IN THE MATTER OF F.B.F and NORTHERN STATE PRISON NEW JERSEY DEPARTMENT OF CORRECTIONS

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0956-08T1

IN THE MATTER OF F.B.F. and

NORTHERN STATE PRISON, NEW

JERSEY DEPARTMENT OF CORRECTIONS

____________________________________

April 20, 2011

 

Argued March 30, 2011 - Decided

 

Before Judges Fisher, Sapp-Peterson and Simonelli.

 

On appeal from the Civil Service Commission.

Joseph A. Carmen argued the cause for appellant F.B.F.

 

Gregory A. Spellmeyer, Deputy Attorney General, argued the cause for respondent Civil Service Commission (Paula T. Dow, Attorney General, attorney; Robert T. Lougy, Assistant Attorney General, of counsel; Mr. Spellmeyer, on the brief).

PER CURIAM

This appeal involves the removal of appellant F.B.F. from his position as a senior corrections officer with respondent New Jersey Department of Corrections (DOC). We reverse.

On May 2, 1999, F.B.F. was arrested as a result of an incident involving his girlfriend. He was subsequently indicted for theft by unlawful taking, N.J.S.A. 2C:20-3, and possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a. On November 5, 1999, the DOC filed a Preliminary Notice of Disciplinary Action against F.B.F. seeking his removal for conduct unbecoming a public employee, N.J.A.C. 4A:2-2.3(a)6, and actions involving criminal matters, N.J.A.C. 4A:2-2.7. The notice specified the charges were based on the indictment and N.J.S.A. 2C:51-2 (the forfeiture of public office) may apply. On September 18, 2000, F.B.F. pled guilty to an amended charge of simple assault, N.J.S.A. 2C:12-1a(3), a disorderly persons offense. His allocution did not indicate the victim was his girlfriend.

On November 1, 2000, the DOC filed an amended Preliminary Notice of Disciplinary Action seeking F.B.F.'s removal for conduct unbecoming a public employee. The notice specified that the charges were based on F.B.F.'s guilty plea.

On May 11, 2001, the DOC filed an amended Preliminary Notice of Disciplinary Action seeking F.B.F.'s removal for conduct unbecoming a public employee and because he was "prohibited by law from possessing or using a firearm, N.J.A.C. 4A:2-2.3(a)3, 6 and 11." The notice specified that F.B.F. pled guilty to N.J.S.A. 2C:12-1a(3) (simple assault) and he was "prohibited by federal law from possession a firearm on or off duty and, therefore, cannot work as a law enforcement officer."

On June 13, 2001, the DOC filed a Final Notice of Disciplinary Action, removing F.B.F. from his position. F.B.F. appealed and the matter was transferred to the Office of Administrative Law for a hearing. An Administrative Law Judge (ALJ) concluded "that as a result of [F.B.F.'s] conviction for simple assault, [he was] prohibited from carrying a firearm under [the federal law known as] the Lautenberg Amendment[, 18 U.S.C.A. 922(g)(9),] and therefore [was] no longer qualified to perform the duties of a senior corrections officer."

The Merit System Board (MSB), now known as the Civil Service Commission (Commission),1 upheld the removal solely on the ground that F.B.F. was, as a result of his simple assault conviction, prohibited by the Lautenberg Amendment from carrying a firearm and therefore could no longer perform the duties of a senior corrections officer. F.B.F. appealed.

We reversed concluding that F.B.F. was "not prohibited by the Lautenberg Amendment from carrying a firearm as a result of his conviction under N.J.S.A. 2C:12-1a(3) and that the Merit System Board's final decision must be reversed because it was based solely on the Lautenberg Amendment. Nevertheless, because we recognized that F.B.F. could still be subject to disciplinary action based on his conviction and conduct, we remanded for further disciplinary proceedings. The conduct unbecoming charge was the only charge pending at the time of our decision.

The matter was assigned to a different ALJ for a hearing on December 19, 2007. On the date of the hearing, by way of motion for summary decision, the DOC sought to amend the charge to a violation of N.J.S.A. 2C:39-7b(2), which prohibits a person convicted of a disorderly persons offense involving domestic violence from possessing a weapon. The ALJ denied the motion, concluding that

[n]o notice of motion was filed, no brief submitted, and no notice given to [F.B.F.]. The motion was blatantly procedurally deficient. It was not only time barred, but there was in fact no motion, nor any brief, nor any factual contentions that could be refuted by [F.B.F.]. The motion is simply not cognizable.

