CHRISTOPHER OROSZ v. BOARD OF TRUSTEES POLICE AND FIREMEN'S RETIREMENT SYSTEM

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

CHRISTOPHER OROSZ,

Petitioner-Appellant,

v.

BOARD OF TRUSTEES, POLICE

AND FIREMEN'S RETIREMENT

SYSTEM,

Respondent-Respondent.

________________________________________

June 3, 2015

Submitted May 12, 2015 Decided

Before Judges Yannotti, Fasciale and Whipple.

On appeal from the Board of Trustees of the Police & Firemen's Retirement System, PFRS No. 3-98873.

Alterman & Associates, L.L.C., attorneys for appellant (Jessica L. Arndt and Matthew R. Dempsky, on the briefs).

John J. Hoffman, Acting Attorney General, attorney for respondent (Lewis Scheindlin, Assistant Attorney General, of counsel; Chris M. Tattory, Deputy Attorney General, on the brief).

PER CURIAM

Christopher Orosz ("Orosz") appeals from a final decision of the Board of Trustees ("Board") of the Police and Firemen's Retirement System ("PFRS"), concluding that a partial forfeiture of one year of his PFRS service and salary credit is warranted due to dishonorable service. We affirm.

This appeal arises from the following facts. On April 26, 2009, Orosz, who was then a Middlesex County ("County") corrections officer, was arrested in Edison Township and charged with criminal sexual contact, N.J.S.A. 2C:14-3b. Defendant also was charged with simple assault, N.J.S.A. 2C:12-1a. The following morning, Orosz was arrested in Plainsboro Township and charged with unlawful possession of a weapon, specifically a can of pepper spray, N.J.S.A. 2C:39-5d; resisting arrest, N.J.S.A. 2C:29-2a; and harassment, N.J.S.A. 2C:33-4b.

As a result of these charges, the County issued a Preliminary Notice of Disciplinary Action ("PNDA") to Orosz, charging him with violations of various administrative rules, specifically, six counts of conduct unbecoming a public employee, four counts of neglect of duty, and two counts of other sufficient cause for discipline.

The following day, the County suspended Orosz without pay. On July 15, 2009, the County and Orosz entered into an agreement. The County agreed that Orosz could resign in good standing, effective that date but no later than July 31, 2009. The County and Orosz further agreed that his suspension without pay would remain in effect until he resigned.

On July 16, 2009, Orosz filed an application with the PFRS for ordinary disability benefits due to stress, anxiety and depression. Shortly thereafter, Orosz pled guilty to two charges of engaging in disorderly conduct involving the use of offensive language, in exchange for the dismissal of the other criminal charges.

Orosz was sentenced to two years of probation on each charge, with the sentences to run concurrently. Orosz was ordered to have no further contact with the victim. On July 28, 2009, the County issued a Final Notice of Disciplinary Action ("FNDA"), which upheld Orosz's suspension without pay from April 29, 2009 to July 20, 2009.

On April 12, 2010, the Board considered Orosz's application for ordinary disability benefits. The Board determined that Orosz's public service had been dishonorable and, as a result, he had forfeited his entire pension service and salary credit earned in his four years and nine months of public employment. Orosz filed an administrative appeal from that decision, and the Board referred the matter to the Office of Administrative Law for a hearing before an Administrative Law Judge ("ALJ").

The ALJ conducted the evidentiary hearing and thereafter filed an initial decision dated October 22, 2013, finding that Orosz should remain eligible to receive his earned service credit, pension or retirements benefits and they should not be forfeited. The ALJ noted that criminal charges had been filed against Orosz during his brief period of public employment, but those charges were never proven and the charges were downgraded to two instances of using offensive language.

The ALJ determined that the PFRS had not proven by a preponderance of the evidence any allegations in the criminal complaint, other than the charges involving the use of offensive language. Furthermore, according to the ALJ, the County had withdrawn the administrative charges. The ALJ noted that Orosz's misconduct had occurred off-duty, and his admitted use of offensive language was not conduct that involved "a high degree of moral turpitude." The ALJ also noted that Orosz had "already suffered" and would not be allowed to return to law enforcement.

