IN THE MATTER OF JOSE VALENTIN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5737-11T4

IN THE MATTER OF JOSE

VALENTIN.

_______________________________________________

June 24, 2013

Argued June 11, 2013 Decided

Before Judges Fisher and Grall.

On appeal from the Civil Service Commission,

CSC Docket No. 2011-3896.

Lawrence Y. Bitterman argued the cause for appellant, Jose Valentin.

Brandon Hawkins, Deputy Attorney General, argued the cause for respondents New Jersey Department of Corrections and the Civil Service Commission (John J. Hoffman,Acting Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Mr. Hawkins, on the brief).

PER CURIAM

Jose Valentin, a senior corrections officer employed by the Adult Diagnostic and Treatment Center, appeals the Civil Service Commission's decision to terminate his employment. Because the Commission's findings are based on substantial credible evidence and the discipline imposed was not arbitrary, capricious or unreasonable, we affirm

The ADTC removed Valentin from his position for conduct unbecoming an employee, N.J.A.C. 4A:2-2.3(a)(6), and other sufficient cause, N.J.A.C. 4A:2-2.3(a)(11), based on a December 5, 2010 incident, during which Valentin was accused of interfering with Perth Amboy police officers acting in their official capacity. Specifically, Valentin was accused: of interfering with the officers' attempts to arrest Ana Pagan, a friend of Valentin's; with using his position in an attempt to influence the officers' actions; with physically attempting to restrain the officers while they were arresting Pagan; with continuing to complain of the arrest after it had been effected, causing one of the officers to fear Valentin would assault him and requiring the use of mace to subdue and arrest Valentin; and in refusing to cooperate following his arrest.

The matter was referred to the Office of Administrative Law, and an administrative law judge (ALJ) conducted an evidentiary hearing over the course of two days during the Summer of 2011.

On October 21, 2011, the ALJ issued a written opinion. He determined that appellant engaged in unbecoming conduct but that a 180-day suspension rather than termination was appropriate. Concluding that the ALJ had not provided findings of fact concerning some of Valentin's conduct on December 5, 2010, and was unclear in other respects, the Commission remanded for further findings.

The ALJ rendered another opinion on March 8, 2012. He made additional findings regarding the areas that concerned the Commission and again recommended a 180-day suspension. The Commission's final decision adopted the ALJ's credibility findings but concluded that the testimony found credible by the ALJ revealed that appellant's conduct was more reprehensible than suggested by the ALJ and that termination was warranted.

In this appeal of the final agency decision, appellant argues in a single point that

THE FINAL ADMINISTRATIVE ACTION OF THE CIVIL SERVICE COMMISSION SHOULD BE REVERSED AND THE DECISION OF THE ALJ REINSTATED.

Our standard of review requires that absent a clear showing that the agency's decision is "arbitrary, capricious, or unreasonable, or lacks fair support in the record," an agency's final decision should be upheld "regardless of whether a reviewing court would have reached a different conclusion in the first instance." Circus Liquors Inc. v. Middletown Twp., 199 N.J. 1, 9 (2009). We conclude despite appellant's forceful arguments to the contrary, that the Commission's findings were well-supported by credible testimony, the discipline imposed was a matter that fell within the Commission's expertise, to which we further defer, id. at 10, and the Commission's ultimate determination was not arbitrary, capricious or unreasonable. See Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). Considering the nature of appellant's misconduct that he interfered with the lawful activities of police officers to the point of necessitating his own arrest, which he resisted demonstrates that the sanction of removal was not disproportionate to the offense. See In re Herrmann, 192 N.J. 19, 28-29 (2007) (recognizing that a reviewing court will not intervene with regard to discipline except where "such punishment is so disproportionate to the offense, in light of all the circumstances, as to be shocking to one's sense of fairness"); see also In re Polk, 90 N.J. 550, 578 (1982).

Appellant argues that the Commission ignored the "painstaking" findings of the ALJ. We disagree. It was the Commission that was "painstaking" in its review of the matter. The ALJ in both opinions found credible Officers Enna Cabrera and Brandon Bucior, who were the arresting officers, and Officer David Guzman, who interviewed appellant at the police station after his arrest and that appellant and Pagan were not credible but the ALJ was either not sufficiently specific as to what Officers Cabrera, Bucior and Guzman testified or drew unsupportable conclusions about their testimony that minimized appellant's conduct. The Commission, on the other hand, recognized that the witnesses the ALJ found credible testified that appellant "repeatedly protested and attempted to interfere with Pagan's arrest." And the Commission specifically recognized that these credible witnesses testified that appellant "got in [Cabrera's] path" and told her that he was a "cop" and Cabrera was not going to arrest Pagan. According to these witnesses, appellant repeatedly "interfer[ed]," requested to speak to a superior officer, and threatened that he was "going to have [their] jobs." In addition, after Officer Cabrera restrained Pagan, appellant approached Officer Bucior, got in his face, and caused Officer Bucior to anticipate appellant would strike him. Officer Bucior eventually had to mace the irate appellant and, with the assistance of others, placed appellant under arrest. Officer Guzman, who the ALJ found credible, testified that appellant was "irate," "impaired" and uncooperative. The Commission reasonably concluded that the description of events provided by the witnesses the ALJ found credible demonstrated that appellant's conduct was unbecoming a public employee. The Commission also concluded that appellant used his position to attempt to influence the police officers not to arrest Pagan, contrary to the conclusion drawn by the ALJ. Again, we agree that the Commission's conclusion was amply supported by the evidence that came from the witnesses the ALJ found credible.

We lastly reject the argument that termination was disproportionate or unreasonable. As we have mentioned, appellant attempted to interfere with police officers in the pursuit of their duty to a point necessitating his own arrest, which he resisted. Even though appellant had "a largely unblemished record" over his ten years of employment, his conduct, as the Commission justly concluded, diminishes the public's trust in the integrity of its employees because appellant attempted to use his position as a law enforcement officer in an improper way. As a result, the Commission's termination of appellant's employment was not arbitrary, capricious or unreasonable.

Affirmed.