SERGIO GONZALEZ v. BOARD OF REVIEW and HOUSING AUTHORITY OF ENGLEWOOD

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0008-08T20008-08T2

SERGIO GONZALEZ,

Appellant,

v.

BOARD OF REVIEW and HOUSING

AUTHORITY OF ENGLEWOOD,

Respondents.

__________________________________________________

 

Submitted July 15, 2009 - Decided

Before Judges R. B. Coleman and Graves.

On appeal from the Board of Review, Department of Labor, Docket No. 165,918.

Richard S. Mazawey, attorney for appellant.

Anne Milgram, Attorney General, attorney for respondent Board of Review (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Brady Montalbano Connaughton, Deputy Attorney General, on the brief).

Respondent Housing Authority of Englewood has not filed a brief.

The opinion of the court was delivered by

R. B. COLEMAN, J.A.D.

Claimant Sergio Gonzalez appeals from a final decision of the Board of Review (Board), dated July 21, 2008, applying N.J.S.A. 43:21-5(b) to invalidate his claim for unemployment benefits. We affirm.

Gonzalez began working for the City of Englewood Housing Authority (Housing Authority) as a bookkeeper on March 4, 2002. On August 27, 2007, Gonzalez signed a letter of resignation after being investigated by the Englewood Police Department for theft of Housing Authority property. Gonzalez and his boss, Housing Authority Deputy Director Ronnie Faison, were accused of unlawfully obtaining personal items from PC Richard & Son worth approximately $4,500 using Housing Authority funds. The Housing Authority normally purchased items from PC Richard & Son to furnish appliances for low-income housing.

On September 2, 2007, Gonzalez filed a claim for unemployment benefits. On October 10, 2007, a deputy director of the Division of Unemployment Insurance determined that Gonzalez was disqualified from benefits under N.J.S.A. 43:21-5(b), because he was discharged from employment for having committed an act punishable as a first- to fourth-degree crime under the New Jersey Code of Criminal Justice. Gonzalez filed an administrative appeal.

On December 28, 2007, Gonzalez and his attorney participated in a telephone hearing before an appeals examiner for the New Jersey Department of Labor Appeal Tribunal (Appeal Tribunal). The employer was not present at the hearing, however. During the hearing, Gonzalez admitted that he obtained the items from PC Richard & Son because "Mr. Faison told me that he needs some items for his house." He further admitted that he obtained the items by presenting a Housing Authority invoice to a salesman. According to Gonzalez, picking up appliances from PC Richard & Son did not fall within the scope of his regular bookkeeping duties; he explained that he complied with Mr. Faison's orders only because he feared that he would lose his job if he refused. Gonzalez also testified that he wrote a check (which he was not authorized to sign) to PC Richard & Son for the merchandise, but asserted it was for a value between $1,400 and $2,000, and not for $5,000 as claimed by the employer.

On January 2, 2008, the Appeal Tribunal reversed the deputy director's ineligibility determination, relying on Gonzalez's unchallenged testimony. However, on February 15, 2008, the Board remanded the matter to the Appeal Tribunal for "a hearing and decision on all issues."

The appeals examiner conducted a second hearing on May 20, 2008. At that hearing, Roslyn Anderson, the Housing Authority's executive director, testified that while Gonzalez was being questioned at the police station about the alleged theft, he admitted to her that he was a participant in the scheme and he was sorry for his participation. Anderson further testified that the police told her that Gonzalez confessed to them that he personally picked up a television and a grill from the PC Richard & Son store. She also stated that televisions and barbecue grills are not items that the Housing Authority buys to furnish low-income housing. Gonzalez invoked his right not to testify at the May 20 hearing.

In a May 21, 2008 decision, the Appeal Tribunal found that

The employer learned that the claimant had been arrested when contacted by the police. The employer appeared with the resignation form and the at the suggestion of the police, took the employer's property held by the claimant. The claimant was arrested after a[] police investigation caused by a retail store which alerted police to discrepancies in purchases on behalf of the employer. The claimant refused to deny or confirm whether he had picked up a flat screen television and a barbecue grill from the retail store after an approved invoice for a stove and refrigerator had been voided. The employer purchases household items with federal funds for low-income housing. The claimant is scheduled to appear in court to answer to criminal charges.

Based on these findings, the Appeal Tribunal concluded that Gonzalez was, in fact, disqualified under N.J.S.A. 43:21-5(b) for any benefits accruing from his employment with the Housing Authority because

[t]he claimant's actions of picking up a flat screen television and barbecue grill after an invoice had been voided for a refrigerator and a stove . . . is punishable as a crime of the first through fourth degree under the New Jersey Code of Criminal Justice [N.J.S.A.] 2C:1-1, et seq. Therefore, this discharge is a discharge for gross misconduct connected with work.

