IN THE MATTER OF SERGEANT RICHARD GACINA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2701-07T3

IN THE MATTER OF SERGEANT

RICHARD GACINA # 4383

____________________________

October 13, 2010

Submitted September 22, 2010 - Decided

Before Judges Fuentes, Gilroy and Ashrafi.

On appeal from the final decision of the New Jersey Department of Law and Public Safety, Division of State Police, Docket No. 2005-0394.

Michael J. Reimer, attorney for appellant Sergeant Richard Gacina.

Paula T. Dow, Attorney General, attorney for respondent Division of State Police (Phillip R. Dowdell, Deputy Attorney General, on the brief).

PER CURIAM

Appellant Sergeant Richard Gacina appeals from the January 7, 2008 final decision of the Superintendent of the Division of State Police (NJSP). We affirm.

On April 26, 2005, the Superintendent served appellant with notice of a "general disciplinary hearing," charging appellant with four violations of NJSP's rules and regulations: disobeying a lawful order of a superior officer (charge one); insubordination (charge two); behaving in a disrespectful manner toward any commissioned officer, non-commissioned officer or other member (count three); and acting or behaving in an official capacity to the personal discredit of himself or to the discredit of the NJSP (count four). Appellant pled not guilty to the charges, and the NJSP transferred the matter to the Office of Administrative Law (OAL) as a contested case.

The matter was tried before the OAL on six intermittent days between April and August 2007. During the trial, the NJSP forwarded appellant's disciplinary history to the presiding Administrative Law Judge (ALJ). On November 26, 2007, the ALJ found appellant guilty of the first charge only, by failing to promptly obey Lieutenant Eric Estok's April 7, 2005 order to attend a meeting with himself and another NJSP sergeant. After determining that appellant's actions were "contrary to good order and discipline that exists in a paramilitary organization as the [NJSP]," the ALJ recommended that appellant be suspended from active duty for five days without pay.

On January 7, 2008, the Superintendent accepted and adopted the ALJ's recommendation, finding defendant guilty of charge one, but increased the penalty to ten days' suspension without pay based upon appellant's disciplinary history.

On appeal, appellant argues that: charges one, two, and three were too trivial to have formed the basis of a general disciplinary hearing; the NJSP's failure to call Estok to testify in its case in chief compels an adverse inference against the NJSP; the ALJ prohibited appellant from presenting a meaningful defense by introducing evidence to place the charges in context; and the ALJ improperly permitted the NJSP to submit appellant's disciplinary history prior to the ALJ adjudicating the merits of the charges. Appellant further contends that the ALJ should have directed the NJSP to turn over to appellant documents from the State Police's Employee Assistance Program that had been reviewed by an NJSP witness in preparation for testifying at trial; the ALJ should have directed the County Prosecutor to investigate potential perjury by three NJSP witnesses; and the thirty-day suspension imposed by the Superintendent upon appellant's plea of guilty to an unrelated charge of altering a motor vehicle inspection sticker was overly punitive.

Judicial review of agency decisions is limited in scope. Circus Liquors, Inc. v. Middletown Twp., 199 N.J. 1, 9 (2009); In re Herrmann, 192 N.J. 19, 27 (2007). 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). "An administrative agency's final quasi-judicial decision will be sustained unless there is a clear showing that it is arbitrary, capricious, or unreasonable, or that it lacks fair support in the record." In re Herrmann, supra, 192 N.J. at 27-28. "Even if [we] may have reached a different result had [we] been the initial decision maker, [we] may not simply 'substitute [our] own judgment for the agency's.'" Circus Liquors, supra, 199 N.J. at 10 (quoting In re Carter, 191 N.J. 474, 483 (2007)).

The above standard applies to the appellate court's review of disciplinary sanctions. In re Herrmann, supra, 192 N.J. at 28; see also Div. of Alcoholic Beverage Control v. Maynards, Inc., 192 N.J. 158, 183-84 (2007) (holding that appellate review of an agency's choice of sanction is limited and such decisions will be afforded substantial deference). "In light of the deference owed to such determinations, when reviewing administrative sanctions, 'the test . . . is whether such punishment is so disproportionate to the offense, in light of all the circumstances, as to be shocking to one's sense of fairness.'" In re Herrmann, supra, 192 N.J. at 28-29 (quoting In re Polk, 90 N.J. 550, 578 (1982)).

