figueroa and found no evidence of any mental disease or defect which prevented Figueroa from performing his job as a police officer. The ALJ issued another decision dated December 29, 2004, in which she found that Guller's testimony more persuasive than Riccioli's. The ALJ reaffirmed her finding that removal was justified based on Figueroa's psychological unfitness for duty.

Figueroa filed exceptions to the ALJ's decision. In its final decision dated February 24, 2005, the Board noted that the ALJ based her determination on credibility findings and an assessment of the expert testimony. The Board stated that the ALJ had the benefit of "hearing and seeing" the witnesses and was in a better position than the Board "to determine the credibility and veracity of the witnesses." The Board found, however, based on its de novo review of the record, that the ALJ's credibility determinations regarding the expert witnesses were proper and "the credible evidence in the record supports the ALJ's conclusion." The Board affirmed Figueroa's removal from his position as police officer.

Figueroa appeals and argues that the Board's decision is arbitrary and capricious and not supported by substantial credible evidence. He contends that there is insufficient credible evidence to establish that he twice slapped his wife in the face on July 19, 2000. Figueroa asserts that there is insufficient credible evidence to support the Board's finding that he broke the window of his wife's apartment on October 14, 2000. In addition, Figueroa argues that Guller's testimony failed to establish that he was psychologically unfit to perform the duties of a police officer.

"In light of the executive function of administrative agencies, judicial capacity to review administrative actions is severely limited." In re Musick, 143 N.J. 206, 216 (1996) (citing Gloucester County Welfare Bd. v. New Jersey Civil Serv. Comm'n, 93 N.J. 384, 390 (1993)). The judiciary can intervene only in "rare circumstances in which an agency action is clearly inconsistent with its statutory mission or other state policy." Ibid. We must affirm a decision of an administrative agency unless the determination is arbitrary, capricious, unsupported by substantial credible evidence in the record, or contrary to express or implied legislative policies. In re Juvenile Detention Officer, 364 N.J. Super. 608, 614 (App. Div. 2003). Furthermore, we are required to "defer to an agency's expertise and superior knowledge of a particular field." Greenwood v. State Police Training Center, 127 N.J. 500, 513 (1992).

We have carefully considered Figueroa's arguments and thoroughly reviewed the record. We are convinced that Figueroa's arguments are without merit and, therefore, the Board's final determination must be affirmed. R. 2:11-3(e)(1)(D) and (E). We affirm substantially for the reasons stated by the Board in its decisions dated December 18, 2003 and February 24, 2005.

 
Affirmed.

Figueroa also sought review by the Board of a ten-day suspension which resulting from a charge that Figueroa failed to respond to a subpoena requiring his appearance in the Superior Court. The ALJ dismissed the charge because it had not been filed within 45 days of the alleged infraction, as required by N.J.S.A. 40A:14-147. The Board adopted the ALJ's finding. The City has not appealed from this determination.

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A-3718-04T1

February 8, 2006