IN THE MATTER OF PAUL ANDRADE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is only binding on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

IN THE MATTER OF

PAUL ANDRADE, CITY

OF NEWARK FIRE

DEPARTMENT.

________________________________________

October 12, 2016

Argued September 14, 2016 Decided

 
Before Judges Messano and Guadagno.

On appeal from the Civil Service Commission, Docket No. 2014-575.

Elena K. Weitz argued the cause for appellant Paul Andrade (Grayson & Associates, L.L.C., attorneys; Bette R. Grayson, of counsel; Ms. Weitz, on the briefs).

Pamela N. Ullman, Deputy Attorney General, argued the cause for respondent New Jersey Civil Service Commission (Christopher S. Porrino, Attorney General, attorney; Todd A. Wigder, Deputy Attorney General, on the Statement in Lieu of a brief).

Respondent City of Newark Fire Department has not filed a brief.

PER CURIAM

On December 10, 2012, appellant Paul Andrade, a firefighter employed by the City of Newark (the City), was arrested for possession of marijuana, N.J.S.A. 2C:35-10(a)(3), possession of marijuana with intent to distribute, N.J.S.A. 2C:35-5(b)(12), and possession of marijuana within five hundred feet of a public park, N.J.S.A. 2C:35-7.1(a). Based on the arrest, the City served Andrade with a preliminary notice of disciplinary action (PNDA) that charged him with, among other things, conduct unbecoming a public employee. N.J.A.C. 4A:2-2.3(a). Following a departmental administrative hearing, the City issued a final notice of disciplinary action (FNDA) that imposed an indefinite suspension, pending resolution of the criminal charges.

Andrade was admitted into the Pre-Trial Intervention Program (PTI).1 The City subsequently served Andrade with an amended PNDA seeking his removal from office, and, after another departmental administrative hearing, the City issued a FNDA on August 16, 2013, removing Andrade from office effective as of the date of his arrest.

Andrade sought further review before the Civil Service Commission (CSC), and the matter was referred to the Office of Administrative Law as a contested case. A hearing took place over five non-consecutive dates during which ten witnesses, including Andrade, testified. The administrative law judge (ALJ) issued her initial decision on November 10, 2014, concluding that the City had proven the charge of conduct unbecoming a public employee but had failed to prove other charges. She also determined that the "underlying conduct warrant[ed] termination."

Andrade filed exceptions with the CSC. In its February 5, 2015 final decision, the CSC accepted and adopted the findings and conclusions of the ALJ and determined Andrade's removal was justified. Andrade filed a timely appeal.

Before us, Andrade argues the CSC's decision was arbitrary, capricious and unreasonable because it "mischaracterized testimony and omitted pertinent testimony," and the specific finding that he intended to distribute marijuana was unsupported by the evidence. He also contends that the CSC failed to consider the City's policy of offering a "last chance agreement" to its employees prior to termination. Lastly, Andrade argues that his due process rights were violated because hearsay statements were admitted during the hearing, and he was not provided with the Essex County Prosecutor's Office (the ECPO) file prior to the hearing.

We have considered these arguments in light of the record and applicable legal standards. We affirm.

Our review of final agency action is quite limited. In re Carter, 191 N.J. 474, 482 (2007). "[I]f in reviewing an agency decision an appellate court finds sufficient credible evidence in the record to support the agency's conclusions, that court must uphold those findings even if the court believes that it would have reached a different result." In re Taylor, 158 N.J. 644, 657 (1999) (citations omitted). We "will reverse the decision of the 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." Ibid. (quoting Henry v. Rahway State Prison, 81 N.J. 571, 581 (1980)).

The ALJ accepted the testimony of ECPO Detective John DeGroot, who detailed a purchase of marijuana from Andrade in October 2012 by a confidential informant. ECPO Detective Joseph A. DiLauri corroborated that information and also detailed an observed sale in December that led to the stop of Andrade's vehicle, its search following Andrade's arrest and the subsequent execution of a search warrant at Andrade's apartment. Marijuana was found in Andrade's car and significant evidence that Andrade was distributing marijuana was found at the apartment.

To be sure, Andrade testified that the marijuana was for his personal use, and other witnesses attempted to poke holes in the detectives' testimony. However, "the choice of accepting or rejecting testimony from witnesses resides with the administrative agency, and so long as that choice is reasonably made it is accorded deference on appeal." Campbell v. N.J. Racing Comm'n, 169 N.J. 579, 588 (2001) (citing Renan Realty Corp. v. State Dep't of Cmty. Affairs, Bureau of Hous. Inspection, 182 N.J. Super. 415, 421 (App. Div. 1981)); and see Logan v. Bd. of Review, 299 N.J. Super. 346, 348 (App. Div. 1997) ("The appellate court must also give due regard to the opportunity of the one who heard the witnesses to judge their credibility.") (citation omitted).

On the critical issue of whether Andrade engaged in the distribution of marijuana, the CSC's decision was supported by sufficient credible evidence on the record as a whole and was not arbitrary, capricious and unreasonable. R. 2:11-3(e)(1)(D).

The remaining arguments advanced by Andrade lack sufficient merit to warrant extensive discussion. R. 2:11-3(e)(1)(E). We add only the following brief comments.

The City had adopted an addendum to its disciplinary policy and procedures in 1992 entitled "Drug Testing Policy." The addendum incorporated the concept of a last chance agreement. See, e.g., Watson v. City of E. Orange, 175 N.J. 442, 444 (2003) (generally explaining these type of agreements). However, the City's policy had no application to this case since it explicitly provided that "[i]t [was] a terminable offense for a City employee to dispense, sell, traffic, or facilitate in the sale of, any controlled dangerous substance or possess any drug paraphernalia."

Andrade contends his due process rights were violated because the CSC's factual findings relied heavily on hearsay admitted during DiLauri's testimony. The alleged offending testimony was DiLauri's rendition of conversations he had with the confidential informant. However, the rules of evidence do not apply to proceedings before administrative agencies. See N.J.R.E. 101(a)(3); N.J.S.A. 52:14B-10(a); N.J.A.C. 1:1-15.5. Moreover, there was sufficient other evidence to support the factual findings, see N.J.A.C. 1:1-15.5(b) (the residuum rule), and Andrade's fundamental procedural rights were not infringed. See,e.g., In re Application of Howard Sav. Bank, 143 N.J. Super. 1, 6-7 (App. Div. 1976) ("[T]he fundamentals of fair and adequate procedure constituting due process," such as cross-examination and rebuttal, "must be observed . . . .").

Finally, Andrade argues his due process rights were violated because he entered PTI without being provided full discovery, and the City used his entry into PTI to issue the FNDA. It suffices to say that there was sufficient, credible evidence that Andrade's suspension and termination were not based on his entry into PTI. Moreover, Andrade admits he received discovery from the ECPO file at trial before the ALJ, albeit shortly before the detectives' testimony. The record does not disclose any adjournment request, and, more importantly, there is no showing of demonstrable prejudice occasioned by the late receipt of the ECPO file.

Affirmed.

1 The criminal complaints were dismissed on March 3, 2015, following Andrade's successful completion of PTI.