TOWNSHIP OF EDISON v. BOARD OF REVIEW DEPARTMENT OF LABOR

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

TOWNSHIP OF EDISON,

Appellant,

v.

BOARD OF REVIEW, DEPARTMENT

OF LABOR, and WILLIAM H. GESELL,

Respondents.

___________________________________

July 21, 2016

Submitted April 13, 2016 Decided

Before Judges Fuentes and Koblitz.

On appeal from the Board of Review, Department of Labor, Docket No. 00016384.

Roth D'Aquanni, LLC, attorneys for appellant (Rachel M. Caruso, of counsel and on the brief; Heather J. Knipper, on the brief).

Robert Lougy, Acting Attorney General, attorney for respondent Board of Review (Melissa Dutton Schaffer, Assistant Attorney General, of counsel; Robert M. Strang, Deputy Attorney General, on the brief).

PER CURIAM

The Township of Edison (Township) appeals the final decision of the Board of Review finding claimant William H. Gesell eligible to receive unemployment compensation benefits. We affirm.

Gesell was first employed as a police officer for the Township on September 8, 1992. Gesell's career as a Township police officer spanned twenty-two years, during which time Gesell rose to the rank of Acting Lieutenant. On March 22, 2014, the Middlesex County Prosecutor's Office arrested Gesell and charged him with unlawful access to a law enforcement database for the purpose of obtaining information to retaliate against a North Brunswick police officer, a third degree offense under N.J.S.A. 2C:20-25(a), and conspiring with two other Township police officers to retaliate against the same North Brunswick police officer, a fourth degree offense under N.J.S.A. 2C:5-2(a), N.J.S.A. 2C:27-5.

On March 31, 2014, Police Chief Thomas Bryan sent a letter to Gesell suspending him from the Township's Police Department without pay based on his arrest and pending charges. On April 21, 2014, the Deputy Director of the Division of Unemployment Disability Insurance denied Gesell's application for unemployment compensation benefits, finding him ineligible for benefits because he was unavailable for work commencing on March 30, 2014. Gesell appealed the decision to the Appeal Tribunal.

A Claims Examiner conducted a telephonic evidentiary hearing on behalf of the Appeal Tribunal on May 30, 2014. At that time, Gesell had not been indicted.1 Gesell testified he was released on his own recognizance and was actively looking for work in construction and private security work, as long as it did not require him to carry a firearm. The Township has not prohibited Gesell from seeking employment in the private sector.

Gesell testified before the Appeal Tribunal with respect to the underlying facts alleged by the State in support of the criminal charges against him.

EXAMINER: . . . was the reason [the Township's Chief of Police] gave you for the suspension?

CLAIMANT: Because our charges came from the prosecutor's office.

EXAMINER: And you were charged . . . with accessing the State Police [database]?

CLAIMANT: Yes ma'am.

. . . .

EXAMINER: And [did] you access it?

CLAIMANT: I accessed it in legal legitimate lawful purpose but the prosecutor's office doesn't agree with me. And that was in March 12th approximately 2012.

EXAMINER: And did you plan to retaliate against anyone?

CLAIMANT: No I did not. But I've been charged for that also. That same date approximately March 12th 2012.

. . . .

EXAMINER: So . . . just back to accessing the State Police [database] are you allowed to access this as a Policeman?

CLAIMANT: Yes I am.

EXAMINER: And are there any regulations that limit the way in which you're allowed to access that?

CLAIMANT: No I just have to have [a] legitimate lawful purpose at the time.

EXAMINER: And you had a legitimate purpose?

CLAIMANT: Yes however 18[] months later when I was questioned I couldn't remember the specific reason which I don't think anyone could [a] year and [a] half after they ran a person's plate. And we're not required to keep notes to why we ran them.2

The Township, as the employer opposing Gesell's application to receive unemployment compensation benefits, argued that the pending criminal charges were legally sufficient to disqualify him from receiving benefits based on gross misconduct pursuant to N.J.S.A. 43:21-5(b). In a decision mailed to the parties on June 2, 2014, the Appeal Tribunal disagreed with the Township's legal position and found Gesell eligible to receive benefits. The Tribunal gave the following explanation for its determination

The employer contended the claimant was suspended without pay for gross misconduct connected with the work. Although the claimant admitted he utilized a state police database to check the license plate number of a policeman from a different town, he does not remember why he did. Moreover, the claimant provided credible testimony that the township police officers are not required to log the reason for utilizing the database. Although the employer provided warrants for the claimant, no evidence of utilizing the database unlawfully or conspiring to retaliate against a police officer has been provided by the employer. As there is no evidence that the claimant violated N.J.S.A. 2C:20 25A or N.J.S.A. 2C:5-2A1, there is no evidence of gross misconduct. Moreover, there is no evidence that the claimant violated the employer's regulations or policies; therefore, he was not suspended for misconduct connected with the work.

