JUAN VILLALOBOS v. NEW JERSEY STATE PAROLE BOARD

NOT FOR PUBLICATION WITHOUT THE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 binding only 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-1605-16T4

JUAN VILLALOBOS,

              Appellant,

v.

NEW JERSEY STATE PAROLE BOARD,

          Respondent.
__________________________________

              Argued May 30, 2018 – Decided June 12, 2018

              Before Judges Fisher, Moynihan and Natali.

              On appeal from the Civil Service Commission,
              CSC Docket No. 2015-3042.

              Sanford R. Oxfeld argued the cause for
              appellant (Oxfeld Cohen, PC, attorneys;
              Sanford R. Oxfeld, of counsel; John Branigan,
              on the brief).

              Gregory R. Bueno, Deputy Attorney General,
              argued the cause for respondent New Jersey
              State Parole Board (Gurbir S. Grewal, Attorney
              General, attorney; Melissa Dutton Schaffer,
              Assistant Attorney General, of counsel;
              Gregory R. Bueno and Suzanne Davies, Deputy
              Attorney General, on the brief).

              Gurbir S. Grewal, Attorney General, attorney
            for respondent New Jersey Civil Service
            Commission (Debra A. Allen, Deputy Attorney
            General, on the statement in lieu of brief).

PER CURIAM

     Juan Villalobos appeals from a final determination of the

Civil Service Commission (Commission) terminating his position as

a senior parole officer with the New Jersey State Parole Board

(Board) for misappropriating union funds.            The Commission adopted

the decision of the Administrative Law Judge (ALJ).             We affirm.

     Because ALJ Thomas R. Betancourt comprehensively detailed the

relevant factual and procedural history in his written opinion,

we briefly recount those facts necessary to provide context for

our decision.

     Villalobos was a parole officer with the Board from 1994 to

2013.      During   that   period,    he    also   held   numerous    executive

positions with his union, Police Benevolent Association (PBA)

Local   326,    including        recording    secretary,     vice-president,

president and state delegate.          On December 9, 2013, the Bergen

County Prosecutor charged Villalobos with theft by deception for

improperly withdrawing $5270 in union funds to pay personal legal

expenses    related   to   his    divorce    and   current   family   members'

immigration issues.

     The next day, the Board issued an initial Preliminary Notice

of Disciplinary Action (PNDA) and suspended Villalobos with pay

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pending a Loudermill1 hearing for conduct unbecoming a public

employee in violation of N.J.A.C. 4A:2-2.3.                          The PNDA identified

the specific criminal and administrative charges and notified

Villalobos that he was in "jeopardy of removal" because of his

"indictment"2 by the Bergen County Prosecutor.

      Less    than    a     week       later,       Villalobos       participated        in    a

Loudermill hearing.          The hearing officer issued a written decision

the same day.        Like the PNDA, the decision detailed the charges

and informed Villalobos that he was at risk of being removed from

his employment with the Board.                  He also concluded that there was

sufficient evidence to suspend Villalobos with pay pending a formal

disciplinary hearing.           Villalobos was served with a copy of the

hearing officer's decision.

      Villalobos      was    accepted       into          the   Bergen   County   Pretrial

Intervention         (PTI)     Program              and     ordered      to   repay         the

misappropriated funds.          He was granted an early release of PTI and

his record was expunged.

      The    Board    issued       a    second        PNDA      on   September    2,     2014.

Villalobos was again notified that he was charged with conduct




1
    Cleveland Bd. of Educ. v. Loudermill, 
470 U.S. 532, 546 (1985).
2
  As criminal proceedings were initiated by summons and complaint,
the PNDA's reference to an indictment was in error.

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unbecoming a public employee and that he could lose his job because

of the charges that led to his arrest.

     Next, the Board held a formal disciplinary hearing.                     The

hearing officer concluded Villalobos' conduct was unbecoming of a

public employee in violation of N.J.A.C. 4A:2-2.3(a)(6), (11), and

recommended Villalobos be terminated from his position as a parole

officer.   The Board issued a Final Notice of Disciplinary Action

(FNDA) affirming the conduct unbecoming charge and Villalobos'

firing.    Villalobos appealed his termination and the matter was

transferred   to    the   Office   of   Administrative       Law   (OAL)   as    a

contested case.

     The ALJ presided over a five-day hearing.                 He considered

testimony from twelve witnesses and examined documentary evidence

introduced by the parties including five unauthorized checks that

formed the basis of the charges.

     The ALJ determined that four of the checks — nos. 2016, 2017,

2560 and 2937 — were issued from 2008 to 2010 to Anayancy R.

