DIANA M. MAY 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NOT FOR PUBLICATION WITHOUT THE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

DIANA M. MAY,

Appellant,

v.

BOARD OF REVIEW, DEPARTMENT OF

LABOR, and BOROUGH OF PINE HILL,

Respondents.

___________________________________________

July 9, 2014

Argued May 6, 2014 Decided

Before Judges Alvarez, Carroll, and Higbee.

On appeal from the Board of Review, Department of Labor, Docket No. 253,757.

Carolyn G. Labin argued the cause for appellant (Klineburger and Nussey, attorneys; Richard F. Klineburger, III, on the brief).

Jacobine Dru, Deputy Attorney General, argued the cause for respondent Board of Review, Department of Labor (John J. Hoffman, Acting Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Ms. Dru, on the brief).

John B. Kearney argued the cause for respondent Borough of Pine Hill (Kearney and Associates, P.C., attorneys; Mr. Kearney, on the brief).

PER CURIAM

Plaintiff Diana May (May) appeals from the decision of defendant Board of Review (Board) denying her application for unemployment benefits. We find the decision was not arbitrary, capricious or unreasonable, but was based on sufficient evidence to support the finding of gross misconduct by May. We affirm.

May served as the tax collector for the Borough of Pine Hill (Borough) for many years. She was suspended by the Borough without pay for falsely certifying that she attended classes for continuing education credits that she actually did not attend. The classes were paid for by the Borough. As a result, the Camden County Prosecutor's Office filed a criminal complaint against May for fourth degree falsifying or tampering with records in violation of N.J.S.A. 2C:21-4a.

The Borough filed a complaint with the Department of Community Affairs (DCA) seeking May's removal, which referred the matter to an Administrative Law Judge (ALJ) as a contested case. After a two-day hearing, the ALJ issued a written decision in March 2012 finding that May had falsely claimed attendance at six classes in 2008, and good cause for her termination. The ALJ's decision was appealed to the director of the DCA and to the Local Finance Board. The finding of the ALJ on the issue of misconduct by May was affirmed. May appealed that decision to this court, and we affirmed the decision in the companion case of Borough of Pine Hill v. Diana May, No. A-0357-12 (App. Div. July 9, 2014).

Initially, the New Jersey Department of Labor found that May was disqualified for five weeks of benefits because of misconduct. She appealed to the Appeal Tribunal (Tribunal) in October2009. At the first hearing in December 2009, the appeals examiner determinedthat sinceMay hadbeen charged with falsifying a writing, there should be a second hearing date with both sides on notice that the issue was whether there was gross misconduct which would disqualify May for all unemployment benefits. After a hearing in March 2010, the Tribunal found May did commit gross misconduct and was, therefore, not entitled to any benefits. This decision was appealed to the Board. The Board reversed the Tribunal's decision on May 3, 2011, finding it was based on hearsay allegations from the employer's attorney without corroboration. The Borough appealed the Board's decision.

Meanwhile, in December 2009, the Borough filed the petition to remove May from her tenured position, and the ALJ found good cause for termination of employment. Based on this decision, the Borough successfully moved before us to remand the unemployment case to the Board for reconsideration. The Board reopened the matter and remanded it to the Tribunal. On September 18, 2012, the appeals examiner held a new hearing. The October 2012 decision of the Tribunal was that May committed gross misconduct and was not eligible for unemployment benefits. The Board affirmed the finding of the Tribunal on April 10, 2013. May now appeals that decision.

At the time of the final hearing of September 18, 2012, the Appeals Examiner had already heard testimony on December 17, 2009 and March 15, 2010, and had a copy of the ALJ's decision. That written decision summarized the testimony of each of the witnesses who testified before the ALJ.

At that time, the criminal charge against May was still pending. The Appeals Examiner found that there was ample evidence that May had failed to attend six classes in 2008 and that she falsely certified she attended these classes on the renewal form for her tax collector license on June 2009.

On October 15, 2012, the Department of Labor issued a request for refund of benefits paid to May. On October 18, 2012, the Camden County Prosecutor's Office dismissed the criminal charges after the Grand Jury failed to return an indictment. May forwarded the letter informing her of the Grand Jury's decision with her appeal of the Tribunal's decision to the Board. On April 10, 2013, the Board found May engaged in gross misconduct and was thus disqualified from receiving unemployment benefits. The Board accepted the decision of the Tribunal but made no reference to the fact that the Grand Jury had failed to indict May.