The NJSP is a unique government agency because of its "quasi-military orientation" and characteristics. State v. State Troopers Fraternal Assoc., 134 N.J. 393, 415 (1993). Pursuant to N.J.S.A. 53:1-10, the Superintendent has "absolute discretion" to regulate the discipline of troopers. In re Bernaducci, 85 N.J. Super. 152, 155 (App. Div. 1964), certif. denied, 44 N.J. 402 (1965); see also In re Carberry, 114 N.J. 574, 578 (1989) (stating that "the [S]uperintendent has the ultimate responsibility for maintaining discipline among state police officers" as a means of promoting the public interest and safety). "[T]he responsibility for determining whether a trooper has committed a violation of the Rules and Regulations, and the discipline to be imposed therefor, are plainly matters of inherent managerial prerogative to be discharged by the Superintendent and his designated staff." State Troopers Fraternal Assoc., supra, 134 N.J. at 416.

We first address appellant's argument challenging the thirty-day suspension he received after pleading guilty to an unrelated charge of altering a motor vehicle inspection sticker. On April 26, 2005, the Superintendent served appellant with a separate notice of summary disciplinary action that, among other things, charged appellant with acting or behaving in an official capacity to the personal discredit of appellant, or to the discredit of the NJSP by altering a motor vehicle inspection sticker on appellant's personal motor vehicle. On October 18, 2006, the ALJ granted summary decision finding appellant guilty of the charge and recommending a thirty-day suspension from duty without pay. On December 1, 2006, the Superintendent accepted and adopted the findings, conclusions, and penalty recommendations of the ALJ and suspended appellant from duty for thirty days. Because appellant only appealed from the January 7, 2008 final decision, we do not consider appellant's argument challenging the thirty-day penalty imposed under the December 1, 2006 final decision. See Pressler & Verniero, Current N.J. Court Rules, comment 6.1 on R. 2:5-1 (2011) (providing "it is only the judgments or orders or parts thereof designated in the notice of appeal which are subject to the appeal process and review").

We have considered appellant's remaining arguments in light of the record and applicable law. We affirm substantially for the reasons expressed in the Superintendent's January 7, 2008 final decision adopting the factual findings and conclusions of the ALJ. R. 2:11-3(e)(1)(D). The ALJ's findings and conclusions are supported by sufficient credible evidence in the record. Nor do we find the ten-day suspension arbitrary or capricious. In light of the record, the penalty is not so disproportionate to the violation that it shocks one's sense of fairness. In re Herrmann, supra, 192 N.J. at 28-29. Nevertheless, we add the following comment.

Appellant argues that the ALJ improperly permitted the NJSP to introduce appellant's disciplinary history prior to ruling on the merits of the charges. Appellant contends that the NJSP sent the ALJ appellant's disciplinary history without notice to appellant. Appellant cites West New York v. Bock, 38 N.J. 500 (1962) for the principle that evidence of an individual's disciplinary history cannot be introduced before the individual's guilt has been established. We disagree.

The Deputy Attorney General advised the ALJ and appellant's counsel on April 17, 2007, that he would present to the ALJ at the next hearing date a copy of appellant's "precise disciplinary history" pursuant to Bock with the understanding that it was being presented for consideration only "if that becomes relevant." Appellant did not object. The Deputy Attorney General forwarded the disciplinary history to the ALJ and to appellant's counsel on July 18, 2007. At the close of the disciplinary proceeding on August 29, 2007, the ALJ overruled appellant's counsel's objection to the submission of the disciplinary history without having first determined the merits of the charges. The record does not support appellant's contention that the Deputy Attorney General improperly submitted the disciplinary history without advance notice to appellant.

Although, generally, use of an employee's past disciplinary history cannot be utilized to prove a charge, it, nevertheless, is appropriate to consider the history in determining the proper penalty for an offense. Bock, supra, 38 N.J. at 523; see In re Carter, 191 N.J. 474, 481, 486 (2007). Indeed, such history should be introduced in evidence at the hearing by the party desiring to have it considered, "so that it may be fully known to the adversary as well as to the tribunal and may be met or explained in any material or relevant manner." Bock, supra, 38 N.J. at 524. Bock does not require that disciplinary hearings be bifurcated--one phase as to guilt and a second phase as to penalty--as appellant argues. Rather, Bock holds that prior disciplinary infractions cannot be used to prove the present offenses. Id. at 523. There is no indication that the ALJ or the Superintendent improperly considered appellant's disciplinary history in their determination of appellant's guilt.