IN THE MATTER OF EDDIE GONZALEZ

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

IN THE MATTER OF EDDIE GONZALEZ,

CITY OF NEWARK

November 24, 2015

Submitted October 7, 2015 Decided

Before Judges Alvarez and Ostrer.

On appeal from the Civil Service Commission, Docket No. 2008-2804.

Eddie Gonzalez, appellant pro se.

John J. Hoffman, Acting Attorney General, attorney for respondent Civil Service Commission (Todd A. Wigder, Deputy Attorney General, on the statement in lieu of brief).

Karen Brown, Corporation Counsel, attorney for respondent City of Newark (Michael A. Oppici, Assistant Corporation Counsel, on the brief).

PER CURIAM

Eddie Gonzalez, a former Newark police officer, appeals from a December 4, 2013 final decision of the Civil Service Commission (CSC). The CSC adopted an Administrative Law Judge's (ALJ) factual findings regarding a final notice of disciplinary action (FNDA), but modified the sanction from a six-month suspension to termination of employment. Gonzalez had been charged by the Newark Police Department with, among other things, conduct unbecoming a police officer, in violation of Newark Police Department Rules and Regulations, Chapter 5:1.1, and conduct unbecoming a public employee, in violation of the Department's Rules and Regulations, Chapter 3:1-1, and N.J.A.C. 4A:2-2.3(a)(6). The CSC concluded that the initial decision of the appointing authority in removing Gonzalez was justified, reimposed it, and dismissed Gonzalez's appeal. We affirm.

The tortured procedural history regarding the underlying harassment conviction, N.J.S.A. 2C:33-4(b), can be found in our earlier decision affirming the Law Division's denial of Gonzalez's petition for post-conviction relief. See State v. Gonzalez, No. A-1597-09 (May 10, 2012) (slip op. at 2-3). Gonzalez was represented during the municipal court trial that resulted in the conviction. See id. at 10-11. We have previously detailed the factual circumstances developed in those proceedings. Id. at 3-4.

The ALJ found, as a result of her review of the municipal trial transcript, that on August 28, 2002, while out of uniform and off-duty, Gonzalez grabbed and kissed his fourteen-year-old neighbor on the mouth. The child "felt shocked and sickened by his behavior." On September 4, a few days after the incident, the child's father filed the harassment complaint against Gonzalez which ultimately resulted in his conviction.

Some months later, Gonzalez issued and mailed twelve motor vehicle summonses to the child's father, using a summons book that belonged to another officer. For that conduct, Gonzalez received a six-month suspension after a disciplinary hearing. We affirmed. See In re Gonzalez, No. A-0644-07 (July 31, 2009) (slip op. at 2).

The harassment trial, through procedural missteps, was not conducted until years after the event. Gonzalez continued to work while the matter was pending. In fact, he did not even serve the full six-month suspension for the ticket-writing. In reaching her findings of fact, the ALJ relied upon the prior opinions as to the ticket-writing and harassment, in addition to the actual municipal court transcripts and the municipal court judge's decision itself. Both Gonzalez and an internal affairs officer who investigated the conduct testified at the hearing. The former only testified regarding commendations he received while employed. The ALJ admitted the municipal court transcript into evidence based on the theory of collateral estoppel.

Gonzalez argued to the CSC, as he does on appeal, that the ALJ should not have reviewed and relied upon the municipal court transcript in her decision, and that its admission violated his due process rights. Additionally, Gonzalez argued that the standards for admission of the transcripts under the theory of collateral estoppel were not met in any event and that it was unfair for the appointing authority to benefit from its use as no representative actually attended the municipal trial.

Gonzalez also contended, as he does on this appeal, that termination from employment violated the doctrine of progressive discipline. Moreover, he contends that reference to the earlier disciplinary action and ensuing six-month suspension against him was improper because he could not have, given progressive discipline principles, learned from the sanction since it was imposed after the alleged harassment but before the hearing on that conduct.