The purpose of New Jersey's Unemployment Compensation Act, N.J.S.A. 43:21-1 to -24.30, "is to provide some income for the worker earning nothing, because he is out of work through no fault or act of his own . . . ." Yardville Supply Co. v. Bd. of Review, 114 N.J. 371, 375 (1989)(internal citations and quotations omitted)(emphasis added in original). Although the Act is remedial in nature, it is the claimant who bears the burden of proving entitlement to benefits. Brady v. Bd. of Review, 152 N.J. 197, 218 (1997). "The basic policy of the [Act] is advanced as well when benefits are denied in improper cases as when they are allowed in proper cases." Yardville, supra, 114 N.J. at 374. The Act provides for disqualification from benefits of employees discharged for "misconduct" or "gross misconduct" connected with work. N.J.S.A. 43:21-5(b).

The statute defines "gross misconduct" as "an act punishable as a crime of the first, second, third or fourth degree." Ibid. If an employee is discharged for committing an act of gross misconduct, he or she is completely disqualified for benefits. Ibid. "[I]t is only necessary 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); see also Appeal of Darcy, 114 N.J. Super. 454, 458 (App. Div. 1971)("The quantum of proof in a criminal trial is different from and higher than that in proceedings before an administrative agency.").

Unemployment hearings are not bound by the Rules of Evidence and specifically permit hearsay evidence. See DeBartolomeis v. Bd. of Review, 341 N.J. Super. 80, 83 (App. Div. 2001); N.J.A.C. 1:12-15.1(b). We conclude that the Tribunal and Board had sufficient evidence, both from testimony about May's failure to attend classes in 2008, and from the ALJ's decision, to support a finding that May did not attend the 2008 courses.

May also argues that the Board failed to mention her political retaliation defense in its decision. At the initial fact-finding hearing before the Department of Labor's Claims Examiner deputy, May testified that she was suspended because her father planned to run for office against the mayor. May did not mention this allegation again at subsequent hearings, nor did the ALJ note it in her decision. May presented scant evidence to support the allegation. The Board therefore did not err by failing to note or adjudicate May's conclusory claim of political retaliation. Cf. Bailey v. Bd. of Review, 339 N.J. Super. 29, 32-33 (App. Div. 2001).

Lastly, the Board correctly found that May's conduct amounted to a violation of N.J.S.A. 2C:21-4(a), constituting gross misconduct, based on evidence in the record. In order to commit fourth-degree falsification of records, one must act with a "purpose to deceive or injure anyone." Ibid. Substantial, credible evidence supports the Board's conclusion that May listed six courses on her tax collector renewal form that she did not actually attend. The courses were necessary for May to satisfy her licensure requirements. May had the requisite intent to deceive because her falsification was intended to deceive the State into believing she satisfied her licensure requirements. The fact that a grand jury ultimately did not indict her despite the minimal level of proof required is of no significance.

A no bill is not even equivalent to an acquittal by a jury which also does not bar a subsequent administrative or civil case. See In re Registrant, C.A., 146 N.J. 71, 91 (1996) ("We have approved of civil penalties for conduct when the individual was acquitted on charges of committing that offense."); E. Hanover v. Cuva, 156 N.J. Super. 159, 163 (App. Div. 1978) ("It is well settled that acquittal of criminal or quasi-criminal charges does not have preclusionary consequences in respect of a subsequent civil action based on the same conduct, and this is so even if the parties to both actions are the same."); Darcy, supra, 114 N.J. Super. at 458-59 (acquittal of a criminal charge of nonfeasance in office does not bar subsequent Civil Service Commission proceedings based on the same alleged conduct). The Board did not err in refusing to consider the administrative dismissal of criminal charges even if they were relevant because of the substantial, credible evidence in the record that May did not attend the six courses at the 2008 conference.

We find the Board's decision as to gross misconduct and May's disqualification for benefits for falsely certifying she attended the 2008 courses when she did not attend six of the classes was supported by sufficient credible evidence and was not arbitrary, capricious or unreasonable.

There was no evidence of gross misconduct as related to the 2009 courses. The Board refers to May's failure to properly advise her employer she did not attend the 2009 courses. There is no need to affirm or reverse this particular finding. The final decision of the Board affirmed the Tribunal's decision which relied on the false reporting of the 2008 course attendance.

Affirmed.