IN THE MATTER OF RON SMITH

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1923-09T2

IN THE MATTER OF

RON SMITH.

_________________

February 17, 2011

Argued: January 26, 2011 - Decided:

Before Judges Cuff and Fasciale.

On appeal from a Final Administrative Decision of the Civil Service Commission, Docket No. 2008-3412.

Arnold Shep Cohen argued the cause for appellant Ron Smith (Oxfeld Cohen, P.C., attorneys; Mr. Cohen, on the brief).

John Franzini, Deputy Attorney General, argued the cause for respondent Kean University (Paula T. Dow, Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Mr. Franzini, on the brief).

PER CURIAM

Ron Smith appeals from an order and final administrative decision of the Civil Service Commission (Commission) that terminated him as a Senior Building Maintenance employee at Kean University (Kean). The Commission rejected credibility determinations of an Administrative Law Judge (ALJ) and made its own modified findings. We affirm because the Commission stated with particularity the reasons for rejecting the findings and made new findings which are supported by sufficient, competent, and credible evidence.

Kean charged Smith with brandishing a knife against a co-worker on May 22, 2007, and threatening to kill another co-worker on June 7, 2007. Kean terminated Smith from employment, Smith appealed, and the matter was transmitted to the Office of Administrative Law for a hearing.

An ALJ conducted a hearing over two days at which nine witnesses testified. Two of the nine witnesses -- Edward North and William McRobbie -- testified that Smith brandished a knife towards Gerard Cianci. The ALJ found that Smith neither possessed a knife nor threatened a co-worker. The ALJ stated:

I do not credit the testimony of either North or McRobbie. Their testimony was inconsistent and less than reliable. Some of the critical facts as recalled by North in his June 7, 2007[] written statement differ from his testimony from this hearing. North concedes that he did not see Smith pull out a knife or open the blade as previously reported. McRobbie's assertion that a knife was visible for five minutes is not supported by any witness. In addition, both North's and McRobbie's accounts are contradicted by [Steven] Pinto, [Orlando] Lopez, and [Gerard] Cianci, none of whom recalled the presence of a knife on May 22, 2007.

The ALJ recommended a thirty-day suspension from employment because Smith was inappropriately loud and disruptive in the work environment.

Kean appealed to the Commission and argued that the ALJ's credibility findings were unreasonable and not supported by the evidence. The Commission agreed and stated the reasons for rejecting the ALJ's findings. After conducting its own independent review of the record, the Commission upheld Kean's removal of Smith from employment.

On appeal, Smith contends that the credibility findings made by the ALJ were supported by sufficient credible evidence and that the Commission rejected those findings incorrectly. Smith argues, therefore, that the Commission's independent findings contravened the provisions of N.J.S.A. 52:14B-10(c) which governs the final decision of an agency in contested cases, and provides in part that:

The agency head may not reject or modify any findings of fact as to issues of credibility of lay witness testimony unless it is first determined from a review of the record that the findings are arbitrary, capricious or unreasonable or are not supported by sufficient, competent, and credible evidence in the record. In rejecting or modifying any findings of fact, the agency head shall state with particularity the reasons for rejecting the findings and shall make new or modified findings supported by sufficient, competent, and credible evidence in the record.

To reverse the ALJ's factual findings, the Commission "must explain why the ALJ's decision was not supported by sufficient credible evidence or was otherwise arbitrary." Cavalieri v. Bd. of Trustees, 368 N.J. Super. 527, 534 (App. Div. 2004) (citing N.J.S.A. 52:14B-10(c)). It is not enough for the Commission to "simply [state] that [it] disagree[s] with the [ALJ] or would have decided [the case] differently. . . ." Id. at 537. The Commission stated:

[A] review of the testimony clearly shows that North, while presenting slightly different accounts of the May 22, 2007 incident in his testimony as compared to his written statements, has steadfastly maintained he saw [Smith] with a knife during the altercation. . . . [T]he ALJ discounted North's testimony due to these inconsistencies. However, based on the Commission's review of the testimony, it finds that North's inconsistencies actually bolster his credibility. In his testimony [on direct-examination], North admitted that his prior written statements inaccurately indicated that he saw [Smith] actually draw the knife and open the blade. However, he repeatedly indicated that the knife was present. How the knife was drawn is immaterial and the fact that North admitted his statements in that regard were not accurate demonstrates North's desire to present, under oath, the most accurate portrayal of what he witnessed. . . . Moreover, there was no reason presented for North, who was not an employee [of Kean], to fabricate, exaggerate or otherwise lie about what he witnessed on May 22, 2007. Further, supporting North's credibility, another witness, Steven Pinto, corroborated that he heard North state, during the incident, that [Smith] had a knife. Additionally, the fact that the other witnesses did not see the knife is not dispositive. These witnesses were mostly not in positions to see the weapon . . . .

Our review of the record convinces us that the Commission fulfilled its obligation under N.J.S.A. 52:14B-10(c) and Cavalieri. North was consistent that he saw Smith with a knife, and North had no reason to fabricate, exaggerate or otherwise lie about what he witnessed. North described it as a "hunting knife with a four[-] to six[-]inch [open] blade." North observed Smith hold it in his right hand near Smith's right thigh, asked Smith why he had the knife, stated "he's got a knife," provided a written statement, and reported it to the campus police. North volunteered on direct-examination that his statement to the detective was accurate, except that he did not see Smith remove the knife from his pocket and point it at Cianci. How the knife was drawn is immaterial. Moreover, the ALJ ignored the testimony of Steven Pinto who stated that he heard North say Smith had a knife. Here, the Commission explained with particularity why the ALJ's decision was not supported by sufficient credible evidence and was arbitrary.

This court will only disturb a final agency determination if it concludes that the decision was arbitrary and capricious. In re Holy Name Hosp., 301 N.J. Super. 282, 295 (App. Div. 1997) (citing Worthington v. Fauver, 88 N.J. 183, 204 (1982)). The arbitrary and capricious standard is essentially a rational-basis analysis. Worthington, supra, 88 N.J. at 204. That is, "'[a]rbitrary and capricious action of administrative bodies means willful and unreasoning action, without consideration and in disregard of circumstances.'" Ibid. (quoting Bayshore Sewerage Co. v. Dep't Envtl. Prot., 122 N.J. Super. 184, 199 (Ch. Div. 1973), aff'd, 131 N.J. Super. 37 (App. Div. 1974)). A "determination predicated on unsupported findings is the essence of arbitrary and capricious action." In re Boardwalk Regency Corp., 180 N.J. Super. 324, 334 (App. Div. 1981), modified by 90 N.J. 361, appeal dismissed sub nom. Perlman v. Att'y Gen. of N.J., 459 U.S. 1081, 103 S. Ct. 562, 74 L. Ed. 2d 927 (1982). There is a strong presumption of the agency's reasonableness. In re Holy Name Hosp., supra, 301 N.J. Super. at 295. The burden of showing that an agency determination was arbitrary and capricious is on the party challenging it. Ibid.

Considering the record as a whole, we conclude there is sufficient credible evidence to support the Commission's decision. In re Harborage, 300 N.J. Super. 363, 378 (1997) (citing Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85, 92-93 (1973)).