On May 30, 2008, the Board of Review affirmed the determination of the Appeal Tribunal. It substantially adopted the Appeal Tribunal's factual findings and noted further that "the amount of the invoice in question was $4,500.00" and that "the claimant admitted to the employer that he was a participant in the theft and apologized for his actions." Gonzalez then filed the present appeal.

We begin by noting that our scope of review is limited. We must accept the factual determinations of an administrative agency such as the Board if they are supported by sufficient credible evidence in the record. Lourdes Med. Ctr. v. Bd. of Review, 197 N.J. 339, 367 (2009). We may not substitute our own judgment for that of the Board even if we feel that we would have reached a different conclusion. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). "Unless a Court finds that the agency's action was arbitrary, capricious, or unreasonable, the agency's ruling should not be disturbed." Ibid.

Gonzalez argues that the Board's decision must be reversed because the decision was not supported by substantial, credible evidence, and because it was based on allegations of criminal conduct that have not been brought before a jury for a finding of guilt. Gonzalez argues in the alternative that he should be granted a stay of the denial of his unemployment benefits and a stay of any restitution for benefits received pending his criminal trial. Gonzalez's arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We add only these brief comments.

First, we note that the Board was entitled to deny benefits upon a finding that Gonzalez committed an act punishable as a crime, even though criminal charges against Gonzalez were still pending. Under the Unemployment Compensation Law, if a claimant for unemployment benefits is discharged

for gross misconduct connected with the work because of the commission of an act punishable as a crime of the first, second, third or fourth degree under the "New Jersey Code of Criminal Justice," [N.J.S.A.] 2C:1-1 et seq., the individual shall be disqualified in accordance with the disqualification prescribed in subsection (a) of this section and no benefit rights shall accrue to any individual based upon wages from that employer for services rendered prior to the day upon which the individual was discharged.

[N.J.S.A. 43:21-5(b) (emphasis added).]

Subsection (a), referenced above, provides that a disqualification for benefits continues "until the individual becomes reemployed and works four weeks in employment . . . and has earned in employment at least six times the individual's weekly benefit rate, as determined in each case." N.J.S.A. 43:21-5(a).

Pursuant to plain language of the statute, there is no requirement that a claimant be convicted of a crime before he is denied unemployment benefits under N.J.S.A. 43:21-5(b). It is only necessary that the Board find that the claimant committed an act "punishable" as a crime. Ibid. In an administrative proceeding, "it is only necessary to establish the truth of the charges by a preponderance of the believable evidence and not to prove guilt beyond a reasonable doubt." Atkinson v. Parsekian, 37 N.J. 143, 149 (1962); see also In re Darcy, 114 N.J. Super. 454, 458 (App. Div. 1971) ("The quantum of proof in a criminal trial is different from and higher than that in proceedings before an administrative agency."). For the same reason, Gonzalez is not entitled to a stay pending his criminal trial.

Second, substantial, credible evidence supported the Board's decision. Anderson testified that "according to the police department and according to our purchase orders . . . [Gonzalez and his boss, Faison] purchased personal items with our Housing Authority money[.]" Anderson also testified that Gonzalez admitted during the December 28, 2007 hearing that Faison had told him to obtain "some items for his house" from PC Richard & Son. Though he did not explain the scheme in detail, Gonzalez admitted that he used an invoice from the Housing Authority to obtain the items. According to Anderson, Gonzalez admitted to her and to the police department to having been a "participant" in the scheme.

The facts in the record establish that Gonzalez committed a "theft by failure to make required disposition of property received," N.J.S.A. 2C:20-9.

A person who purposely obtains or retains property upon agreement or subject to a known legal obligation to make specified payment or other disposition, whether from such property or its proceeds or from his own property to be reserved in equivalent amount, is guilty of theft if he deals with the property obtained as his own and fails to make the required payment or disposition. The foregoing applies notwithstanding that it may be impossible to identify particular property as belonging to the victim at the time of the actor's failure to make the required payment or disposition.

[N.J.S.A. 2C:20-9.]

"Theft constitutes a crime of the fourth degree if the amount involved is at least $200.00 but does not exceed $500.00." N.J.S.A. 2C:20-2(b)(3). Theft is a third-degree crime if the amount involved is worth between $500 and $75,000. N.J.S.A. 2C:20-2(b)(2)(a).

Gonzalez admitted that he used Housing Authority money to purchase items for Faison's home, an act that constitutes theft by failure to make required disposition of property received, N.J.S.A. 2C:20-9. And even if one were to accept Gonzalez's claim that the misappropriated merchandise was worth no more than $2,000, a theft of that value would qualify as a crime of the third degree. N.J.S.A. 2C:20-2(b)(2)(a). Accordingly, the Board did not abuse its discretion in finding that Gonzalez was disqualified from receiving unemployment benefits under N.J.S.A. 43:21-5(b).

 
Affirmed.

(continued)

(continued)

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A-0008-08T2

June 14, 2010