BRIAN BUGG v. NEW JERSEY STATE POLICE
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1602-17T3
BRIAN BUGGÉ,
Petitioner-Appellant,
v.
NEW JERSEY STATE POLICE,
Respondent-Respondent.
______________________________
Submitted October 22, 2018 – Decided November 15, 2018
Before Judges Fasciale and Gooden Brown.
On appeal from the Division of the New Jersey State
Police.
Brian Buggé, appellant pro se.
Gurbir S. Grewal, Attorney General, attorney for
respondent (Melissa H. Raksa, Assistant Attorney
General, of counsel; Suzanne M. Davies, Deputy
Attorney General, on the brief).
PER CURIAM
Petitioner Brian Buggé appeals from the October 30, 2017 final agency
decision of the Superintendent of the New Jersey State Police (NJSP). The
Superintendent adopted the initial decision of the Administrative Law Judge
(ALJ), affirming the NJSP's denial of Buggé's application for a security officer
certification, pursuant to the Security Officer Registration Act (SORA), N.J.S.A.
45:19A-4. We affirm.
Pursuant to N.J.S.A. 45:19A-4(a), no person shall "be employed as, or
perform the functions and activities of, a security officer unless that person is
registered with the superintendent [of the NJSP]." Pursuant to N.J.S.A. 45:19A-
4(b), "[a]n application for registration as a security officer shall be filed with the
superintendent on a form and in a manner prescribed by the superintendent and
shall set forth under oath," among other things, "that the applicant has not been
convicted of any disqualifying crime or offense as set forth in subsection (c) of
this section."
Under subsection (c):
No person shall be issued a certificate of registration as
a security officer . . . if the person has been convicted
. . . of: a crime of the first, second, third or fourth
degree; any offense involving the unlawful use,
possession or sale of a controlled dangerous substance
as defined in N.J.S.[A.] 2C:35-2; or any offense where
the registration of the individual would be contrary to
the public interest, as determined by the superintendent.
A-1602-17T3
2
[N.J.S.A. 45:19A-4(c).]
On April 19, 2016, Buggé applied for a security officer certification. After
an investigation, on May 18, 2016, the NJSP denied the application, finding that,
pursuant to N.J.S.A. 45:19A-4(c), Buggé's March 11, 1999 conviction by way
of a guilty plea for a general violation of civil service law in the State of New
York, a misdemeanor offense, disqualified him from obtaining a security officer
certification. The NJSP determined that the New York conviction was
equivalent to a fourth-degree crime in New Jersey. Buggé contested the denial,
and the matter was transmitted to the Office of Administrative Law for a hearing.
N.J.S.A. 52:14B-1 to -15; N.J.S.A. 52:14F-1 to -13.
On August 4, 2017, the ALJ granted the parties' joint application for
summary decision, N.J.A.C. 1:1-12.5, and issued an initial decision affirming
the denial. The ALJ accepted as undisputed facts "that, in 2001, the NJSP had
disqualified [Buggé] from employment with Kroll Associates based upon the
same [1999 New York] conviction." Kroll Associates held a license under the
Private Detective Act of 1939, N.J.S.A. 45:19-8 to -27, pursuant to which it was
prohibited from employing a person convicted of certain offenses specified in
A-1602-17T3
3 N.J.S.A. 45:19-16.1 However, upon Buggé's appeal, the NJSP reversed its
determination and allowed Buggé to continue his employment with Kroll
Associates as an unarmed security guard.
The ALJ also acknowledged Buggé's certificate of relief from disabilities
issued by the State of New York on November 12, 2002. The certificate relieved
Buggé "of all disabilities and bars to employment, excluding the right . . . to be
eligible for public office," arising from the 1999 New York conviction. Further,
the ALJ acknowledged Buggé's receipt of a private investigator license in the
State of New York in 2000, as well as his work history in law enforcement, and
numerous commendations. Buggé's work history included working for the
United States Secret Service while in college, New York City as a corrections
officer for six-and-one-half years, and Suffolk County as a member of their
police department for approximately twenty years.
The ALJ considered Buggé's argument that both New Jersey and Federal
courts have consistently interpreted a crime of the fourth-degree in New Jersey
as equivalent to a felony, rather than a misdemeanor, based on the sentencing
exposure. Thus, according to Buggé, because he was not convicted of a felony
1 N.J.S.A. 45:19-16 prohibits a licensed employer from employing "any person
who has been convicted of a high misdemeanor or . . . [designated]
misdemeanors, or offenses," none of which applied to Buggé.
