IN THE MATTER OF FERNANDO SANCHEZ

NOT FOR PUBLICATION WITHOUT THE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-1617-15T1

IN THE MATTER OF FERNANDO
SANCHEZ, CITY OF PLAINFIELD
POLICE DEPARTMENT.
_____________________________

           Submitted January 18, 2018 – Decided February 13, 2018

           Before Judges Currier and Geiger.

           On appeal from the Civil Service Commission,
           Docket No. 2015-1019.

           Alan Dexter Bowman, attorney for appellant
           Fernando Sanchez.

           Gurbir S. Grewal, Attorney General, attorney
           for respondent Civil Service Commission
           (Melissa H. Raksa, Assistant Attorney General,
           of counsel; Melanie R. Walter, Deputy Attorney
           General, on the statement in lieu of brief).

           Rainone Coughlin Minchello, LLC, attorneys for
           respondent City of Plainfield (Amanda E.
           Miller, of counsel; Brian P. Trelease, on the
           brief).

PER CURIAM

     Fernando Sanchez, a police officer with the City of Plainfield

Police Department, appeals from the Civil Service Commission's

(the Commission) October 7, 2015 final agency decision, upholding
Sanchez's removal from employment for engaging in sexual acts with

a civilian in his marked police car, while on duty.    We affirm.

      The parties stipulate to the following facts pertinent to

this appeal:

                1.   On May 9, 2013, Plainfield Police
           Officer Fernando Sanchez was interviewed by
           the Union County Prosecutor's Office in
           connection with a criminal investigation
           involving Sergeant Samuel Woody.

                2.   The victim in the Sergeant Woody
           Investigation was civilian, K.C.1

                3.   During the interview with Officer
           Sanchez, he revealed that he had a previous
           sexual relationship with K.C. and they had sex
           while on duty.

                4. During the interview, when asked if
           he had sexual relations in his patrol car,
           Office Sanchez said, "I honestly don't think
           so."

                5.    When Lt. Troy Edwards took over
           control of Plainfield's [Internal Affairs]
           section, in November of 2013, from discussions
           with Sgt. Gray and Det. Barrio at the time,
           he became aware as to their knowledge of the
           statement to the Prosecutor's Office by
           Officer Sanchez and of the fact that it was a
           basis for possible charges against Officer
           Sanchez.

                6.    At the conclusion of the Woody
           criminal trial on April 9, 2014, Internal
           Affairs Sergeant Gray was provided with the
           transcript of the Union County Prosecutor's
           interview with Officer Sanchez.


1
    We identify the victim by initials to protect her identity.

                                 2                          A-1617-15T1
                  . . . .

                 9.   On May 7, 2014, Internal Affairs
            Detective Nora Berrio interviewed Officer
            Sanchez and obtained a sworn statement from
            him.

                 10.    During the May 7, 2014 Internal
            Affairs interview, Detective Barrio asked
            Officer   Sanchez,   "Did   you  have sexual
            intercourse     with     [K.C.]    in   your
            marked/unmarked police vehicle?"

                  11.   Officer Sanchez responded, "No."

                 12.    On May 9, 2014 Officer Sanchez
            requested to give, and gave a second interview
            to Detective Berrio which produced a second
            sworn statement.

                 13.   During the May 9, 2014 statement,
            Officer Sanchez admitted that he had sex with
            [K.C.] in his patrol car.

      On May, 17, 2014, Sanchez received a Preliminary Notice of

Disciplinary      Action    (PNDA)    charging      him   with    the    following

violations of Division rules and regulations: (1) failing to

conduct himself in accordance with high ethical standards on and

off-duty, 3.1.6; (2) violating his duties, 4.1.1; (3) failing to

obey all applicable Federal and State laws, City ordinances, rules,

policies,   procedures,      and     directives,     4.1.3;      (4)    failure    to

disclose pertinent information in a report, 4.3.3; (5) engaging

in   prohibited    activities,       4.6.4;   (6)    failure      to    truthfully

disclose pertinent information in reports, 4.12.6; (7) conduct

subversive to the good order and discipline of the division,

                                        3                                   A-1617-15T1
6.2.22; (8) failure to remove keys from a City vehicle when

unattended, 6.2.400; and (9) allowing an unauthorized person in a

radio car, 6.2.59.