Hausman, Esq., an immigration attorney working with Villalobos'

current wife's family.       The last check at issue — no. 2612 — was

issued on January 6, 2010, in the amount of $3000 and made payable

to Charles C. Abut, Esq., Villalobos' divorce mediator.

     Before   the   ALJ,   Villalobos       defended   his   conduct   not      by

claiming the disputed funds were appropriately related to union

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business — he conceded the money was used for personal legal

expenses — rather, he maintained the checks were authorized and

issued consistent with then existing PBA Local 326 practices and

procedures.      Two witnesses played a critical role at trial on this

central point: Villalobos and Kenneth Metallides, a senior parole

officer and former PBA Local 326 treasurer.

       Metallides testified that PBA Local 326 maintained general,

political action committee, and annuity accounts.              He stated that

the    union's    regular   and    ordinary      practice   required     checks

exceeding $500 issued from the union's accounts to be presented

to the executive board for approval and signed by the treasurer

and either the president or the state delegate.             Metallides stated

that it was his practice as treasurer to leave behind both signed

and unsigned blank checks when he went on vacation.                In December

2009, he left signed, blank checks with Villalobos, but expected

that   they   would    be   used   for       "[u]nion   expenses   or   [u]nion

expenditures" and only in an emergency.

       Metallides testified that upon returning from vacation in

January, he noticed that Villalobos had issued multiple checks in

his absence, including check no. 2612, a pre-signed check that

Villalobos co-signed.       According to Metallides, check no. 2612 was

disbursed contrary to union policies as it was issued without his

or the board's approval.

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       Metallides testified that he emailed Villalobos concerning

check no. 2612 and other checks written from the general account

and asked for documentation supporting the expenditures.             He also

verbally asked Villalobos for clarification as to the purpose of

check no. 2612.     Villalobos responded that check no. 2612 related

to an arbitration.     Metallides understood Villalobos' explanation

to mean that the check was a union expenditure for an arbitrator,

a common practice.

       Villalobos testified that the checks at issue were approved

in a manner consistent with PBA Local 326's practices and that

check no. 2612 was a loan.         He confirmed that if a member requests

funds from the union's accounts, the item was placed on the meeting

agenda for discussion and vote.              If approved, a check was issued

and    the   transaction   noted    in   the    meeting   minutes.   He   also

maintained that the minutes would confirm the board authorized the

expenditures reflected in the checks.3

       Villalobos disputed Metallides' testimony that he regularly

left blank, signed checks behind when he went on vacation.                  He

stated that Metallides knowingly signed the disputed checks and

maintained check no. 2612 was presented to the executive board for




3
    Neither party offered into evidence any of the board minutes.

                                         6                           A-1605-16T4
approval.     Villalobos     denied       having     received    the     email   from

Metallides inquiring into checks written from the general account.

     In his written decision, the ALJ determined that the Board

met its burden of proof by a preponderance of the competent and

credible evidence.        He characterized Metallides' testimony as

"compelling" and found him to be an "extremely credible" witness.

The ALJ specifically deemed his testimony regarding leaving signed

blank checks in his office while on vacation "very credible."

     Conversely,    the      ALJ    did       not   believe     Villalobos.         He

characterized his testimony as "disingenuous" and observed that

he did not respond directly to questions but rather "seemed to

spin [his] answers."          The ALJ based his adverse credibility

findings in part on Villalobos' "not believable" testimony that

he failed to receive Metallides' email regarding check no. 2612.

He further concluded that Villalobos' testimony that the $3000

check   was   brought   to    the    attention       of   the    board    "defie[d]

credulity" as Metallides was on vacation at the time the check was

issued and no executive meeting was scheduled.

     The ALJ considered Villalobos' conduct in the context of his

status as a law enforcement officer which required Villalobos to

be held "to a higher standard."           In affirming the decision of the

hearing officer, the ALJ substantiated the charge of conduct

unbecoming a public official warranting termination:

                                          7                                  A-1605-16T4
            It is abundantly clear from the record that
            [Villalobos] used [PBA Local] 326's account
            to pay personal legal expenses related to his
            divorce and for the family of his future wife.
            [Villalobos] was appropriately charged with
            theft by deception in violation of N.J.S.A.
            2C:20-4.   Notwithstanding that [Villalobos]
            entered into PTI, received early termination
            of PTI and had the record expunged, the
            underlying fact that [he] misused union funds
            is more than sufficient to sustain a finding
            of conduct unbecoming a public employee. It
            is also a sustained charge[] that warrants a
            penalty of removal.

On November 15, 2016, the Commission adopted the ALJ's findings

of fact and conclusions of law.

     On appeal, Villalobos contends the decision of the Commission

was not supported by a preponderance of the competent and credible

evidence and that he was not sufficiently put on notice of the

charges against him.    We disagree.

