IN THE MATTER OF JOSEPH GALVEZ

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4006-09T2

IN THE MATTER OF JOSEPH GALVEZ, POLICE OFFICER (S9999H), JERSEY CITY.

________________________________

May 17, 2011

Submitted: May 9, 2011 - Decided:

Before Judges Grall and C.L. Miniman.

On Appeal from the Civil Service Commission, Docket No. 2009-3973.

John T. Coyle, attorney for appellant Joseph Galvez.

William Matsikoudis, Corporation Counsel, attorney for respondent City of Jersey City (Terri Keller, Assistant Corporation Counsel, on the brief).

Paula T. Dow, Attorney General, attorney for respondent New Jersey Civil Service Commission (Todd A. Wigder, Deputy Attorney General, on the statement in lieu of brief).

PER CURIAM

Appellant Joseph Galvez seeks our review of Final Administrative Action of respondent Civil Service Commission (the Commission) affirming the decision of the former Division of Local Human Resource Management (LHRM) finding that respondent City of Jersey City (the City) had a sufficient basis to remove Galvez's name from the list of eligible candidates for the position of police officer on the basis of his unsatisfactory driving record. We affirm.

Galvez took an open Competitive Examination for Police Officer (S9999H), achieving a passing score. He was ranked on the subsequent eligible list, and his name was certified to the City on August 26, 2008. However, in disposing of the certification, the City requested the removal of Galvez's name on the basis of an unsatisfactory driving record. The City asserted that Galvez had been involved in motor vehicle accidents on September 5, 2005, April 26 and December 2, 2006, and July 3, 2008. Additionally, the City asserted that Galvez's driving record included motor vehicle violations for failure to obey a signal on June 21, 2006, and unsafe operation of a motor vehicle on April 24, 2007.

In the September 5, 2005, accident, Galvez struck another vehicle from behind when he failed to stop for the accident immediately ahead of him. On April 26, 2006, Galvez ran into the rear end of a vehicle stopped for a traffic light, forcing it into the rear end of the vehicle in front of it. Then, on December 2, 2006, Galvez was involved in an intersection accident when another driver crossed through the intersection from Galvez's left. Galvez claimed at the time to have the green light. On July 3, 2008, Galvez and a truck were involved in an accident, and Galvez then struck another vehicle from behind that had been stopped for a red light. The cause of the initial impact was disputed by the truck driver and Galvez. Galvez's insurance carrier concluded that he was not at fault for this accident. He was, however, clearly at fault for at least two of the other accidents.

In his initial appeal to the LHRM, Galvez asserted, among other things, that the City failed to make a determination of fault with respect to the accidents and did not consider whether the moving violations reflected "isolated incidents and dispositions of expedience as opposed to a pattern of unsafe driving." He argued that the Legislature did not mention motor vehicle accidents or moving violations as grounds to remove an applicant from an eligible list. However, the LHRM decided that the City had presented a sufficient basis to remove his name from the eligible list.

Galvez then appealed to the Commission. He asserted that the City's conclusion that he was unfit to serve as a police officer on the basis of his driving record was arbitrary, unreasonable, and capricious. He again argued that he bore little or no fault for the accidents and that the matters were insufficient to conclude he was unfit to be a police officer. He alleged that he disposed of the two moving violations "out of expedience" and that the accidents and the two violations did not exhibit a pattern of unsafe driving. He further asserted that the accidents and the traffic violations did not demonstrate a tendency to defy law enforcement, repeatedly violate traffic laws, or fail to take responsibility for his actions. He suggested that the City had a discriminatory motive for removing his name from the eligible list due to a health issue that was not disabling.

The Commission concluded that N.J.A.C. 4A:4-4.7(a)(1), in conjunction with N.J.A.C. 4A:4-6.1(a)(9), allowed the removal of an eligible name "for other sufficient reasons." Those reasons included a consideration of a candidate's background and a recognition of the nature of the position at issue. Additionally, the Commission stated that it "has the authority to remove candidates from lists for law enforcement titles based on their driving records since certain motor vehicle infractions reflect a disregard for the law and are incompatible with the duties of a law enforcement officer," citing three of our unpublished decisions. The Commission noted that Galvez bore the burden of proof to show by a preponderance of the evidence that the City's decision to remove his name was in error.

The Commission found no indication in the record that the City relied on information respecting Galvez's health when it requested removal of his name from the eligible list. Instead, the record demonstrated that the City conducted a background check and relied on Galvez's motor vehicle record. Thus, Galvez did not meet his burden of proof on his claim of discriminatory animus.

