IN THE MATTER OF E.B. SHERIFF'S OFFICER (S9999R ESSEX COUNTY

NOT FOR PUBLICATION WITHOUT THE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
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                                                     SUPERIOR COURT OF NEW JERSEY
                                                     APPELLATE DIVISION
                                                     DOCKET NO. A-2356-16T2

IN THE MATTER OF E.B.,
SHERIFF'S OFFICER (S9999R),
ESSEX COUNTY.


                Submitted October 30, 2018 – Decided December 18, 2018

                Before Judges Gilson and Natali.

                On appeal from the New Jersey Civil Service
                Commission, Docket No. 2017-17.

                Law Offices of Daniel J. Zirrith, LLC, attorneys for
                appellant (Daniel J. Zirrith, of counsel and on the
                briefs; Edward H. Kerwin, on the briefs).

                Courtney M. Gaccione, County Counsel, attorney for
                respondent Essex County Sheriff's Office (Robin E.
                Magrath, on the brief).

                Gurbir S. Grewal, Attorney General, attorney for
                respondent Civil Service Commission (Pamela N.
                Ullman, Deputy Attorney General, on the statement in
                lieu of brief).

PER CURIAM
      Appellant E.B.1 appeals from a December 22, 2016 final administrative

action of the Civil Service Commission (Commission) upholding his removal

from a list of eligible candidates for a position as a sheriff's officer. We affirm

because the Commission's decision was not arbitrary, capricious, or

unreasonable and was supported by substantial, credible evidence in the record.

                                         I

      Appellant applied for employment as an Essex County Sheriff's Officer.

He took the open competitive examination, achieved a passing score, and , in

2014, was placed on the eligibility list.         Following a pre-employment

investigation, the Essex County Sheriff's Office (ECSO) requested that appellant

be removed from the eligibility list because it believed he had made false

statements on his application and because of appellant's criminal history.

      ECSO asserted that three of appellant's responses on his application were

false. Two of the questions asked if appellant had previously been arrested or

fingerprinted. The third question asked if any judgments had been entered

against appellant. Appellant responded that he had not been arrested, he had




1
 We use initials to protect appellant's privacy interests because the issues raised
on appeal involve a discussion of his criminal record.
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been fingerprinted in connection with a prior application to be a sheriff's officer,

and "N/A" concerning judgments.

      A background check, however, revealed that appellant had been arrested

and fingerprinted twice on charges of simple assault. His wife had also obtained

four domestic violence temporary restraining orders (TROs) against appellant.

The assault charges and all of the TROs were subsequently dismissed. The

background check also disclosed that seventeen judgments had been filed

against appellant.

      On September 1, 2015, appellant was notified that he was removed from

the eligibility list because he had made false statements on his application. He

administratively appealed his removal to the Commission. That administrative

appeal was first considered by the Commission's Division of Agency Services,

which upheld his removal on June 7, 2016. Appellant then appealed to the

Commission, which also upheld his removal in a final agency decision issued

on December 22, 2016.

      Before the Commission, appellant contended that his answers on his

application were truthful. He asserted that he had responded "no" to the question

about arrests because he did not think that the domestic violence charges were

criminal charges within the meaning of the question. Moreover, he pointed out


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that he did disclose the TROs and arrests for assaults in response to other

questions.   He maintained that he correctly answered that he had been

fingerprinted in connection with his previous application to be a sheriff's officer

and he assumed that ECSO would realize that he had been fingerprinted when

he was arrested. With regard to the question about judgments, appellant stated

that he believed the question was asking about outstanding and unpaid

judgments. He then contended that at the time that he submitted his application,

he did not have any outstanding and unpaid judgments.

      Appellant also addressed his criminal record during his administrative

appeal to the Commission. He contended that his two arrests and four TROs

were all based on disputes with his wife and he pointed out that all the charges

and TROs had been dismissed. He also submitted a certification from his wife,

who stated that appellant was innocent. Appellant also noted that he had served

in the Air Force Reserve for over twenty years, had been deployed six times to

the Middle East, and had received numerous awards and decorations for his

services.

