JONATHAN ANDREW ROMEO v. STATE OF NEW JERSEY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2967-07T22967-07T2

JONATHAN ANDREW ROMEO,

Plaintiff,

v.

STATE OF NEW JERSEY,

Defendant-Respondent,

and

NEW JERSEY DEPARTMENT OF

ENVIORNMENTAL PROTECTION,

Defendant,

and

STATE PARK RANGER BARRY STEWART,

Defendant-Appellant.

____________________________________

 

Argued March 3, 2009 - Decided

Before Judges Graves and Grall.

On appeal from the Office of the Attorney

General, Department of Law & Public

Safety.

Anthony M. Arbore argued the cause for

appellant State Park Ranger Barry Stewart (Forster & Arbore, attorneys; Mr. Arbore, on the brief).

Karen L. Jordan, Deputy Attorney General,

argued the cause for respondent State of

New Jersey and Attorney General (Anne

Milgram, Attorney General, attorney; Lewis

Scheindlin, Assistant Attorney General, of counsel; Ms. Jordan, on the brief).

PER CURIAM

Barry Stewart, formerly a State Park Ranger, and his former employer, the State of New Jersey Department of Environmental Protection (DEP), are defendants in a civil action filed by plaintiff Jonathan Andrew Romeo to recover damages for injuries he sustained when Stewart shot him in the leg. The shooting occurred at 9:15 p.m. while Stewart was on duty at the Hopatcong State Park Ranger Station. Romeo entered a darkened room in the station through a side door. He had not turned on the lights when Stewart fired the shot.

Pursuant to the Tort Claims Act, N.J.S.A. 59:1-1 to 12-3, Stewart filed a request for legal representation in the civil action, which the Attorney General denied. See N.J.S.A. 59:10A-1, -2. In accordance with Rule 2:2-3(a)(2) and Prado v. State, 186 N.J. 413, 424 (2006), Stewart appeals from the Attorney General's determination.

The scope of the Attorney General's duty to provide a defense for a State employee under the Tort Claims Act is clear. If the employee requests representation, the Attorney General generally must provide for the defense of any action brought against "a State employee or former State employee on account of an act or omission in the scope of his employment." N.J.S.A. 59:10A-1; Prado, supra, 186 N.J. at 426-27. A request for representation may be denied only if the Attorney General determines "that it is more probable than not that: (1) the employee acted outside the scope of his employment; (2) the employee engaged in actual fraud or willful misconduct, or acted with actual malice; or (3) the defense of the employee would create a conflict of interest with the State." Id. at 428; N.J.S.A. 59:10A-1 to -2. This "formulation places the appropriate burden on the Attorney General to justify a departure from the general rule of representation." Prado, supra, 186 N.J. at 427.

The Attorney General's decision to refuse a defense is best grouped with those our courts have deemed quasi-adjudicative in nature. See In re Issuance of a Permit, 120 N.J. 164, 172 (1990) (discussing the cases). "Agencies acting in an adjudicative capacity review evidence, make findings of fact, and exercise discretion in applying the law to those facts." Id. at 171. That is the process involved in making a determination that there are grounds for a refusal to provide a defense under Prado and N.J.S.A. 59:10A-2.

The Attorney General's justification for refusing "to provide representation to the employee" must be provided to the employee in "a written statement explaining the reasons for the refusal." Prado, supra, 186 N.J. at 428. The written statement not only gives the employee an appropriate explanation but also serves to "aid appellate review of the Attorney General's determination." Ibid. Once rendered, "the Attorney General's final administrative decision is entitled to the usual deference accorded to such a decision." Ibid. It will not be reversed unless "it is arbitrary, capricious or unreasonable or it is not supported by substantial credible evidence in the record as a whole." Ibid. (internal quotations omitted).

The Attorney General's written statement in this case, however, does not permit us to determine whether her decision is sustainable. "'[N]o matter how great a deference the court is obliged to accord the administrative determination, it has no capacity to review at all unless . . . the agency has stated its reasons grounded on the record . . . .'" In re Permit, supra, 120 N.J. at 173 (quoting State v. Atley, 157 N.J. Super. 157, 163 (App. Div. 1978)).

The problem here is not the adequacy of the factual record. The Attorney General can and may make a decision about representation based on "a limited record[] consisting only of the complaint, an internal investigation by a state agency, and the employee's submissions." Prado, supra, 186 N.J. at 423-24. The record in this case was more extensive. It included reports of investigations of the shooting conducted by the local police department, the Division of Criminal Justice and the State Police; transcripts of statements given by Romeo and Stewart; a statement given by another Park Ranger present at the time of the shooting; orders and policies on the use of force issued by the State Park Service and the Attorney General; a final notice of disciplinary action terminating Stewart's State employment; and an indictment charging Stewart with recklessly causing bodily injury with a deadly weapon.

