IN THE MATTER OF RICHARD C. WILLIAMS JR

NOT FOR PUBLICATION WITHOUT THE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

RICHARD C. WILLIAMS, JR.

____________________________________________

 

Before Judges Alvarez and St. John.

 

On appeal from the New Jersey Civil Service Commission, Docket No. 2011-1335.

 

Joseph A. Levin argued the cause for appellant Richard C. Williams, Jr. (Law Offices of Joseph A. Levin, LLC, attorneys; Mr. Levin, on the brief).

 

Steven S. Glickman argued the cause for respondent Atlantic City Fire Department (Ruderman & Glickman P.C., attorneys; Mr. Glickman, of counsel; Vincent M. Avery, on the brief).

 

Jeffrey S. Chiesa, Attorney General, attorney for respondent New Jersey Civil Service Commission (Todd A. Widger, Deputy Attorney General, on the statement in lieu of brief).

 

PER CURIAM

Richard C. Williams, Jr. appeals the September 7, 2011 Civil Service Commission (Commission) decision which upheld his removal from employment with the Atlantic City Fire Department (Department). Following our review of the arguments advanced on appeal, in light of the record and applicable law, we reverse and remand to the Commission for further proceedings.

I.

The record discloses the following facts and procedural history leading to the administrative determination under review.

On September 10, 2009, the Department issued a preliminary notice of disciplinary action against Williams, charging him with conduct unbecoming a public employee, N.J.A.C. 4A:2-2.3(a)(6); misuse of public property, including motor vehicles, N.J.A.C. 4A:2-2.3(a)(8); other sufficient cause, N.J.A.C. 4A:2-2.3(a)(11); violation of the statutory standard of behavior required of firefighters as detailed in N.J.S.A. 40A:14-17 and Karins v. City of Atlantic City, 152 N.J. 532 (1998); and violation of departmental rules and regulations. Williams requested a departmental hearing and discovery, and waived the thirty-day rule for the hearing.

The departmental hearing was conducted on April 21, 2010. The record was held open until the recordings of the proceedings were received by the hearing officer on or about May 3. In a written opinion dated August 12, 2010, the hearing officer recommended that Williams be removed effective September 15, 2009.1

The Department amended the preliminary notice of disciplinary action on August 24, 2010, changing Williams' suspension to suspension with pay, effective March 16, 2010. The Department then issued a final notice of disciplinary action, removing Williams as a firefighter effective August 12, 2010. Williams' appeal of that decision was transferred to the Office of Administrative Law pursuant to N.J.S.A. 52:14B-1 to -15 and N.J.S.A. 52:14F-1 to -13, for determination as a contested case. He then filed a motion to dismiss on January 7, 2011, which the administrative law judge (ALJ) denied on February 3, 2011. Following three days of hearings, the ALJ issued a decision sustaining the charges of unbecoming conduct and misuse of public property, dismissing the charge of other sufficient cause, and affirming the termination of Williams' employment.

Williams filed exceptions with the Civil Service Commission. The Commission issued a final administrative action on September 7, 2011, affirming the decision of the ALJ. This appeal ensued.

II.

Established precedents guide our task on appeal. Appellate review of an administrative agency decision is limited. See In re Herrmann, 192 N.J. 19, 27 (2007). A strong presumption of reasonableness attaches to the Commission's decision. In re Carroll, 339 N.J. Super. 429, 437 (App. Div.), certif. denied, 170 N.J. 85 (2001). The burden is on the appellant to demonstrate grounds for reversal. McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 563 (App. Div. 2002); see also Bowden v. Bayside State Prison, 268 N.J. Super. 301, 304 (App. Div. 1993) (holding that "[t]he burden of showing the agency's action was arbitrary, unreasonable, or capricious rests upon the appellant"), certif. denied, 135 N.J. 469 (1994).

Williams' disciplinary charges arose out of an allegation that while on duty he exposed himself and ejaculated in front of a group of women during an unscheduled tour of the fire station, and improperly allowed the women to wear fire department equipment. This group of women included Candius Williams2 who is involved in a civil suit against Atlantic City for events arising out of the same incident. While Williams acknowledges that he gave four women a tour of the station on the night in question, he disputes that he was involved in any sexual misconduct. He argues that the girls were not credible witnesses and that the ALJ erred in believing their testimony. Williams further argues that the only piece of physical evidence, a photograph of one of the girls wearing a firefighter's uniform, was taken when he was not in the firehouse and the ALJ erred in concluding otherwise. He finally argues that the ALJ should have applied the concept of progressive discipline to mitigate his penalty, that the ALJ should have disqualified himself from hearing the case because of a conflict of interest, and that the ALJ erred in denying his motion to dismiss based on procedural grounds.

We address Williams' contention that the ALJ should have recused himself from hearing the case because the ALJ's son is an associate in the law firm representing Candius in her civil suit. Although Williams' attorney was aware of this fact prior to the administrative hearing, he did not raise the issue until he filed his exceptions with the Commission after the ALJ had issued his initial decision. Williams contends that the ALJ was aware of the conflict prior to the commencement of the administrative hearing since it was disclosed in a footnote in his motion to dismiss that his son's firm represented Candius. Williams argues that the ALJ should have sua sponte recused himself, which of course presupposes that he was aware of the potential conflict.