     The PNDA also charged Sanchez with the following violations

of the New Jersey Administrative Code: (1) conduct unbecoming a

public     employee,   N.J.A.C.    4A:2-2.3(a)(6);    misuse   of     public

property, N.J.A.C. 4A:2-2.3(a)(8); and other sufficient cause,

N.J.A.C. 4A:2-2.3(a)(12).

     On September 23, 2014, Sanchez received a Final Notice of

Disciplinary Action (FNDA) removing Sanchez effective September

22, 2014.     Sanchez appealed his removal to the Commission.             The

parties agreed the matter could be decided in the Office of

Administrative Law (OAL) without an evidentiary hearing on cross-

motions for summary judgment because there were no genuine issues

as to any material fact.         The City did not pursue any charges of

untruthfulness before the administrative law judge (ALJ).

     The    parties    further    stipulate   that   the   alleged    sexual

activities, which form the basis of the complaints against Officer

Sanchez, occurred prior to July 24, 2011.             In addition, they

stipulate that Sanchez had been suspended on one prior occasion,

receiving a forty-hour suspension on unrelated charges.

     On September 14, 2015, ALJ Leslie Z. Celentano issued a

detailed twenty-four page written initial decision: (1) dismissing

                                      4                              A-1617-15T1
charges   four,   six,   and   eight;    (2)   denying   dismissal   of   the

remaining charges as time-barred or without sufficient basis; (3)

denying consolidation of the charges 1, 2, 3, 5, 7, 9, 10, 11, and

12; (4) upholding the removal of Sanchez based on the City proving

the remaining charges; (5) denying an award of back pay; and (6)

denying a stay of penalties.

     On October 7, 2015, the Commission adopted the ALJ's findings

of fact and conclusions.        Finding the removal of Sanchez to be

justified, the Commission affirmed that action and dismissed the

appeal.   This appeal followed.

     On appeal, Sanchez argues the Commission erred in affirming

his removal from employment because a substantial suspension,

rather than removal, was warranted.            Sanchez further argues the

charges should have been dismissed because they were time-barred

by 
N.J.S.A. 40A:14-147, did not have a sufficient basis, and should

have been consolidated because they were predicated on a single

event.

                                    I.

     "The scope of [our] review is limited.              An administrative

agency's final quasi-judicial decision will be sustained unless

there is a clear showing that it is arbitrary, capricious, or

unreasonable, or that it lacks fair support in the record."                 In

re Herrmann, 
192 N.J. 19, 27-28 (2007) (citations omitted).                 We

                                    5                                A-1617-15T1
accord the agency's decision substantial deference "even if [we]

would have reached a different result in the first instance."             Id.

at 28.   That deference extends to decisions relating to employee

discipline and punishment, including termination.         Ibid.; see also

In re Carter, 
191 N.J. 474, 486 (2007).         An agency head's choice

of sanction is a matter of broad discretion, particularly where

considerations of public policy are implicated.         Division of State

Police v. Jiras, 
305 N.J. Super. 476, 482 (App. Div. 1997).

     We affirm substantially for the reasons expressed by ALJ

Celentano in her comprehensive and well-reasoned initial decision,

which were accepted and adopted by the Commission.            We add only

the following comments.

     Sanchez   argues   the   charges   were   time-barred    by    
N.J.S.A.

40A:14-147, which provides:

            A complaint charging a violation of the
            internal rules and regulations established for
            the conduct of a law enforcement unit shall
            be filed no later than the [forty-fifth] day
            after the date on which the person filing the
            complaint obtained sufficient information to
            file the matter upon which the complaint is
            based.