The CSC decided that once Gonzalez was convicted, he was effectively "considered to have committed each element constituting the offense[.]" It did not find the ALJ's decision to admit the municipal trial transcripts objectionable.

The CSC disagreed with the ALJ as to the sanction, however, because "[Gonzalez's] prior disciplinary history clearly merits the penalty of removal for the current charges[,]" and opined that the concept of progressive discipline was not "'a fixed and immutable rule to be followed without question.'" (citing to In re Carter, 191 N.J. 474 (2007). Furthermore, the CSC, citing to our decision in State v. Gonzalez, supra, (slip op. at 3), viewed the ALJ's recommended six-month suspension as inadequate given "the seriousness of the appellant's conduct. The appellant grabbed a fourteen-year-old girl 'by the shoulders, pulled her up so she was on her toes, and forced his tongue into her mouth.'"

Additionally, the CSC placed evaluation of the conduct within the context of the higher standard to which police officers are held

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.

In reviewing final administrative agency decisions, our role is limited. In re Stallworth, 208 N.J. 192, 194 (2011). "In order to reverse an agency's judgment, an appellate court must find the agency's decision to be 'arbitrary, capricious, or unreasonable, or [] not supported by substantial credible evidence in the record as a whole.'" Ibid. (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980)) (alteration in original). In determining whether agency action is "arbitrary, capricious, or unreasonable," we ask if it "violates express or implied legislative policies "if the record contains substantial evidence" supporting the "findings on which the agency based its action[,]" and "whether in applying the legislative policies to the facts, the agency . . . erred in reaching a conclusion that could not" have been reasonably reached. Ibid. (quoting In re Carter, supra, 191 N.J. at 483).

That same deferential standard applies not only to whether a violation warranting discipline has been proven, but also whether the disciplinary sanctions as imposed are appropriate. Id. at 195. We do not disturb a public employee's disciplinary sanction, unless it is "'so utterly disproportionate to the offense' as to amount to a clear abuse of discretion." City of Newark v. Massey, 93 N.J. Super. 317, 324-25 (App. Div. 1967) (quoting Newark v. Civil Serv. Comm'n, 115 N.J.L. 26, 30-31 (Sup. Ct. 1935)). "Accordingly, when reviewing administrative sanctions, appellate courts should consider whether the punishment is so disproportionate to the offense, in light of all the circumstances, as to be shocking to one's sense of fairness." Stallworth, supra, 208 N.J. at 195 (quoting In re Carter, supra, 191 N.J. at 484). The CSC has the authority to employ a variety of disciplinary sanctions, including the removal of an employee. See N.J.S.A. 11A:2-6(a).

The CSC's review of an ALJ's decision is de novo. See In re Parlo, 192 N.J. Super. 247, 248 (App. Div. 1983). The CSC is authorized to reject or modify an administrative law judge's legal conclusions so long as it sets forth its reasons for doing so. N.J.S.A. 52:14B-10(c); N.J.A.C. 1:1-18.6(b). In this case, it gave a clear if limited explanation for its concurrence with the ALJ's admission, based on collateral estoppel, of the municipal court transcripts.

Collateral estoppel prevents relitigation when

(1) the issue to be precluded is identical to the issue decided in the prior proceeding; (2) the issue was actually litigated in the prior proceeding; (3) the court in the prior proceeding issued a final judgment on the merits; (4) the determination of the issue was essential to the prior judgment; and (5) the party against whom the doctrine is asserted was a party to . . . the earlier proceeding.

[Hennessey v. Winslow Twp., 183 N.J. 593, 599 (2005) (quoting In re Estate of Dawson, 136 N.J. 1, 20-21 (1994)).]

In administrative proceedings, "the parties shall not be bound by rules of evidence whether statutory, common law, or adopted formally by the rules of court. All relevant evidence is admissible . . . ." N.J.S.A. 52:14B-10(a)(1). Nonetheless, as we have said, the ALJ relied upon the doctrine of collateral estoppel to admit the transcripts.