 

. . . .

 

. . . This argument is being made for the first time approximately ten years after [F.B.F.]'s offense.

 

The DOC then presented two witnesses and F.B.F.'s guilty plea allocution. The ALJ found this evidence was insufficient to establish domestic violence. The ALJ also found F.B.F's guilty plea to a disorderly persons offense constituted conduct unbecoming a public employee warranting a six-month suspension.

F.B.F. did not challenge the ALJ's decision, including the penalty imposed. The Commission, however, rejected the ALJ's decision and affirmed the removal on September 2, 2008. It concluded that N.J.S.A. 2C:39-7b(2) prohibited F.B.F. from carrying a firearm because he was convicted of a disorderly persons offense involving domestic violence. This appeal followed.

On appeal, F.B.F. contends procedural defects in the Commission's decision requires reversal, and the evidence presented to the ALJ failed to establish he committed an act of domestic violence. We agree that procedural defects in the Commission's decision requires reversal, and thus, do not address F.B.F.'s second contention.

Our role in reviewing a final administrative agency decision is limited. In re Taylor, 158 N.J. 644, 656 (1999); Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 587 (1988). We must defer to a final agency decision unless it is arbitrary, capricious, unsupported by substantial credible evidence in the record, or in violation of express or implicit legislative policy. Taylor, supra, 158 N.J. at 656-57. We must, therefore, determine whether the agency's findings could have reasonably "'been reached on sufficient credible evidence present in the record' considering 'the proofs as a whole,' with due regard to the opportunity of the one who heard the witnesses to judge of their credibility." Id. at 656 (quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)). If we find sufficient credible evidence in the record to support the agency's conclusions, then we must affirm even if we would have reached a different result. Clowes, supra, 109 N.J. at 588; Goodman v. London Metals Exch., Inc., 86 N.J. 19, 28 (1981).

If, however, our review of the record satisfies us that the agency's finding is clearly mistaken or erroneous, the decision is not entitled to judicial deference and must be set aside. L.M. v. State, Div. of Med. Assist. & Health Servs., 140 N.J. 480, 490 (1995). We may not simply rubber-stamp an agency's decision. Taylor, supra, 158 N.J. at 657.

"An employee must be served with a Preliminary Notice of Disciplinary Action setting forth the charges and statement of facts supporting the charges (specifications), and afforded the opportunity for a hearing prior to imposition of major discipline . . . . " N.J.A.C. 4A:2-2.5(a).

Properly stated charges are a sine qua non of a valid disciplinary proceeding. It is elementary that an employee cannot legally be tried or found guilty on charges of which he has not been given plain notice by the appointing authority. The de novo hearing on the administrative appeal is limited to the charges made below.

 

[W. New York v. Bock, 38 N.J. 500, 522 (1962).]

 

Moreover, we have held that:

Where an employee who is entitled to notice of "cause" and hearing before discharge is tried on one specific charge, as here, and is found not guilty [of the noticed charge] but solely of other charges, never specified or actually tried before either the original hearer or on appeal to the Commission, the penalty imposed will be set aside.

 

[Orange v. DeStefano, 48 N.J. Super. 407, 419 (App. Div. 1958).]

 

Here, the DOC only charged F.B.F. with conduct unbecoming a public employee and prohibition by federal law from carrying a firearm as a result of his conviction under N.J.S.A. 2C:12-1a(3). The DOC never charged F.B.F. with prohibition under state law from carrying a firearm as a result of his conviction, see N.J.S.A. 2C:39-76(2), and never notified him until the day of the hearing of this charge. Accordingly, the Commission's decision to remove F.B.F. based on N.J.S.A. 2C:39-7b(2) was clearly mistaken and erroneous and must be set aside.

The Commission's decision to remove F.B.F. from his position is reversed, and the six-month suspension the ALJ ordered is affirmed.

1 Effective June 30, 2008, the Commission was reconstituted and assumed the duties of the Department of Personnel and the MSB. N.J.S.A. 11A:11-2b.