      After considering the record and appellant's arguments, the Commission

upheld his removal from the list of eligible candidates because the Commission

found that he had an unsatisfactory background for the position as a sheriff's


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officer. Specifically, the Commission found that appellant's "multiple adverse

encounters with law enforcement and the court system demonstrate his disregard

of the law." The Commission considered appellant's arguments concerning his

criminal record, but the Commission also reasoned that "it cannot be ignored

that appellant engaged in behavior where his wife felt compelled to file TROs

on three separate occasions between 1995 through 1999." The Commission then

pointed out that the fourth incident, which occurred in 2010, was witne ssed by

a third party. Finally, the Commission noted that the fifth incident, which

occurred in 2012, involved his wife calling the police and the police arresting

appellant for assault. Thus, the Commission found a sufficient basis to uphold

appellant's removal from the eligibility list for a position as a sheriff's officer .

The Commission noted that it need not decide the issue of falsification of his

application because it was upholding appellant's removal from the list on

alternative grounds.

                                         II

      Appellant appeals the Commission's final agency decision and argues (1)

he should be restored to the eligibility list because he was not convicted on the

charges for which he was arrested and because all the TROs were dismissed;




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and (2) he did not make a false statement of any material fact on his application.

We are not persuaded by these arguments.

      Our scope of review of a final administrative agency decision is limited.

In re Reallocation of Prob. Officer,  441 N.J. Super. 434, 443 (App. Div. 2015)

(citing In re Carter,  191 N.J. 474, 482 (2007)). "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).

      The Civil Service Act authorizes the Commission to remove a person from

an eligibility list when that person has a criminal record, including "a conviction

for a crime which adversely relates to the employment sought."  N.J.S.A. 11A:4-

11; see also N.J.A.C. 4A:4-4.7(a)(4) (which are the regulations implementing

the Act). The statute and the regulations provide that the Commission may

consider the following factors in determining whether to remove a person from

the eligibility list based on a criminal record:

             a.    Nature and seriousness of the crime;

             b.    Circumstances under which the crime occurred;

             c.    Date of the crime and age of the eligible when the
                   crime was committed;

             d.    Whether the crime was an isolated event; and

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            e.     Evidence of rehabilitation.

            [ N.J.S.A. 11A:4-11; see also N.J.A.C. 4A:4-4.7(a)(4).]

We have held that an arrest unsupported by a conviction can disqualify an

individual from obtaining employment in law enforcement so long as the

determination is made by looking at the totality of the circumstances

surrounding the arrest and how they adversely relate to the employment sought.

Tharpe v. City of Newark Police Dept.,  261 N.J. Super. 401, 405-06 (App. Div.

1992).

      The Commission may also remove a person's name from the eligibility list

for other sufficient reasons. See N.J.A.C. 4A:4-4.7(a)(1) and N.J.A.C. 4A:4-

6.1(a)(9). In removing a person from the eligibility list for other sufficient

reasons, the Commission can consider the person's criminal background in

conjunction with the nature of the employment sought and determine that that

person is not eligible for appointment. Tharpe,  261 N.J. Super. at 405-06.

      Here, the Commission evaluated the evidence in the record and

determined that appellant's removal from the eligibility list was warranted. We

discern no abuse of discretion in the Commission's determination that appellant's

two arrests and multiple temporary restraining orders were sufficient reason to

find that he was not suitable for a position as a sheriff's officer. The Commission


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considered appellant's claim that he was innocent and that his wife was

emotional when she brought the charges against him.           The Commission,

however, found that appellant's arrests and multiple charges of domestic

violence made him unsuitable for the position of a sheriff's officer. The record

contains substantial, credible evidence supporting the Commission's decision

and we discern no basis to find that the Commission acted arbitrarily,

capriciously, or unreasonably.

      We also note that this is not a situation where the Commission did not

fully consider appellant's position. Although ECSO had sought appellant's

removal on the basis of his filing false responses on his application during the

administrative appeal, appellant's criminal record was also at issue. Indeed,

before the Commission, appellant addressed his criminal record and pointed out

that all the charges and restraining orders were dismissed. Consequently, this is

not a situation where the Commission did not fully consider appellant's

contentions regarding his criminal record. Instead, the record reflects that the

Commission appropriately considered appellant's criminal record in light of the

governing legal standard.

      Affirmed.




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