The Commission framed the issue before it as "whether [Galvez's] driving record indicates an unsuitability to hold such a law enforcement position." Setting aside the issue of fault, the Commission focused on the fact that Galvez had four motor vehicle accidents and two moving violations over a three-year period "in close proximity to the closing date of the examination." The Commission concluded:

In this regard, it is recognized that a municipal Police Officer is a law enforcement employee who must enforce and promote adherence to the law. Municipal Police Officers hold highly visible and sensitive positions within the community and the standard for an applicant includes good character and an image of utmost confidence and trust. It must be recognized that a municipal Police Officer is a special kind of public employee:

His primary duty is to enforce and uphold the law. He carries a service revolver on his person and is constantly called upon to exercise tact, restraint and good judgment in his relationship with the public. He represents law and order to the citizenry and must present an image of personal integrity and dependability in order to have the respect of the public . . . [. Twp. of Moorestown v. Armstrong, 89 N.J. Super. 560, 566 (App. Div. 1965), certif. denied, 47 N.J. 80 (1966); see also In re Phillips, 117 N.J. 567 (1990).]

[Galvez's] unsatisfactory driving record is indicative of a disregard for the law and evidences poor judgment and is clearly inimical to the position of Police Officer. One final comment is warranted, even assuming, arguendo, that [Galvez's] driving record was insufficient to remove him from the eligible list, it is clearly sufficient to bypass his name for appointment as proper and safe operation of a motor vehicle is a necessary duty of a Police Officer.

Thus, the Commission found that the City demonstrated that Galvez's driving record constituted sufficient cause to remove his name from the eligible list, and the appeal was denied. This appeal followed.

Galvez contends that the Commission's finding of an "unsatisfactory" driving record was erroneous because "it was based on insufficient and unsubstantial credible evidence" and that, if we do not outright reverse the Commission, we should remand for additional findings of fact.

The City responds that the final agency action must be affirmed because it was not arbitrary, capricious, or unreasonable and was supported by the record. Further, it urges that the record is complete and no further fact-findings are required.

The Commission urges that "there can be no real question that the City had sufficient cause to remove Galvez's name from the eligible list" because he had multiple traffic violations. It further urges that a police officer is "a special kind of public employee" charged with the duty to "'enforce and uphold the law'" and to "'exercise tact, restraint and good judgment.'" It asserts that Galvez's driving record "clearly reflects his inability to obey the rules he would be responsible to uphold as a police officer."

The judicial role in reviewing decisions of administrative agencies is restricted to the following four inquiries:

(1) whether the agency's decision offends the State or Federal Constitution; (2) whether the agency's action violates express or implied legislative policies; (3) whether the record contains substantial evidence to support the findings on which the agency based its action; and (4) whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors.

[George Harms Constr. Co. v. N.J. Tpk. Auth., 137 N.J. 8, 27 (1994).]

Accordingly, "[o]ur function is to determine whether the administrative action was arbitrary, capricious or unreasonable." Burris v. Police Dep't, W. Orange, 338 N.J. Super. 493, 496 (App. Div. 2001). The precise issue is whether the findings of the agency could have been reached on the credible evidence in the record, "considering 'the proofs as a whole.'" Close v. Kordulak Bros., 44 N.J. 589, 599 (1965) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)).

The burden of demonstrating that the agency's action was arbitrary, capricious, or unreasonable rests upon the person challenging the administrative action. McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 563 (App. Div. 2002); Barone v. Dep't of Human Servs., 210 N.J. Super. 276, 285 (App. Div. 1986), aff'd, 107 N.J. 355 (1987).

After carefully reviewing the record in light of the written arguments advanced by the parties, we conclude that the issues presented by Galvez are without sufficient merit to warrant discussion in this opinion, Rule 2:11-3(e)(1)(D), (E), and we affirm substantially for the reasons expressed by the Commission in its written opinion issued on March 25, 2010. The findings and conclusions of the Commission are supported by "'sufficient credible evidence present in the record.'" Close, supra, 44 N.J. at 599. Suffice it to say that Galvez's driving record is utterly inconsistent with the behavior expected of a police officer, and the fact of four accidents and two moving violations over the three-year period ending with the Civil Service examination is a fair predictor of future behavior and exhibits a disregard for the law Galvez would be charged with enforcing.

Affirmed.