A-1602-17T3
4
in New York, he was not convicted of a fourth-degree crime for purposes of
SORA, and was not subject to disqualification. Buggé argued further that
N.J.S.A. 45:19A-4(c) does not expressly address convictions of comparable
offenses in other states. Buggé also relied on his ability to obtain firearms carry
licenses and private investigator certifications in other states, and maintain
various positions in law enforcement to support his arguments.
In rejecting Buggé's arguments, the ALJ concluded that "although the
statute does not expressly provide for 'equivalent' offenses in other states, [he
was] persuaded that the crime for which [Buggé] was convicted [was] sufficient
to meet the standard established by New Jersey's regulatory scheme." Thus, the
ALJ "concur[red] with the NJSP's determination that it [was] in the public
interest to deny this application."
Buggé filed exceptions to the ALJ's initial decision with the
Superintendent. In his final agency decision adopting the ALJ's decision, the
Superintendent explained:
Notwithstanding Mr. Buggé's argument, his conviction
in New York, for a General Violation of Civil Service
Law, equates to a criminal violation of the fourth[-
]degree pursuant to New Jersey law. Specifically,
N.J.S.A. 11A:10-2, which provides:
Any person who purposely or knowingly
violates or conspires to violate any
A-1602-17T3
5
provision of this title (Civil Service) or
Civil Service Commission order shall be
guilty of a crime of the fourth degree.
The New Jersey Civil Service law and
regulations apply to a variety of circumstances,
including the administration and security of
examinations. [See, e.g.,] N.J.S.A. 11A:4-1; N.J.A.C.
4A:4-2.10. Mr. Buggé's conviction related to a
preparatory class that he taught to police candidates. In
particular, the material that Mr. Buggé provided to the
class in preparation for the examination. Therefore, in
light of this statutory equivalency, the prohibition to
obtaining a Security Officer Certification for a
conviction of a fourth[-]degree crime, set out in
N.J.S.A. 45:19A-4(c), is applicable to this matter.
The Superintendent also rejected Buggé's argument that a recently enacted
New York law, N.Y. Crim. Proc. Law § 160.59, permitting the sealing of certain
criminal convictions, dictated a different outcome. According to the
Superintendent, "the statute provides that the sealed records remain available to
'qualified agencies,'" such as NJSP, "'acting within the scope of their law
enforcement duties.'" This appeal followed.
On appeal, Buggé renews the arguments presented to the ALJ and the
Superintendent, contending that the denial of his application based on his 1999
New York conviction was "arbitrary, capricious and unreasonable." We
disagree.
A-1602-17T3
6
We set out the well-known guideposts for our review of the
Superintendent's final agency decision. "Appellate courts have 'a limited role'
in the review of such decisions." In re Stallworth, 208 N.J. 182, 194 (2011)
(quoting Henry v. Rahway St. Prison, 81 N.J. 571, 579 (1980)). "[W]e do not
ordinarily overturn such a decision 'in the absence of a showing that it was
arbitrary, capricious or unreasonable, or that it lacked fair support in the
evidence.'" In re Carter, 191 N.J. 474, 482 (2007) (quoting Campbell v. Dep't
of Civ. Serv., 39 N.J. 556, 562 (1963)).
Indeed,
the judicial role is generally restricted to three
inquiries: (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.
[Mazza v. Bd. of Trs., 143 N.J. 22, 25 (1995).]
"When an agency's decision meets those criteria, then a court owes
substantial deference to the agency's expertise and superior knowledge of a
particular field." In re Herrmann, 192 N.J. 19, 28 (2007). "[I]f substantial
evidence supports the agency's decision, 'a court may not substitute its own
A-1602-17T3
7
judgment for the agency's even though the court might have reached a different
result.'" Carter, 191 N.J. at 483 (quoting Greenwood v. St. Police Training Ctr.,
127 N.J. 500, 513 (1992)). However, we are "in no way bound by the agency's
interpretation of a statute or its determination of a strictly legal issue." Ibid.
(quoting Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85, 93 (1973)).
Guided by these principles, we cannot conclude that the Superintendent's
decision disqualifying Buggé under N.J.S.A. 45:19A-4(c), based on his 1999
New York conviction for a misdemeanor offense, was "arbitrary, capricious or
unreasonable, or that it lacked fair support in the evidence." Carter, 191 N.J. at
482. We conclude that Buggé's contrary arguments are without sufficient merit
to warrant discussion in a written opinion, R. 2:11-3(e)(1)(E), and we affirm
substantially for the reasons expressed in the Superintendent's comprehensive
written decision. R. 2:11-3(e)(1)(D).
Affirmed.
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