     The ALJ concluded the forty-five-day period did not commence

until May 9, 2014, when Sanchez admitted he had sex with K.C. in

his patrol car.       The record supports the ALJ's finding that

Sanchez's    false   statements   to    investigators    of   the     County


                                   6                                 A-1617-15T
1 Prosecutor on May 9, 2013, and to the Internal Affairs investigator

on   May     7,   2014,   "delayed      revelation    of   the   severity    of    his

behavior" because Sanchez "effectively concealed his conduct from

investigators."           Therefore, the City did not have "sufficient

information" to file the charges until Sanchez revealed the extent

of his misconduct on May 9, 2014. The ALJ also correctly concluded


N.J.S.A. 40A:14-147 did not apply to the Administrative Code

violations.       Accordingly, the charges are not time-barred.

       Sanchez further argues his misconduct did not warrant removal

from       office,   contending      a    substantial      suspension       was    the

appropriate penalty.         We disagree.

       A    reviewing     court   may    "alter   a   sanction    imposed     by    an

administrative agency only 'when necessary to bring the agency's

action into conformity with its delegated authority.                    The Court

has no power to act independently as an administrative tribunal

or to substitute its judgment for that of the agency.'"                 Herrmann,


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

"[W]hen 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 Polk, 
90 N.J. at 578)

(citations omitted). Moreover, an agency's choice of discipline

"is made weightier when, as in this instance, it is the penalty

                                           7                                 A-1617-15T1
imposed by the appointing authority and affirmed by the ALJ."                Id.

at 36.

     "Our    appellate    courts    .   .   .   have    upheld   dismissal     of

employees,   without     regard    to   whether   the    employees    have   had

substantial past disciplinary records, for engaging in conduct

that is unbecoming to the position."            Id. at 34. As the Court has

explained:

            [P]rogressive discipline is not "a fixed and
            immutable   rule   to  be   followed   without
            question"    because     "some    disciplinary
            infractions are so serious that removal is
            appropriate    notwithstanding    a    largely
            unblemished prior record." "Thus, progressive
            discipline has been bypassed when an employee
            engages in severe misconduct, especially when
            the employee's position involves public safety
            and the misconduct causes risk of harm to
            persons or property."

            [In re Stallworth, 
208 N.J. 182, 196-97 (2011)
            (citations omitted).]

     Law enforcement officers are held to a higher standard of

responsibility    and     conduct       than    other     public     employees.

Moorestown v. Armstrong, 
89 N.J. Super. 560, 566 (App. Div. 1965).

"Nor can a police officer complain that he or she is being held

to an unfairly high standard of conduct.               Rather, 'it is one of

the obligations he undertakes upon voluntary entry in the public

service.'"    In re Phillips, 
117 N.J. 567, 577 (1990) (quoting In

re Emmons, 
63 N.J. Super. 136, 142 (App. Div. 1960)).


                                        8                               A-1617-15T1
      Although progressive discipline is a recognized and accepted

principle, incremental discipline does not have to be applied in

every disciplinary setting.       Herrmann, 
192 N.J. at 33.             "Instead,

we have recognized that some disciplinary infractions are so

serious that removal is appropriate notwithstanding a largely

unblemished prior record."       Carter, 
191 N.J. at 484.         As explained

by the Court in Herrmann,

             progressive discipline is not a necessary
             consideration when reviewing an agency head's
             choice of penalty when the misconduct is
             severe, when it is unbecoming to the
             employee's position or renders the employee
             unsuitable for continuation in the position,
             or when application of the principle would be
             contrary to the public interest.

             [
192 N.J. at 33.]

      Sanchez's improper conduct was sufficiently egregious and

unbecoming to his office so as to warrant removal even if he had

no   prior   disciplinary     history.      Here,      however,   Sanchez       had

previously    served   a   forty-hour    suspension.        The   Commission's

determination that Sanchez's removal was justified is supported

by   substantial   credible    evidence     in   the    record    and    was    not

arbitrary, capricious, or unreasonable.

      Sanchez's    remaining    arguments    lack      sufficient       merit    to

warrant discussion in a written opinion.            R. 2:11-3(e)(1)(D).

      Affirmed.


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