The ALJ concluded that Orosz's misconduct "does not constitute a breach of the condition that public service be honorable, as Orosz was off-duty when the misconduct occurred, and it was limited to a singular series of events instigated by [the victim] during the course of one lone evening, immediately after [which] he broke off their [relationship]." A Deputy Attorney General ("DAG") filed exceptions to the ALJ's decision on behalf of the PFRS, and Orosz filed a response.

The Board issued a final decision dated February 11, 2014. The Board rejected the ALJ's finding that the PFRS failed to prove by a preponderance of evidence that Orosz had illegally possessed pepper spray and resisted arrest. The Board also rejected the ALJ's finding that the charge of resisting arrest indicated "vindictiveness or spite" on the part of the arresting officer, noting that there was no evidence to support that finding.

The Board also determined that the ALJ had erred by failing to consider the administrative charges that the County had filed. Those charges include two counts on neglect of duty, for failing to inform the County immediately upon his release after being arrested in Edison and Plainsboro, and two counts of neglect of duty for failing to file a written report with the County within twenty-four hours of the two arrests. The Board noted that ultimately the County had issued a FNDA, which sustained those charges and upheld Orosz's suspension without pay.

The Board then considered the factors enumerated in N.J.S.A. 43:1-3(c) to determine whether a total or partial forfeiture of Orosz's service and salary credit was warranted. The Board found that Orosz's misconduct was a direct violation of New Jersey's statutes, regulations and standards of professional conduct. The Board stated that Orosz had exhibited "outrageous behavior and his "actions involved a serious breach of the public trust and a high degree of moral turpitude." The Board noted that, as a law enforcement officer, Orosz was required to refrain from engaging in any misconduct that would constitute a breach of the public trust.

The Board determined that, upon consideration of the statutory factors, a partial forfeiture of one year of Orosz's service and salary credit was warranted. The Board pointed out that the partial forfeiture would leave Orosz with less than four years of honorable service, thereby making him ineligible for ordinary disability or regular retirement benefits.

Orosz appeals and argues that: (1) the Board's decision should be reversed because it improperly modified the ALJ's initial decision; (2) the partial forfeiture of his service credit was not warranted and was excessive under the circumstances; and (3) the Board has a "built-in" conflict of interest when it is advised by a DAG and is reviewing the position advanced by another DAG.

The scope of our review in an appeal from a final decision of an administrative agency is limited. Circus Liquors, Inc. v. Twp. of Middletown, 199 N.J. 1, 9 (2009) (citation omitted). We must sustain the agency's decision in the absence of a "'clear showing' that it is arbitrary, capricious, or unreasonable" or "lacks fair support in the record[.]" Id. at 9-10 (citing In Re Merrmann, 192 N.J. 19, 27-28 (2007)). When reviewing an agency's decision, we consider

(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.

[Id. at 10 (quoting Mazza v. Bd. of Trs., 143 N.J. 22, 25 (1995)).]

In weighing these considerations, we must acknowledge, when appropriate, an agency's "'expertise and superior knowledge of a particular field.'" Ibid. (quoting Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992)).

Pursuant to N.J.S.A. 43:1-3(a), "[t]he receipt of a public pension or retirement benefit is . . . expressly conditioned upon the rendering of honorable service by a public officer or employee." The Board is authorized to "order the forfeiture of all or part of the earned service credit or pension or retirement benefit of any member . . . for misconduct occurring during the member's public service which renders the member's service or part thereof dishonorable[.]" N.J.S.A. 43:1-3(b).

In Uricoli v. Board of Trustees, Police & Firemen's Retirement System, 91 N.J. 62, 77-78 (1982), the Court identified the factors to be considered when determining whether forfeiture of a member's public service credit or benefits is warranted due to misconduct. These factors were subsequently codified in N.J.S.A. 43:1-3(c). They include the member's length of service; whether the member's pension has vested; the member's duties and public employment record; the nature of the misconduct or crime; the relationship between the misconduct and the member's public duties; and the quality of moral turpitude or the degree of guilt or culpability. Ibid.

