IN THE MATTER OF JULIO RIVERA v. CITY OF NEWARK

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2794-10T3

IN THE MATTER OF

JULIO RIVERA, FERNANDO

RAMIREZ, ALBERTO LIJO,

and LUIS GONZALEZ,

Plaintiffs-Appellants,

v.

CITY OF NEWARK,

Defendant-Respondent.

__________________________________________________________

November 26, 2012

Submitted March 28, 2012 - Decided

Before Judges Graves and J. N. Harris.

On appeal from the New Jersey Civil Service

Commission, Docket No. 2008-3247.

Darryl M. Saunders, attorney for appellants.

Anna Pereira, Corporation Counsel, attorney

for respondent, City of Newark (Steven F.

Olivo, Assistant Corporation Counsel, on the

brief).

Jeffrey S. Chiesa, 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

Julio Rivera, a police officer with the City of Newark (the City), appeals from a final decision of the Civil Service Commission (the Commission), dated January 19, 2011. The Commission upheld the City's decision to suspend Rivera for fifteen working days for neglect of duty and a violation of police department rules and regulations. On appeal, Rivera contends the disciplinary charges should be dismissed because "there was [only] a minor violation of the Newark Police Department rules and regulations." For the reasons that follow, we affirm.

The disciplinary charges filed against Rivera resulted from a complaint filed by Siryi Escalante. Escalante alleged that on October 19, 2005, Rivera and other officers detained him and two other individuals at a location on Ferry Street in Newark before transporting them to a bar on Astor Street, so that the three men might be identified in connection with a series of burglaries in the area.

Following Rivera's administrative hearing, the Administrative Law Judge (ALJ) found that Rivera violated "internal rules and regulations as charged" by failing to enter on his log sheets that he responded to Astor Street. In addition, the ALJ found that Rivera failed to report the location change to the dispatcher. However, the ALJ dismissed other charges relating to Rivera's failure to report his location, and the ALJ recommended that the penalty be modified to a reprimand for insubordination.

Following a de novo review, the Commission agreed with the ALJ's findings of facts, but disagreed with the recommendations to dismiss the neglect of duty charge and to reduce the penalty to a reprimand. The Commission found that in addition to violating police department rules and regulations, Rivera was also guilty of neglecting his duties.

With respect to the penalty, the Commission reinstated the fifteen-working-day suspension imposed by the City. The Commission found that Rivera's failure to report and document his location changes "posed a very serious potential threat to the safety and security" of the police officers and civilians because the police department would not have been able to locate Rivera in the event of an emergency. The Commission also found that Rivera did not exercise good judgment when he failed to report his location changes, and the Commission concluded that the suspension was justified "regardless of [his] prior disciplinary records." This appeal ensued.

"Courts have only a limited role to play in reviewing the actions of other branches of government. In light of the executive function of administrative agencies, judicial capacity to review administrative actions is severely limited." George Harms Constr. Co. v. N.J. Tpk. Auth., 137 N.J. 8, 27 (1994) (citing Gloucester Cnty. Welfare Bd. v. State Civil Serv. Comm'n, 93 N.J. 384, 390 (1983)). "Ordinarily, an appellate court will reverse the decision of [an] administrative agency only if it is arbitrary, capricious or unreasonable or it is not supported by substantial credible evidence in the record as a whole." Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980) (citing Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963)).

The test for reviewing an administrative sanction is "whether such punishment is 'so disproportionate to the offense, in the light of all the circumstances, as to be shocking to one's sense of fairness.'" In re Polk License Revocation, 90 N.J. 550, 578 (1982) (quoting Pell v. Bd. of Educ., 313 N.E.2d 321, 327 (1974)). "[C]ourts should take care not to substitute their own views of whether a particular penalty is correct for those of the body charged with making that decision." In re Carter, 191 N.J. 474, 486 (2007) (citing In re License Issued to Zahl, 186 N.J. 341, 353-54 (2006)).

Guided by these principles, we conclude there is no basis to intervene. In our view, there is sufficient credible evidence to support the Commission's decision, and the suspension imposed is not disproportionate to Rivera's misconduct.

Affirmed.