IN THE MATTER OF THOMAS F FRICANO, BOROUGH OF FREEHOLD

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2280-07T32280-07T3

IN THE MATTER OF THOMAS F.

FRICANO, BOROUGH OF FREEHOLD

_______________________________

 
 

Submitted December 17, 2008 - Decided

Before Judges Parrillo and Lihotz.

On appeal from a Final Administrative Decision of the New Jersey Merit System Board, Docket No. 2008-1217

and No. 2008-3215.

Fusco & Macaluso, P.A., attorneys for appellant

Thomas F. Fricano (Eric Winston, on the brief).

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

lieu of brief).

McKenna, DuPont, Higgins & Stone, attorneys for

respondent, Borough of Freehold (Edward G. Washburne,

on the brief).

PER CURIAM

Appellant Thomas F. Fricano appeals from final decisions of the Merit System Board (Board), dated September 27, 2007 and December 7, 2007, that upheld his resignation in good standing from the Borough of Freehold (Freehold or Borough) Police Department. We affirm.

Briefly, by way of background, appellant received a regular appointment as a police officer in Freehold on April 3, 2006. The appointment was subject to the successful completion of a one-year probationary working test period, commencing after completion of a police training course. N.J.A.C. 4A:4-5.2(d)(1). On February 2, 2007, appellant, through a written letter, resigned to pursue other opportunities in law enforcement. The appointing authority accepted the resignation, which was made effective February 22, 2007.

The circumstances surrounding appellant's resignation are in dispute and at the core of this appeal. According to appellant, on February 2, 2007, after having served ten months of his one-year probationary working term, he was summoned to the office of Police Chief Michael Beierschmitt, where he was ordered by the Chief, in the presence of Captain Michael Roth and Police Officer Michael Sweetman, "to resign or be terminated immediately." Denied his request for legal representation or to have a Police Benevolent Association (PBA) representative present, appellant drafted and submitted a letter of resignation under duress and coercion. Thereafter, on February 16, 2007, his counsel wrote Chief Beierschmitt requesting that appellant be able to rescind his resignation, but was subsequently advised by the Borough attorney that appellant would not be reinstated, stating that "they could have fired him instead." On March 13, 2007, appellant was issued a Preliminary Notice of Disciplinary Action (PNDA), charging him with numerous violations for incompetence/inefficiency, inability to perform duties, and other sufficient cause. The appointing authority subsequently withdrew these charges on March 22, 2007 and, instead, on March 28, 2007, issued appellant a letter indicating that he did not satisfactorily complete his working test period and that he was being terminated effective April 3, 2007.

The Borough offers a different version. When called to his office, the Chief advised appellant that his performance during the working test period had not been satisfactory, and, therefore, offered appellant the option to resign effective February 22 or face termination for failure to satisfactorily complete his working test period. This offer was made so that appellant could avoid any stigma which might attach to an involuntary termination. Appellant decided to resign and submitted a resignation letter the same day. In the letter, appellant explained that he resigned "to pursue a different choice in the Law Enforcement Career." Although he did not work after February 2, he was paid through February 22, and his resignation was recorded effective February 22, 2007. When subsequently informed of appellant's intention to challenge his resignation, the police department issued a PNDA on March 13, 2007, charging appellant with incompetence, inability to perform duties and other sufficient cause and indicated that appellant was to be removed effective February 22, 2007 for "[f]ailure to complete working test period." As noted, on March 22, 2007, the police department withdrew the charges and, instead, as a cautionary measure, issued a letter to appellant informing him that he had not successfully completed his working test period.

Appellant then filed an administrative appeal challenging his resignation. In its September 27, 2007 decision, the Board upheld his resignation, finding insufficient evidence that appellant's resignation was the product of duress or coercion:

There is not one scintilla of evidence which establishes that the appointing authority exerted any improper pressure on the appellant in this regard. With respect to the appellant's argument that he was under duress because he was threatened with termination, an appointing authority has a legal right to pursue disciplinary action against an employee. Thus, the pursuit of disciplinary action cannot constitute duress unless an appointing authority pursued its legal right in an oppressive manner or purely as a means to extort a settlement.

On appeal, the essential issue is whether the Board's decision upholding appellant's resignation is supported by substantial credible evidence in the record as a whole. On this score, it is well settled that 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). Further, decisions of administrative agencies carry with them a presumption of reasonableness. See 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). We may not vacate an agency's determination because of doubts as to its wisdom or because the record may support more than one result. See generally Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980).

Furthermore, it is not our function to substitute our independent judgment for that of an administrative body . . . where there may exist a mere difference of opinion concerning the evidential persuasiveness of the relevant proofs. As a reviewing court, we will not weigh the evidence, determine the credibility of witnesses, draw inferences and conclusions from the evidence, or resolve conflicts therein.

[De Vitis v. N.J. Racing Comm'n, 202 N.J. Super. 484, 489-90 (App. Div.), certif. denied, 102 N.J. 337 (1985) (citations omitted).]

To be sure, a public employee such as appellant may appeal a resignation in good standing if the resignation was the result of duress or coercion. N.J.A.C. 4A:2-6.1(d). Appellant, however, has the burden of proving that the resignation was the result of duress or coercion on the part of the appointing authority. In this regard, the test of duress is subjective and looks to the condition of the mind of the person subjected to coercive measures, not to whether the duress is of "such severity as to overcome the will of a person of ordinary firmness." Shanley & Fisher, P.C. v. Sisselman, 215 N.J. Super. 200, 212-13 (App. Div. 1987) (citation omitted). Even where the pressure used has had its desired effect, a party will not be relieved of contractual obligations unless the pressure is wrongful, "and not all pressure is wrongful." Rubenstein v. Rubenstein, 20 N.J. 359, 367 (1956); see also Wolf v. Marlton Corp., 57 N.J. Super. 278, 286 (App. Div. 1959). It is a "familiar general rule . . . that a threat to do what one has a legal right to do does not constitute duress." Wolf, supra, 57 N.J. Super. at 287. "A 'threat' is a necessary element of duress, and an announced intention to exercise a legal right cannot constitute a threat." Garsham v. Universal Res. Holding, Inc., 641 F. Supp. 1359 (D.N.J. 1986), aff'd, 824 F.2d 223 (3d Cir. N.J. 1987).

Here, the evidence amply demonstrated that appellant was told he would be terminated because he had not satisfactorily performed during his working test period, and, as a result, he was offered the chance to resign to avoid any stigma attached to termination. Consequently, appellant voluntarily chose to resign rather than exercise his legal right to challenge his termination. See N.J.A.C. 4A:2-4.1 to -4.3 (civil service employee has right to appeal his termination for unsatisfactory performance during the working test period). Appellant's deliberate choice of available alternatives cannot, under these circumstances, be ascribed to duress. Although the surrounding circumstances might, understandably, have been stressful, the decision was, nevertheless, made in light of a bargain then considered both expedient and pragmatic. We are satisfied, therefore, that the Board reasonably determined, based on the record evidence, the appellant voluntarily resigned his employment as a police officer.

Affirmed.

 

The appointing authority also stated that appellant was not a member of the PBA at the time of his resignation since he was a probationary officer, and, therefore, he was not entitled to the protections of the collective bargaining agreement.

(continued)

(continued)

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A-2280-07T3

January 13, 2009