     Appellate review of an administrative agency decision is

limited.     In re Herrmann, 
192 N.J. 19, 27 (2007).              A strong

presumption    of   reasonableness       attaches   to   the   Commission's

decision.     In re Carroll, 
339 N.J. Super. 429, 437 (App. Div.

2001).      Appellant has the burden to demonstrate grounds for

reversal.    McGowan v. N.J. State Parole Bd., 
347 N.J. Super. 544,

563 (App. Div. 2002).

     Appellate courts generally defer to final agency actions,

only "reversing those actions if they are 'arbitrary, capricious


                                     8                              A-1605-16T4
or unreasonable or [if the action] is not supported by substantial

credible evidence in the record as a whole.'"           N.J. Soc'y for the

Prevention of Cruelty to Animals v. N.J. Dep't of Agric., 
196 N.J.
 366, 384-85 (2008) (quoting Henry v. Rahway State Prison, 
81 N.J.
 571, 579-80 (1980) (alteration in original)). Under the arbitrary,

capricious, and unreasonable standard, our scope of review is

guided by three major inquiries: (1) whether the agency's decision

conforms with the relevant law; (2) whether the decision is

supported by substantial credible evidence in the record; and (3)

whether in applying the law to the facts, the administrative agency

clearly erred in reaching its conclusion.          In re Stallworth, 
208 N.J. 182, 194 (2011).

     When an agency decision satisfies such criteria, we accord

substantial   deference    to   the   agency's   fact-finding   and   legal

conclusions, acknowledging the agency's "expertise and superior

knowledge   of   a   particular   field."      Circus   Liquors,   Inc.    v.

Governing Body of Middletown Twp., 
199 N.J. 1, 10 (2009) (quoting

Greenwood v. State Police Training Ctr., 
127 N.J. 500, 513 (1992)).

We will not substitute our judgment for the agency's even though

we might have reached a different conclusion.             Stallworth, 
208 N.J. at 194; see also In re Taylor, 
158 N.J. 644, 656 (1999).

     Our deference to agency decisions "applies to the review of

disciplinary sanctions as well."          Herrmann, 
192 N.J. at 28.       "In

                                      9                             A-1605-16T4
light of the deference owed to such determinations, when reviewing

administrative    sanctions,   'the    test   .   .    .   is   whether   such

punishment is so disproportionate to the offense, in light of all

the circumstances, as to be shocking to one's sense of fairness.'"

Id. at 28-29 (quoting In re Polk, 
90 N.J. 550, 578 (1982)).

     After thoroughly reviewing the record in light of the legal

principles and the standard of review, we are satisfied that the

Commission's     decision   was   not     arbitrary,        capricious       or

unreasonable and was supported by substantial credible evidence

in the record.      According deference to the ALJ's credibility

determinations, there is substantial evidence in the record to

support the ALJ's factual findings and legal conclusions, which

the Commission adopted.        Further, we conclude the penalty of

termination of a public officer who misappropriates union funds

for personal use was not so wide of the mark to justify our

substitution of the Commission's judgment.            See In re Carter, 
191 N.J. 474, 485 (2007) (recognizing that appellate courts have upheld

the removal of public officials "where the acts charged, with or

without any prior discipline, have warranted the imposition of

that sanction").

     With respect to Villalobos' claim that he received inadequate

notice of the charges, the ALJ correctly concluded that the initial

PNDA adequately informed Villalobos of the charges and the Board's

                                  10                                  A-1605-16T4
incorrect characterization of the summons and complaint as an

"indictment" did not render the notice deficient.    Specifically,

the PNDA outlined Villalobos' criminal and administrative charges

and notified him that he was in jeopardy of being fired.   Further,

the ALJ astutely noted that Villalobos received a second PNDA and

participated in a Loudermill hearing.     Both the second PNDA and

the decision stemming from the Loudermill hearing indicated that

Villalobos could be dismissed as a parole officer as a result of

his alleged criminal behavior.   The notice here was significantly

more detailed than that provided to the public employee in Town

of West New York v. Bock, 
38 N.J. 500 (1962).    In that case, the

PNDA did not advise the employee of the penalty of removal and the

Commission considered actions outside the scope of the charges

listed in the PNDA.

     In light of the information contained in the multiple PNDAs

and presented at the Loudermill hearing, the ALJ appropriately

determined that Villalobos was provided with sufficient notice of

the charges to prepare a defense and was given all the process he

was due.   See Bock, 
38 N.J. at 520-21.

     To the extent not addressed, Villalobos' remaining arguments

lack sufficient merit to warrant discussion in a written opinion.

R. 2:11-3(e)(1)(E).

     Affirmed.

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