IN THE MATTER OF DELORIA MARTIN BURLINGTON COUNTY JAIL

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4381-09T3

IN THE MATTER OF DELORIA MARTIN,

BURLINGTON COUNTY JAIL.

SubmittedMay 23, 2011 Decided July 1, 2011

Before Judges Sabatino and Alvarez.

On appeal from the New Jersey Civil Service Commission, Docket No. 2009-3054.

Law Offices of Mark W. Catanzaro, attorneys for appellant Deloria Martin (Daniel M. Rosenberg, 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).

Capehart & Scatchard, P.A., attorneys for respondent Burlington County Jail (Robert J. Hagerty, of counsel and on the brief; Laurel B. Peltzman, on the brief).

PER CURIAM

Deloria Martin, hired as a Burlington County corrections officer in 1995, was terminated on February 13, 2009 for failure to meet the county's residency requirement. Martin appealed the decision to the Civil Service Commission, and the matter was transmitted to the Office of Administrative Law for a hearing. The Administrative Law Judge (ALJ) issued an initial decision affirming the termination, which was adopted by the Civil Service Commission on April 30, 2010. This appeal followed. We affirm.

In addition to stipulating as to Martin's employment start and termination dates, the parties agreed that, when hired, Martin resided in Winslow Township, Camden County. Thus, in order to comply with Burlington County's residency policy for all its employees, which had been in place long before Martin's hire, she rented a room in Browns Mills until April 2008. In 2005, Martin sold her Winslow Township home and purchased a larger residence in Sicklerville, also in Camden County, as she then anticipated having family relocate from Florida to New Jersey to reside with her. For financial reasons, however, Martin ended her Burlington County room rental in April 2008. As a result, her only home was in Camden County. That same year, Martin served a sixty-five-day suspension for unrelated reasons between March 23 and September 27.

On April 7, 2008, Martin was advised that if she did not obtain a bona fide residence in Burlington County, disciplinary action would ensue. On November 11, 2008, Martin requested an extension of time and, on December 1, 2008, supplied her employer with documentation that she had again rented a room in Burlington County commencing as of February 1, 2009. She was nonetheless terminated on February 14, 2009. Martin now asserts the Civil Service Commission's decision was arbitrary, capricious, unreasonable, and not supported by the credible evidence in the record.

Judicial review of an agency's final decision is limited. We ask only the following:

(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) (citations omitted).]

Therefore, "[o]ur function is to determine whether the administrative action was arbitrary, capricious or unreasonable." Burris v. Police Dep't, Twp. of W. Orange, 338 N.J. Super. 493, 496 (App. Div. 2001) (citing Henry v. Rahway State Prison, 81 N.J. 571, 580 (1980)); see also Aqua Beach Condo. Ass'n v. Dep't of Cmty. Affairs, 186 N.J. 5, 16 (2006). "The burden of demonstrating that the agency's action was arbitrary, capricious or unreasonable rests upon the [party] challenging the administrative action." In re Arenas, 385 N.J. Super. 440, 443-44 (App. Div.), certif. denied, 188 N.J. 219 (2006) (citing 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)).

We are not bound by an agency's decision on a question of law. Thurber v. City of Burlington, 191 N.J. 487, 502 (2007). We accord substantial deference to an agency's interpretation of statutes it was created to enforce, however, and only reverse where the decision is "plainly unreasonable" or contrary to law. Stevens v. Bd. of Trs., 294 N.J. Super. 643, 652 (App. Div. 1996).

As a threshold matter, we note that in 1981, Burlington County adopted a resolution providing that the failure of any county employee to maintain a bona fide residence in-county was a basis for removal from employment for cause. Burlington County, N.J., Resolution 383 (Sept. 9, 1981).1 Martin contends that, if her employer was satisfied with her prior rental of a room as a bona fide residence, it should have been satisfied with her resumption of the arrangement. She further urges that, because of her family needs, some accommodation should be made for the several-month period in which she was not a resident of Burlington County at all. Because the county did not allow her a grace period, Martin further contends, the decision was arbitrary and capricious and not supported by substantial, credible evidence in the record. Finally, Martin urges the ALJ erred when she concluded Martin's relocation to Sicklerville established that she was not likely to remain in Burlington County within the meaning of N.J.A.C. 4A:4-2.11(b)(4).

Given Martin's absence from Burlington County for ten months after being specifically advised that she must maintain residency in the county, the agency's decision to affirm the termination is eminently reasonable. As the ALJ said, Martin's absence over this period of time merely "underline[d] the primacy of the Sicklerville residence." The county gratuitously extended an initial six months for Martin to return to Burlington County but, after that term expired, she made no effort to comply with her employer's policy until the new deadline had come and gone. Even after receiving the preliminary notice of discipline on November 7, 2008, Martin made no immediate effort to sell her house in Camden County, or even to immediately re-rent in Burlington County. The ALJ drew unassailable conclusions from stipulations of fact and Martin's own words and conduct. The county clearly met its burden of proof by a preponderance of the evidence.

The record more than adequately supports the agency's action, which followed the law and violated no express or implied legislative policy. In re Herrmann, 192 N.J. 19, 27-28 (2007). The county established by a preponderance of the evidence that, subsequent to her relocation to Sicklerville in April 2008, Martin was not a resident and, even when she arranged for a room rental in Burlington, was not likely to remain. Although the record does suggest that Martin faced some difficult personal circumstances, her employer treated her fairly. The county did not act arbitrarily or capriciously in enforcing its long-standing residency policy after giving Martin a reasonable time to comply, and the Commission likewise was not arbitrary or capricious in upholding her discharge.

Affirmed.

1 Martin does not contest the validity of that residency requirement.