We are convinced that there is sufficient credible evidence in the record to support the Board's evaluation of the statutory factors and its decision that a partial forfeiture of one year of Orosz's public service and salary credit was warranted under the circumstances. Among other findings, the Board determined that Orosz had unlawfully possessed pepper spray and resisted arrest. The Board also took note of the County's administrative charges, and found there was a "direct relationship" between the neglect of duty charged and Orosz's service as a corrections officer.

Orosz argues, however, that the partial forfeiture of his earned service time is excessive under the circumstances. We disagree. Here, the Board considered the conduct that formed the basis for the criminal charges, even though those charges had been dismissed. It did not err by doing so. See Corvelli v. Bd. of Trs., Police & Firemen's Ret. Sys., 130 N.J. 539, 552 (1992) (noting that non-criminal conduct may result in forfeiture). The Board also properly considered the charges to which defendant pled guilty, as well as the administrative charges, which included four charges of neglect of duty for failing to report his arrests in a timely manner. The Board found that Orosz's neglect of duty directly related to his obligations as a public employee.

Thus, there is sufficient credible evidence in the record to support the Board's finding that Orosz engaged in conduct that "involved a serious breach of the public trust and a high degree of moral turpitude." The record also supports the Board's determination that, under these circumstances, Orosz's service was dishonorable and a partial forfeiture of his service and salary credit was warranted.

Orosz further argues that the Board improperly modified the ALJ's decision. Again, we disagree. Orosz's administrative appeal was a contested case under the Administrative Procedure Act ("APA"), N.J.S.A. 52:14B-2(b). Accordingly, an evidentiary hearing in the matter was conducted by an ALJ, who issued an initial decision with "recommended findings of fact and conclusions of law[.]" N.J.S.A. 52:14B-10(c).

As head of the agency authorized to render a final decision in the matter, the Board may adopt, reject or modify the ALJ's initial decision. Ibid. Furthermore

[i]n reviewing the decision of an administrative law judge, the agency head may reject or modify findings of fact, conclusions of law or interpretations of agency policy in the decision, but shall state clearly the reasons for doing so. 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.

[Ibid.]

In its final decision, the Board set forth its reasons for rejecting certain findings of the ALJ, specifically the finding that the PFRS failed to prove that Orosz illegally possessed pepper spray and resisted arrest. The Board noted that Orosz had admitted that he was in possession of pepper spray and kept it in his house for use by the victim. In addition, Orosz's mother and father testified that he resisted arrest. The Board also explained its reasons for rejecting the ALJ's finding that the arresting officer acted out of "vindictiveness or spite" when he charged Orosz with resisting arrest. As the Board observed, there was no evidence to support that finding.

Orosz also argues that the Board erred by considering the administrative charges because the County had agreed not to pursue those charges. The record indicates that the County agreed not to seek Orosz's removal on the basis of those charges and allowed him to resign in good standing. Even so, the County had issued the FNDA, finding that the charges had been sustained. That action was necessary to establish that Orosz had been properly suspended without pay. The County's agreement did not preclude the Board from considering the charged neglect of duty in determining whether Orosz's service was honorable.

Orosz further argues that the Board had an inherent conflict of interest because a DAG advised the Board concerning its final decision, while another DAG prosecuted the matter before the ALJ. Again, we disagree. The record indicates that the representation provided by the Attorney General's Office was consistent with In re Opinion No. 583 of the Advisory Committee on Professional Ethics, 107 N.J. 230 (1987) (holding that during the period when an agency head is reviewing an ALJ's decision, the prosecuting DAG may not engage in ex parte communications with agency head, and a different and impartial DAG must render advice to the agency head, if required).

Furthermore, "[p]roof of actual bias is necessary to overturn an administrative action when an agency serves in both prosecutorial and adjudicatory capacities." Del Tufo v. J.N., 268 N.J. Super. 291, 300 (App. Div. 1993) (citing In re Opinion No. 583, supra, 107 N.J. at 236). In this case, there is no evidence of "actual bias" requiring reversal of the Board's decision.

Affirmed.