IN THE MATTER OF KEVIN WESBY DEPARTMENT OF HUMAN SERVICES

NOT FOR PUBLICATION WITHOUT THE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 KEVIN WESBY,

DEPARTMENT OF HUMAN SERVICES.

______________________________

September 2, 2014

Before Judges Simonelli and O'Connor.

On appeal from the New Jersey Civil Service Commission, CSC Docket No. 2011-2040.

William B. Hildebrand, attorney for appellant Kevin Wesby.

John J. Hoffman, Acting Attorney General, attorney for respondent New Jersey Civil Service Commission, Department of Human Services (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Nicole M. DeMuro, Deputy Attorney General, on the brief).

PER CURIAM

Appellant Kevin Wesby appeals from the January 23, 2013 decision of respondent Civil Service Commission (Commission) to deny an award of counsel fees pursuant to N.J.A.C. 4A:2-2.12. We affirm.

Appellant was employed as a Human Services Assistant at Ancora Psychiatric Hospital (Ancora). He was removed, effective June 1, 2010, on a charge that on May 24, 2010, he had inappropriate physical contact with or mistreated a patient (the first charge). On a separate charge, he was removed, effective June 1, 2010, for failing to attend an investigative interview regarding the May 24th incident (the second charge).

Appellant appealed both charges. The matters were transmitted to the Office of Administrative Law (OAL), where appellant requested consolidation. The Administrative Law Judge (ALJ) determined that the matters concerned the same parties and events and consolidated them "for all purposes including hearing and disposition."

Following a hearing, the ALJ determined that Ancora did not sustain both charges and reversed the removals. The Commission agreed with the ALJ as to the second charge, but not the first charge. The Commission upheld the first charge, finding that appellant's conduct "was clearly inappropriate contact and worthy of disciplinary sanction," but modified the removal to a thirty-day suspension.

With respect to an award of counsel fees, the Commission noted that "[t]he primary issue in any disciplinary appeal is the merits of the charges, not whether the penalty imposed was appropriate." The Commission concluded that because the charges were sustained and major discipline was imposed, appellant did not prevail on all or substantially all of the primary issues raised in his appeal, and thus, was not entitled to counsel fees pursuant to N.J.A.C. 4A:2-2.12(a). This appeal followed.

On appeal, appellant contends the Commission erred in denying him counsel fees for his successful defense of the second charge. He argues that consolidation of the two matters for hearing should not operate to deprive him of counsel fees to which he would have been entitled if the matters had been tried separately, as they could have been because they involved separate incidents. We disagree.

"[We] have 'a limited role' in the review of [agency] decisions." In re Stallworth, 208 N.J. 182, 194 (2011). "[A] 'strong presumption of reasonableness attaches to [an agency decision].'" In re Carroll, 339 N.J. Super. 429, 437 (App. Div.) (quoting In re Vey, 272 N.J. Super. 199, 205 (App. Div. 1993), aff d, 135 N.J. 306 (1994)), certif. denied, 170 N.J. 85 (2001). "In order to reverse an agency's judgment, [we] must find the agency's decision to be 'arbitrary, capricious, or unreasonable, or [] not supported by substantial credible evidence in the record as a whole.'" Stallworth, supra, 208 N.J. at 194 (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579 (1980).

In determining whether agency action is arbitrary, capricious, or unreasonable, [we] must examine:

(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 In re Carter, 191 N.J. 474, 482-83 (2007)).]

We "'may not substitute [our] own judgment for the agency's, even though [we] might have reached a different result.'" Ibid. (quoting Carter, supra, 191 N.J. at 483). "This is particularly true when the issue under review is directed to the agency's special 'expertise and superior knowledge of a particular field.'" Id. at 195 (quoting In re Hermann, 192 N.J. 19, 28 (2007)). Furthermore, "[i]t is settled that '[a]n administrative agency's interpretation of statutes and regulations within its implementing and enforcing responsibility is ordinarily entitled to our deference.'" E.S v. Div. of Med. Assistance & Health Servs., 412 N.J. Super. 340, 355 (App. Div. 2010) (second alteration in original) (citations and internal quotation marks omitted). "Nevertheless, 'we are not bound by the agency's legal opinions.'" A.B. v. Div. of Med. Assistance & Health Servs., 407 N.J. Super. 330, 340 (App. Div.) (quoting Levine v. State Dep't of Transp., 338 N.J. Super. 28, 32 (App. Div. 2001)), certif. denied, 200 N.J. 210 (2009). "Statutory and regulatory construction is a purely legal issue subject to de novo review." Ibid. (citation omitted).

N.J.A.C. 4A:2-2.12(a) provides that the Commission "shall award partial or full reasonable counsel fees incurred in proceedings before it and incurred in major disciplinary proceedings at the departmental level where an employee has prevailed on all or substantially all of the primary issues before the Commission." The proceedings before the Commission in this case involved both charges, and the matters were consolidated because they were founded on the May 24th incident. Although appellant prevailed in part, he did not prevail on all or substantially all of the primary issues before the Commission. Accordingly, we conclude that the Commission's decision to deny counsel fees constituted a valid interpretation of its regulations and was not arbitrary, capricious, or unreasonable.

Affirmed.