INTHE MATTER OF SEAN LAVIN MERCER COUNTY SHERIFF'S DEPARTMENT

 


                      NOT FOR PUBLICATION WITHOUT THE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-1802-15T1


IN THE MATTER OF SEAN LAVIN,
MERCER COUNTY SHERIFF'S
DEPARTMENT.
______________________________

           Submitted January 25, 2018 – Decided July 17, 2018

           Before    Judges    Simonelli,     Haas    and   Gooden
           Brown.

           On appeal from the Civil Service Commission,
           Docket No. 2014-1760.

           Fusco & Macaluso Partners, LLC, attorneys for
           appellant Sean Lavin (Amie E. DiCola, on the
           brief).

           Arthur R. Sypek, Jr., Mercer County Counsel,
           attorney   for   respondent  Mercer   County
           Sheriff's Department (Kristina E. Chubenko,
           Assistant County Counsel, of counsel and on
           the brief).

           Gurbir S. Grewal, Attorney General, attorney
           for respondent Civil Service Commission
           (Valentina   M.  DiPippo,   Deputy   Attorney
           General, on the statement in lieu of brief).

PER CURIAM

     Sean Lavin, a former Mercer County Sheriff's Officer, appeals

from the November 19, 2015 final agency decision of the Civil
Service Commission (Commission), adopting the Administrative Law

Judge's    (ALJ)   initial     decision       upholding   the   Mercer        County

Sheriff's Department's (Department) indefinite suspension of Lavin

without pay following the filing of criminal charges against him.

We affirm.

     On December 12, 2013, while employed as a Mercer County

Sheriff's Officer, Lavin was charged in a criminal complaint with

two counts of second-degree official misconduct, 
N.J.S.A. 2C:30-

2(a).   The complaint arose out of allegations that on December 6,

2013, Lavin pepper sprayed "an arrestee in the face while she was

handcuffed   behind    her    back"     and    subsequently     filed    a     false

investigation      report    in    connection      with   the    incident         and

"attempted to cause subordinate officers" to do the same.

     Based on the criminal complaint, on December 12, 2013, the

Department issued a Notice of Informal Pre-Termination Hearing

(NIPH), charging Lavin with conviction of a crime, N.J.A.C. 4A:2-

2.3(a)(5); conduct unbecoming a public employee, N.J.A.C. 4A:2-

2.3(a)(6); and other sufficient cause, N.J.A.C. 4A:2-2.3(a)(12),

specifically "[i]nappropriate physical contact or mistreatment of

a patient, client, resident, or employee."            Lavin waived his right

to an informal pre-termination hearing.

     The   following    day,      the   Department    served    Lavin        with    a

Preliminary Notice of Disciplinary Action (PNDA), incorporating

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the charges contained in the NIPH and seeking his removal and

immediate indefinite suspension pending resolution of the criminal

charges.    After Lavin waived his right to a departmental hearing,

the Department issued a Final Notice of Disciplinary Action (FNDA),

suspending    Lavin   indefinitely,   effective   December   13,     2013,

pending the resolution of the criminal charges.        On January 15,

2014, Lavin filed a timely appeal, which was transmitted to the

Office of Administrative Law (AOL) as a contested case on January

24, 2014.

     On May 15, 2014, Lavin was indicted by a Mercer County Grand

Jury based on the December 6, 2013 incident, and charged with

three counts of second-degree official misconduct, 
N.J.S.A. 2C:30-

2(a), and one count of third-degree tampering with public records

or information, 
N.J.S.A. 2C:28-7(a)(1).      On October 20, 2014, on

Lavin's motion, the indictment was dismissed without prejudice,

and on December 10, 2014, Lavin was re-indicted on the same

charges.

     On February 27, 2015, over Lavin's objection, the Department

moved for summary disposition, seeking the dismissal of Lavin's

administrative appeal based upon the pending criminal charges,

and, at Lavin's request, the ALJ held the record open to allow

Lavin to resolve the charges.         On October 5, 2015, Lavin was

admitted into the Pre-Trial Intervention Program (PTI) for a period

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of eighteen months, subject to the condition that he resign from

his position as a Mercer County Sheriff's Officer effective October

2, 2015, and not seek future employment with Mercer County.     Lavin

resigned his position, effective October 2, 2015,1 and the ALJ

closed the record on October 27, 2015, upon receipt of the PTI

order.