The deficiency is in the lack of factual findings and reasons supporting the determination. "[A]n administrative judgment [must] express a reasoned conclusion. A conclusion requires evidence to support it and findings of appropriate definiteness to express it." Bailey v. Bd. of Review, 339 N.J. Super. 29, 33 (App. Div. 2001) (internal quotation omitted).

"It is axiomatic in this State . . . that an administrative agency acting quasi-judicially must set forth basic findings of fact, supported by the evidence and supporting the ultimate conclusions and final determination, for the salutary purpose of informing the interested parties and any reviewing tribunal of the basis on which the final decision was reached so that it may be readily determined whether the result is sufficiently and soundly grounded or derives from arbitrary, capricious or extra-legal considerations."

[In re Permit, supra, 120 N.J. at 172 (quoting In re Application of Howard Sav. Inst., 32 N.J. 29, 52 (1960) (citations omitted)).]

"[A] purported statement of reasons which . . . does no more than parrot, in purely conclusionary terms, the language of the [relevant legal standard] is no statement at all." Atley, supra, 157 N.J. Super. at 164. A statement of that quality gives a reviewing court "no way of telling . . . whether [the question at issue] was in fact fully and carefully considered" in accordance with the legal standards. Ibid. A "reasoned explanation [for the determination] based on specific findings of basic facts" is needed. Lister v. J.B. Eurell Co., 234 N.J. Super. 64, 73 (App. Div. 1989).

In effect, agency conclusions stated without reference to the supporting facts leave the fact-finding to the court, but that "is the function of the administrative authority and not the courts." N.J. Bell Tel. Co. v. Commc'ns Workers of Am., 5 N.J. 354, 376-77 (1950). There is little difference between the usurpation of agency authority involved when judges substitute their factual findings for those made by the agency and when judges make factual findings because the agency has made none. In both instances the court moves beyond the limited inquiries involved in proper judicial review of an agency decision: "(1) whether . . . the agency follow[ed] the law; (2) whether the record contains substantial evidence to support the findings on which the agency base[d] its action; and (3) whether, in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made . . . ." Brady v. Dep't of Pers., 149 N.J. 244, 256 (1997) (internal quotations omitted).

The written statement of reasons provided in this case does no more than recite the legal standards and state a conclusion. The author lists the claims in the civil action and notes that they are based on Romeo's "allegation" that Stewart "used [his] service weapon to shoot [him] in the leg after he entered the Ranger Station." The author also acknowledges the existence of an indictment charging Stewart, his subsequent admission to the pretrial intervention program and the termination of his employment with the State. Nothing in the written statement relates this recitation of procedural facts to the legal standard for refusal of a defense.

The only findings and reasoning are contained in three paragraphs of the decision quoted below.

It is the determination of the Attorney General that there is sufficient evidence of your willful misconduct and that your actions were outside the scope of employment which precludes you representation by the State.

. . . .

Notwithstanding a State employee's request for legal representation, pursuant to N.J.S.A. 59:10A-2, the Attorney General may refuse to provide legal representation to a State employee if: (a) the employee acts outside the scope of his or her employment; (b) the act was because of actual fraud, willful misconduct or actual malice; or (c) it is determined that the defense of the action or proceeding by the Attorney General would create a conflict of interest between the State and the employee or former employee.

A State employee's request for legal representation may be denied if the Attorney General has determined that it is more probable than not that one of the three exceptions set forth in N.J.S.A. 59:10A-2 applies. Prado v. State, 186 N.J. 413 (2006). We have determined that this standard has been met with regard to this matter pursuant to N.J.S.A. 59:10A-2(a) and (b) above.

Because this statement does not permit this "court to intelligently review [the] decision and ascertain if the facts upon which the order is based afford a reasonable basis for" the determination, In re Permit, supra, 120 N.J. at 180, we follow the "usual" course, which is to retain jurisdiction and "remand the matter to the agency to correct the deficiency," id. at 173. A remand is especially appropriate because the application of the legal standards governing "willful conduct" and "scope of employment" in this case involving discharge of a service firearm by an officer on duty will have obvious significance to law enforcement conduct. See Fielder v. Stonack, 141 N.J. 101, 123-27, 125 n.5 (1995). For that reason, the matter should be addressed, in the first instance, by the State's chief law enforcement officer, N.J.S.A. 52:17B-98.

Mindful of the Supreme Court's direction to expedite review of the Attorney General's decisions denying representation, Prado, supra, 186 N.J. at 424, we provide the following peremptory schedule for future submissions. The Attorney General's amended written statement must be filed and served within twenty days of the date of this decision. Stewart will have ten days from that date to file a supplemental brief, and the Attorney General will have ten days to file any supplemental response.

The appeal is remanded for an amended written statement of findings and reasons. Jurisdiction is retained, and the parties are directed to comply with the schedule for future submissions set forth above.

 

The omitted paragraph quotes N.J.S.A. 59:10A-1.

(continued)

(continued)

9

A-2967-07T2

March 13, 2009