Since Williams made no motion challenging the ALJ before the hearing the issue might be said to be improperly raised at this time. See Bonnet v. Stewart, 155 N.J. Super. 326, 330 (App. Div.), certif. den., 77 N.J. 468 (1978); State v. Hill, 110 N.J. Super. 370, 374 (App. Div. 1970). Williams should have requested that the ALJ recuse himself prior to the hearing. If the ALJ denied the request then the order could "only be appealed interlocutorily; a party may not seek review of such orders or rulings after the judge renders the initial decision in the contested case." N.J.A.C. 1:1-14.10(l). However, Williams asserts the ALJ knew of the conflict, and Williams did challenge the ALJ's conflict of interest before the Commission issued its opinion. Therefore, this issue is ripe for our determination.

N.J.A.C. 1:1-14.12 in pertinent part provides certain times when an administrative law judge shall be disqualified:

(a) A judge shall, on his or her own motion, withdraw from participation in any proceeding in which the judge's ability to provide a fair and impartial hearing might reasonably be questioned, including but not limited to instances where the judge:

 

1. Has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;

 

. . . .

 

3. Is by blood or marriage the first cousin of or is more closely related to any attorney in the case. This proscription shall extend to partners, employers, employees or office associates of any such attorney;

 

. . . .

 

8. When there is any other reason which might preclude a fair and unbiased hearing and decision, or which might reasonably lead the parties or their representatives to believe so.

 

(b) A judge shall, as soon as practicable after assignment to a particular case, withdraw from participation in a proceeding whenever the judge finds that any of the criteria in (a)1 through 8 above apply. A judge may not avoid disqualification by disclosing on the record the basis for disqualification and securing the consent of the parties.

 

(c) Any party may, by motion, apply to a judge for his or her disqualification. Such motion must be accompanied by a statement of the reasons for such application and shall be filed as soon as practicable after a party has reasonable cause to believe that grounds for disqualification exist. In no event shall the judge enter any order, resolve any procedural matters or render any other determination until the motion for disqualification has been decided.

 

(d) Any request for interlocutory review of an administrative law judge's order under this section shall be made pursuant to N.J.A.C. 1:1-14.10(k) and (l).

In its decision the Commission determined:

With respect to the appellant's allegation of a conflict of interest, it is not clear from the record that the ALJ was aware that the law firm where his son works represents Candius Williams. In addition, there is nothing in the record to suggest that the ALJ's son is involved in Williams' lawsuit. Furthermore, the appellant's attorney should have raised any concerns regarding a perceived conflict or filed a motion for disqualification pursuant to N.J.A.C. 1:1-14.2(c) when he became aware of the issue. Moreover, there is no apparent or real evidence of bias since the ALJ did not find Candius Williams' testimony credible. (Internal footnote omitted).

 

We note that the Court no longer evaluates an attorney's claimed conflict of interest in accordance with the appearance of impropriety standard. See Kane Props., LLC v. City of Hoboken, ___ N.J. ___ (2013). However, the appearance of impropriety standard has never been altered as it relates to judges, see Code of Judicial Conduct, Canon 2 ("A judge should avoid impropriety and the appearance of impropriety in all activities.").

"Although the criteria applicable to members of the judiciary may differ in some respects from those which apply to administrative adjudicators, see 3 Davis, Administrative Law Treatise (2 ed. 1980), 19:1 et seq., we conclude that similar standards are generally applicable." Sheeran v. Progressive Life Ins. Co., 182 N.J. Super. 237, 243 (App. Div. 1981).

In DeNike v. Cupo, 196 N.J. 502, 514-19 (2008), the Supreme Court defined the appropriate standard to use in determining whether there was an appearance of impropriety as to a judge's act: "Would a reasonable, fully informed person have doubts about the judge's impartiality?" Id. at 517; see In re Tenure Hearing of Onorevole, 103 N.J. 548, 561 (1986). If the judge's conduct gave the public "reason to lack confidence in the integrity of the process and its outcome[,]" the decision rendered would have to be reversed and the matter retried. DeNike, supra, 196 N.J. at 517.

In establishing that approach, the Supreme Court did not require evidence that the judge in fact conducted the proceedings in a biased or unfair way. Id. at 517-19. Instead, the Court determined "'it is not necessary to prove actual prejudice . . .' to establish an appearance of impropriety; an 'objectively reasonable' belief that the proceedings were unfair is sufficient." Id. at 517 (quoting State v. Marshall, 148 N.J. 89, 279, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997)); see Griggs v. Borough of Princeton, 33 N.J. 207, 220 (1960) (holding that when appearance of impropriety standard applies, it is "the mere existence of a conflict, not its actual effect, which requires the official [municipal] action to be invalidated"). As the Court made clear, however, the touchstone is the objectively reasonable belief, DeNike, supra, 196 N.J. at 517, and it remains true that an appearance of impropriety must be "something more than a fanciful possibility" and "must have some reasonable basis[,]" Higgins v. Advisory Comm. on Prof'l Ethics of Supreme Court, 73 N.J. 123, 129 (1977). We find no basis on which to conclude that a different standard should apply to an ALJ hearing a contested case.

Applying these standards leaves no doubt that an objectively reasonable, fully informed member of the public would perceive that participation by the ALJ in these proceedings calls into question his impartiality and the impartiality of the Commission's decision, as well as the integrity of the proceedings. The employment of ALJ's son as an associate in the firm representing Candius, and the lack of recusal of the ALJ irretrievably tainted the action taken thereafter by the Commission, and its decision must be set aside.

We reverse the decision of the Commission and remand for further proceedings consistent with this opinion. We direct that the matter be assigned to a different administrative law judge for a de novo hearing and initial decision. The Commission shall then proceed with its decision based on the record created by the de novo proceedings.

Reversed and remanded. We do not retain jurisdiction.

1 Williams asserts that this opinion was not received until late August 2010.

2 Ms. Williams is not related to the appellant. For clarity we shall refer to Ms. Williams by her first name.