      In an initial decision issued on October 29, 2015, the ALJ

granted   the   Department's   motion   for   summary   disposition.

Preliminarily, the ALJ noted that "[a] summary decision motion is

the administrative law equivalent of a summary judgment motion"

and could be granted where, as here, "there are no 'genuine

disputes' of 'material fact.'"2      Next, acknowledging that the

merits of the underlying charges were not at issue in the appeal,

the ALJ determined that, pursuant to N.J.A.C. 4A:2-2.7(a)(1),

"[t]he sole issue before [him] [was] whether the public interest

would best be served by suspending the employee until disposition

of the criminal indictment."   The ALJ concluded the Department had



1 On November 4, 2016, an order was entered dismissing the
indictment upon Lavin's successful completion of the PTI program.

2 Under N.J.A.C. 1:1-12.5(b), the standard for a State agency's
decision to grant a motion for summary decision is "substantially
the same as that governing a motion" for summary judgment by a
trial court under Rule 4:46-2. Contini v. Bd. of Educ. of Newark,

286 N.J. Super. 106, 121 (App. Div. 1995).



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presented    sufficient    evidence       to    support    Lavin's    indefinite

suspension and recommended dismissal of the appeal.3

     Thereafter, Lavin filed exceptions to the ALJ's decision.                    On

November 19, 2015, the Commission issued a final decision adopting

the ALJ's findings, conclusions, and recommendation, and dismissed

the appeal.    This appeal followed.            On appeal, Lavin presents the

following argument for our consideration:

            THE COURT SHOULD REVERSE THE CIVIL SERVICE
            COMMISSION'S   FINAL   ADMINISTRATIVE   ACTION
            BECAUSE THE COMMISSION'S DECISION TO SUMMARILY
            DISPOSE OF SGT. LAVIN'S APPEAL WAS ARBITRARY
            AND CAPRICIOUS AS IT WAS MANIFESTLY MISTAKEN
            AND NOT SUPPORTED BY THE RECORD.      AS SUCH,
            SGT. SEAN LAVIN IS ENTITLED TO A FULL HEARING
            ON THE ISSUE OF WHETHER HE WAS PROPERLY
            SUSPENDED IN ACCORDANCE WITH [N.J.A.C.] 4A:2-
            2.7.

     Our    review   of   an   agency's    decision       is   limited.     In    re

Stallworth, 
208 N.J. 182, 194 (2011).                 We "afford[] a 'strong

presumption    of    reasonableness'       to    an   administrative      agency's

exercise of its statutorily delegated responsibilities."                   Lavezzi

v. State, 
219 N.J. 163, 171 (2014) (quoting City of Newark v. Nat.

Res. Council, Dep't of Envtl. Prot., 
82 N.J. 530, 539 (1980)).

Thus, a reviewing court "should not disturb an administrative

agency's determinations or findings unless there is a clear showing


3
  The ALJ noted that "[i]f the criminal charges did not result in
a forfeiture of office, the [Department] would be required to
issue a second [PNDA] specifying the charges" for Lavin's removal.

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that (1) the agency did not follow the law; (2) the decision was

arbitrary, capricious, or unreasonable; or (3) the decision was

not supported by substantial evidence."          In re Virtua-West Jersey

Hosp. Voorhees for a Certificate of Need, 
194 N.J. 413, 422 (2008).

While "we are not bound by the agency's interpretation of a statute

or resolution of a question of law[,]" In re Carroll, 
339 N.J.

Super.     429,    437   (App.   Div.   2001),   nonetheless,    the     party

challenging the agency's action has the burden of proving the

action was arbitrary, capricious, or unreasonable.              Lavezzi, 
219 N.J. at 171.