At an administrative proceeding, the standard of proof is by the preponderance of the evidence. Appeal of Darcy, 114 N.J. Super. 454, 458 (App. Div. 1971). In contrast, at the municipal hearing, the standard of proof was beyond a reasonable doubt. See ibid.; see also State v. Cummings, 184 N.J. 84, 92 (2005).

When we consider the propriety of reliance on the doctrine of collateral estoppel to admit the transcripts, it is clear that: the issues were identical in the municipal court and administrative proceeding, the harassment charge was tried employing a higher standard of proof, a final judgment on the merits was rendered by the municipal court, the determination as to whether Gonzalez actually engaged in the alleged conduct was as essential to the conviction as it was to the disciplinary appeal, and Gonzalez was a represented participant in the earlier proceeding. Thus we find that Gonzalez had a fair and full opportunity to participate in the earlier action, and his objection has no merit.

Gonzalez's argument that the CSC's reinstatement of termination from employment was disproportionate to the conduct, because it ignored the concept of progressive discipline, also lacks merit. Application of the doctrine in this case was not necessary because of the peculiar chronology, which actually worked to Gonzalez's benefit in the short run. Because there was such a lengthy delay in the trial of the harassment complaint, he continued to work as a police officer. Although it is literally true that chronologically the ticket-writing for which Gonzalez was first sanctioned occurred after the harassment, that fact alone is not dispositive. Progressive discipline, as the CSC noted, is not a straightjacket where an employee's conduct is "unbecoming to the employee's position or renders the employee unsuitable for continuation in the position . . . ." Stallworth, supra, 208 N.J. at 197 (quoting In re Herrmann, 192 N.J. 19, 33 (2007)).

There is no question that police officers are held to a higher standard of conduct than many other public employees. As the Supreme Court has previously stated, "[i]n matters involving discipline of police . . . officers, public safety concerns may also bear upon the propriety of the dismissal sanction." In re Carter, supra, 191 N.J. at 485 (citations omitted). "[A] police officer is a special kind of public employee. His primary duty is to enforce and uphold the law . . . . 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." Id. at 486 (quoting Twp. of Moorestown v. Armstrong, 89 N.J. Super. 560, 566 (App. Div. 1965)). An isolated act of serious misconduct may justify termination. Stallworth, supra, 208 N.J. at 196-97 (noting that "progressive discipline has been bypassed when an employee engages in severe misconduct, especially when the employee's position involves public safety and the misconduct causes risk of harm to persons or property").

In In re Carter, for example, the Court affirmed the termination of a police officer who was found sleeping in his patrol car on three consecutive nights, once in excess of two hours. Supra, 191 N.J. at 479. In that case, the court held that the conduct was serious enough to warrant dismissal on its own. Id. at 486. The key question to be answered in each case is whether the police officer's conduct was so egregious as to warrant termination. In making that determination, we do not substitute our view for that of the CSC.

However, even if progressive discipline principles are considered, we perceive no error in the CSC's reliance upon the earlier ticket-writing disciplinary proceeding in reaching its decision. Progressive discipline is a flexible concept which includes the totality of the disciplinary record. Stallworth, supra, 208 N.J. at 199.

In this case, progressive discipline principles mitigating the sanction were appropriately sidelined by the CSC. Gonzalez violated standards of personal integrity and good judgment not only by forcing his unwanted romantic attentions upon a fourteen-year-old neighbor, but also by writing twelve unwarranted summonses on forms taken from another officer to punish the child's father for taking action against him.

Applying the relevant legal principles to the facts as found by the ALJ and adopted by the CSC, we conclude that the CSC appropriately considered not only the proofs and nature of the violations, but also the propriety of the proposed sanction. The CSC decision was not arbitrary, capricious, unreasonable, or unsupported by substantial credible evidence in the record. See Saccone v. Bd. of Trs. of Police & Firemen's Ret. Sys., 219 N.J. 369, 380 (2014).

Affirmed.