On Appeal to the Board of Review, the Township again argued that

"[t]he very existence of this charge evidences that Claimant's actions were a willful and deliberate disregard of the implicit standard of good behavior which devolves upon police officers as articulated in Hartman v. Ridgewood, 258 N.J. 32, 39-40 (1992); In Re Tuch, 159 N.J. Super. 219 (App. Div. 1978); and City of Asbury Park v. Dep't of Civil Service, 17 N.J. 419, 429 (1955)."3

Based on the record developed by the parties, the Board agreed with the decision reached by the Appeal Tribunal. However, the Board left open the possibility of revising its decision, noting: "interested parties may submit a written request to the Board of Review to consider reopening this case at the conclusion of any pending criminal or other related legal proceeding."

The Township now appeals to this court, again arguing that the mere production of the two arrest warrants issued against Gesell provided the Board with sufficient evidence to conclude Gesell's alleged actions gave rise to his suspension. We are deeply troubled that a municipality in this State would advance such a fundamentally profound misstatement of law. It has been long settled as a rudimentary principle of criminal law, that a criminal complaint executed by a complaining witness or an indictment returned by a grand jury does not have any probative value to determine whether the person so charged is actually guilty of any offense. State v. D'Orio, 136 N.J.L. 204, 207 (E. & A. 1947); State v. Cutrone, 8 N.J. Super. 106, 111 (App. Div. 1950). Even arrest warrants issued by a neutral magistrate upon a finding of probable cause are equally devoid of evidential value. All that is required to find probable cause is "'more than a mere suspicion of guilt' but less evidence than is needed to convict at trial." State v. Brown, 205 N.J. 133, 144 (2011) (quoting State v. Basil, 202 N.J. 570, 585 (2010)).

Under N.J.S.A. 43:21-5(b), a claimant is disqualified to receive unemployment compensation benefits based on "gross misconduct connected with the work because of the commission of an act punishable as a crime of the first, second, third or fourth degree under the 'New Jersey Code of Criminal Justice.'" (Emphasis added). The Township nevertheless argues that pursuant to N.J.A.C. 12:17-10.1(f)(1), an employer is not required to prove the employee has been convicted of the crime to establish disqualification. The Township's reliance on this regulation is misplaced. It provides

To sustain disqualification under this section, the burden of proof is on the employer to show through written documentation that the employee's actions constitute misconduct. However, in the case of gross misconduct, the following apply

1. Where an employer provides sufficient evidence to establish that a claimant was discharged for gross misconduct connected with the work, prosecution or conviction shall not be required to sustain that the claimant has engaged in gross misconduct.

[N.J.A.C. 12:17-10.1(f)(1) (emphasis added).]

The burden of proof in proceedings before an administrative agency is to "establish the truth of the charges by a preponderance of the believable evidence and not to prove guilt beyond a reasonable doubt." Atkinson v. Parsekian, 37 N.J. 143, 149 (1962). Here, the only competent evidence presented to the Board came from Gesell's testimony. The Township could have called a witness or introduced competent authenticated documents to rebut Gesell's testimony that the police department does not have an established protocol for police officers to access this particular law enforcement database. The Board instead expected mere copies of the criminal charges against Gesell would be sufficient to meet its burden of proof.

We may reverse an administrative agency's decision only if it is arbitrary, capricious, or unreasonable. In re Proposed Quest Acad. Charter Sch., 216 N.J. 370, 385 (2013). Stated differently, our role as an appellate court

is generally restricted to three inquiries: (1) whether the agency's action violates express or implied legislative policies, that is, did the agency follow the law; (2) whether the record contains substantial evidence to support the findings on which the agency based its action; 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.

[Ibid. (quoting Mazza v. Bd. of Trs., 143 N.J. 22, 25 (1995).]

Based on the record before us, we discern no reason to interfere with the Board's decision.

Affirmed.

1 The parties in this appeal have not provided us with any information indicating Gesell's status in this respect has changed.

2 As an experienced police officer who rose to the rank of Acting Lieutenant after twenty-two years of service, we presume Gesell was aware he had the right not to answer any questions of a self-incriminating nature. Moreover, the Tribunal's Examiner was not obligated to inform Gesell of his right not to say anything that may be used against him at the trial of the pending criminal charges. See State v. Bogus, 223 N.J. Super. 409, 423 (App. Div. 1988).

3 The case law submitted by the Township was improperly cited. Furthermore, in all three of the cases cited the claimant had been found guilty of committing some type of misconduct based on evidence presented before an adjudicative officer or tribunal.