     Lavin argues the ALJ gave no consideration to "whether [he]

received a proper departmental hearing, whether the [Department]

failed to address the administrative charges after the dismissal

of the first indictment, and whether there existed genuine issues

of material fact," by virtue of the "varying accounts of what

occurred" during the December 6, 2013 incident.            As such, Lavin

asserts,    "the    resulting    [f]inal    [a]dministrative    [a]ction      is

correspondingly defective."        We disagree.

     
N.J.S.A. 11A:2-13 provides for

            the immediate suspension of an employee
            without a hearing if the appointing authority
            determines that the employee is unfit for duty
            or is a hazard to any person if allowed to
            remain on the job or that an immediate
            suspension is necessary to maintain safety,


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          health, order or effective direction of public
          services.

Where the "suspension is based on a formal charge of a crime of

the first, second or third degree, or a crime of the fourth degree

if committed on the job or directly related to the job, the

suspension may be immediate and continue until a disposition of

the charge." Ibid. N.J.A.C. 4A:2-2.7(a) establishes the following

procedures for hearings and suspensions with or without pay:

               When an appointing authority suspends an
          employee based on a pending criminal complaint
          or indictment, the employee must be served
          with a [PNDA]. . . .

               1. The employee may request a
               departmental hearing within five
               days of receipt of the Notice. If
               no request is made within this
               time, . . . the           appointing
               authority may then issue [a] [FNDA]
               under (a)3 below. A hearing shall
               be limited to the issue of whether
               the public interest would best be
               served by suspending the employee
               until disposition of the criminal
               complaint or indictment.         The
               standard for determining that issue
               shall be whether the employee is
               unfit for duty or is a hazard to any
               person if permitted to remain on the
               job, or that an immediate suspension
               is necessary to maintain safety,
               health,    order,    or    effective
               direction of public services.

               2. The appointing authority may
               impose an indefinite suspension to
               extend beyond six months where an
               employee is subject to criminal

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               charges as set forth in      N.J.A.C.
                              [4]
               4A:2-2.5(a)(2),    but not beyond the
               disposition    of     the    criminal
               complaint or indictment.

                    i. Where an employee who
                    has   been   indefinitely
                    suspended          enters
                    [PTI] . . . ,         the
                    criminal   complaint   or
                    indictment shall not be
                    deemed disposed of until
                    completion of PTI . . . .

                    . . . .

               3. Where the appointing authority
               determines   that   an   indefinite
               suspension should be imposed, [an]
               [FNDA] shall be issued stating that
               the employee has been indefinitely
               suspended pending disposition of
               the    criminal     complaint    or
               indictment.

     Here, Lavin does not dispute that "he [was] a member of the

Mercer County Sheriff's [Department], and, as such, . . . a law

enforcement officer . . . bound to uphold, promote and enforce the

laws of the State of New Jersey."   Further, it is undisputed that

Lavin was charged criminally on December 12, 2013, with second-

degree charges related to his job, which charges ultimately caused

his resignation on October 2, 2015, and were dismissed on November



4 Under N.J.A.C. 4A:2-2.5(a)(2), "[a]n employee may be suspended
immediately when the employee is formally charged with a crime of
the first, second or third degree, or a crime of the fourth degree
on the job or directly related to the job."


                                8                          A-1802-15T1
4, 2016 upon his successful completion of the PTI program. Equally

undisputed is the fact that Lavin was suspended pending the

disposition   of   the   criminal   charges   and   afforded   all    the

protections enunciated in N.J.A.C. 4A:2-2.7.

     Despite Lavin's assertions to the contrary, there were no

genuine issues of material fact, and the matter was appropriate

for summary disposition.     "It is well-established that where no

disputed issues of material fact exist, an administrative agency

need not hold an evidential hearing in a contested case."            Frank

v. Ivy Club, 
120 N.J. 73, 98 (1990).      Lavin has not established

that the Commission's determination was arbitrary, capricious, or

unreasonable, or that it lacked fair support in the record as a

whole.   Karins v. City of Atlantic City, 
152 N.J. 532, 540 (1998).

Thus, the strong presumption of reasonableness attached to a

decision of the Commission is warranted in this case.            In re

Carroll, 
339 N.J. Super. at 437.

     Affirmed.




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