IN THE MATTER OF WILLIE JETTI ESSEX COUNTY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2709-11T2

IN THE MATTER OF WILLIE JETTI,

ESSEX COUNTY.

_________________________________

October 28, 2013

Submitted October 8, 2013 Decided

Before Judges Fisher, Koblitz and O'Connor.

On appeal from New Jersey Civil Service Commission, Docket No. 2012-200.

Darryl M. Saunders, attorney for appellant Willie Jetti.

James R. Paganelli, Essex County Counsel, attorney for respondent County of Essex (Willie L. Parker, Assistant County Counsel, on the brief).

Anna P. Pereira, Corporation Counsel, attorney for respondent City of Newark (Meredith A. Accoo, Assistant Corporation Counsel, on the statement in lieu of brief).

John J. Hoffman, Acting 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

Willie Jetti challenges a December 22, 2011 final decision of the New Jersey Civil Service Commission (Commission) denying reconsideration of its June 15, 2011 final decision enforcing a settlement with Essex County following Jetti's appeal of his termination from his job as a corrections officer. We affirm.

Jetti was removed on charges from his position as a Newark Fire Fighter effective June 1, 2009 and from his position as an Essex County Corrections Officer effective May 26, 2010.1 Jetti appealed and the matters were transmitted to an Administrative Law Judge (ALJ). On October 5, 2010, the terms of a settlement were placed on the record before the ALJ. Newark presented a written stipulation of settlement and general release, agreeing that the charges against Jetti would be withdrawn in exchange for Jetti's resignation in good standing. Jetti signed the stipulation before the ALJ with his counsel present. He agreed to a similar settlement with Essex County, which was to prepare a written settlement agreement within two weeks. As explained by Jetti's counsel on the record, the Essex agreement included the terms that the county "will not interfere with [Jetti's] pension process or application" and "will not do anything to affect [his] workers compensation claim."

In response to the ALJ's questioning, Jetti acknowledged that he read the Newark agreement, discussed it with counsel, understood it and accepted it. The ALJ asked Jetti questions about both agreements on the record. Jetti indicated he understood that these agreements resolved both matters completely, that he was not pressured in any way to enter into the agreements, was satisfied with his attorney and that the medication he was taking did not impair his understanding of the agreements or his ability to enter into the agreements. After answering the ALJ's questions, Jetti swore under oath that his answers had been truthful. His lawyer indicated that Jetti would like to see the county agreement in one rather than two weeks.

Jetti refused to sign the Essex County agreement and claimed that he could not remember the October 5, 2010 proceedings due to "injury-induced memory issues" and because he was heavily medicated at the time. An enforcement motion was filed and the ALJ found that Jetti voluntarily agreed to settle both matters. Jetti appealed this determination to the Commission, which adopted the ALJ's recommendation.

Three weeks after the final decision, Jetti obtained a psychiatric report, which determined that Jetti was totally disabled due to a traumatic brain injury suffered on March 9, 2009 when he was attacked by jail inmates. The doctor opined that Jetti suffers from post-traumatic stress disorder as well as other psychiatric illnesses. The doctor found "typically to a brain concussion the patien[t] shows impairment of attention, concentration and working memory as well as short te[r]m memory, and at the same time a preserved conceptual understanding and ability to use judgment and categorical thinking." Jetti submitted this report in support of his application to reconsider the enforcement of the county agreement. He acknowledged that he voluntarily signed the agreement with Newark and therefore did not seek reconsideration of the decision upholding that settlement.

In the decision denying reconsideration, the Commission noted that Jetti's psychiatric report did not evaluate Jetti's competency on October 5, 2010 when he entered into the settlement with Essex County. The Commission noted that it found no "clear material error" nor "additional information not presented at the original proceeding which would change the outcome of the case and [good] reasons that such evidence was not presented at the original proceeding" as required for reconsideration pursuant to N.J.A.C. 4A:2-1.6(b).

"The scope of appellate review of a final agency decision is limited." In re Carter, 191 N.J. 474, 482 (2007) (citing Aqua Beach Condo. Ass'n v. Dep't of Cmty. Affairs, 186 N.J.5, 15-16 (2006)). We may not reverse an agency's decision "'in the absence of a showing that it was arbitrary, capricious or unreasonable.'" Ibid.(quoting Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963)).

Our review is limited to determining: 1) whether the agency's decision violates express or implied legislative policies; 2) whether there is substantial credible evidence in the record to support the findings on which the agency's decision is based; and 3) "'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.'" Carter, supra, 191 N.J. at 842-83 (quoting Mazza v. Bd. of Trustees, 143 N.J. 22, 25 (1995)). Furthermore, when reviewing agency actions, we "'must defer to an agency's expertise and superior knowledge of a particular field.'" Carter, supra, 191 N.J. at 483 (quoting Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992)).

Jetti's argument that the Commission's decision not to reconsider its prior decision was arbitrary, capricious or unreasonable is without sufficient merit to require discussion in a written opinion. R. 2:11-3(e)(1)(E).2

A

1 The June 5, 2011 final decision states, "The appointing authorities asserted that the appellant called out sick on numerous occasions to work for the other agency, worked at both agencies on the same day on at least five occasions which resulted in the appellant working over 24 hours, and violated policies and procedures."

2 Although not arguing that we should reverse on this basis, Jetti mentions in his brief that he is entitled to a period of review after a formal agreement to waive his right to sue pursuant to Title VII. See 29 U.S.C.A. 626 (f)(1)(F) and (G). His counsel indicated on the record when he entered into the agreements that Jetti had been provided such time. To the extent that Jetti argues that he is entitled to a period of review under federal law that was not provided to him, this issue was not raised in the administrative proceeding and will not be considered by us. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) (an argument not presented in the trial forum is not cognizable on appeal).