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                            APPROVAL OF THE APPELLATE DIVISION
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                                                     SUPERIOR COURT OF NEW JERSEY
                                                     APPELLATE DIVISION
                                                     DOCKET NO. A-2987-18T2


                Argued telephonically September 21, 2020 –
                Decided October 2, 2020

                Before Judges Rothstadt and Mayer.

                On appeal from the New Jersey Civil Service
                Commission, Docket No. 2018-1878.

                Steven D. Altman argued the cause for appellant
                (Benedict & Altman, attorneys; Steven D. Altman and
                Joshua Altman, on the briefs.)

                David I. Solomon argued the cause for respondent
                Irvington Township Department of Public Safety
                (Florio Perrucci Steinhardt Cappelli Tipton & Taylor,
                LLC, attorneys; Lester E. Taylor and Michael P.
                Marotta on the brief).

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

      Petitioner Monique Smith appeals from a final agency decision by the

Civil Service Commission (Commission) finding support for three of the nine

disciplinary charges filed against her by respondent Irvington Township

Department of Public Safety (Police Department) resulting in her suspension for

ninety working days. In addition, she appeals the denial of her request for

attorney's fees.   For the reasons that follow, we vacate the Commission's

decision and remand the matter to the Commission for referral to the

Administrative Law Judge (ALJ) to set forth findings of fact and conclusions of

law separate from the fact-findings and conclusions reached by the Law Division

judge in Smith's criminal matter.

      We provide a brief overview of the facts to give context to our decision.

Smith worked for the Police Department and was promoted to the rank of captain

in a ceremony held on January 5, 2015. Smith's boyfriend at the time, John

Sharpe James, terminated their relationship in an email message sent the day of

the promotion ceremony. After the ceremony and celebratory party, Smith went

to James's apartment to discuss the breakup and found James outside in his car.

Upon seeing Smith, James drove off, and Smith followed in her car. It was

reported that Smith drove aggressively, and Smith admitted to driving over a

center island while following James's car.

      As a result of this incident in January 2015, Smith was issued with two

motor vehicle summonses and six other violations. She was charged with

leaving the scene of an accident,  N.J.S.A. 39:4-129, and reckless driving,

 N.J.S.A. 39:4-96. Based on these charges, Smith was suspended by the Police


      On June 23, 2015, Smith was criminally charged with second-degree

aggravated assault,  N.J.S.A. 2C:12-1(b)(1); fourth-degree unlawful possession

of a weapon,  N.J.S.A. 2C:39-5(d); third-degree possession of a weapon for an

unlawful purpose,  N.J.S.A. 2C:39-4(d); and fourth-degree criminal mischief,

 N.J.S.A. 2C:17-3(a)(1), related to the January 2015 incident with James. Prior

to trial, the State dismissed the aggravated assault charge and amended the

criminal mischief charge to a disorderly persons charge.

      The possession charges were presented to a jury, and the jury found Smith

not guilty. Thereafter, the parties agreed to allow the criminal trial judge to

decide the remaining charges by way of a bench trial. In a twenty-two page

written decision, the criminal trial judge found Smith guilty of reckless driving

but not guilty of disorderly persons criminal mischief and leaving the scene of

an accident.

      Subsequent to the issuance of the criminal trial judge's decision, the

Commission issued a preliminary notice of disciplinary action asserting nine

charges against Smith. Four of the charges asserted conduct unbecoming a

public employee, N.J.A.C. 4A:2-2.3(a)(6), and five of the charges were for other

sufficient causes, N.J.A.C. 4A:2-2.3(a)(12). The Police Department conducted

a disciplinary hearing, which resulted in a final notice of disciplinary action

imposing a six-month working-day suspension without pay commencing

January 6, 2015.

      Smith appealed to the Commission, and the matter was referred to the

Office of Administrative Law (OAL). An ALJ conducted two days of hearings.

An investigating detective for the Police Department and the Director of Public

Safety testified for Irvington. Smith did not present any witnesses.

      After completion of the testimony, the ALJ rendered a written decision.

Her written decision relied on the factual findings of the trial judge in Smith's

criminal proceeding.

      The ALJ concluded "almost entirely based upon [the criminal trial judge's]

decision, . . . that Irvington has proved by a preponderance of the credible

evidence that Captain Smith drove recklessly, including some minor contact

with the vehicle of her former boyfriend." She expressly noted, "there was little

evidence adduced that was not derivative of the prior criminal proceedings."

      In her written decision, the ALJ relied on the criminal trial judge's

decision based on the doctrine of collateral estoppel. Because Smith did not

appeal the criminal trial judge's decision, the ALJ concluded she "must accept

[the criminal trial judge's determinations] as having been previously adjudicated

against [Smith], after she had a full and fair opportunity to be heard."

      Relying on the criminal trial judge's written decision, the ALJ concluded

there was "credible proof presented that [Smith] recklessly pursued James in her

vehicle and that the necessary supporting facts of such were incorporated into

his finding of her guilt on the reckless driving charge" thereby supporting charge

two of conduct unbecoming a public employee as well as charge three of other

sufficient causes. The ALJ suspended Smith for ninety days and awarded her

one-half of the attorney's fees requested "as the prevailing party."

      Smith filed written exceptions to the ALJ's decision with the Commission.

The Commission "accepted and adopted the [f]indings of [f]act" of the ALJ and

affirmed her suspension but held the ninety-day suspension was based on

"working" days. In addition, the Commission reversed the ALJ's award of

attorney's fees.

      On appeal, Smith raises four issues: (1) procedural deficiencies during the

disciplinary process require the disciplinary findings be vacated; (2) the findings

related to the disciplinary violations must be vacated for lack of competent

evidence and a failure to prove by a preponderance of the evidence; (3) the

ninety working-day suspension was an error; and (4) counsel fees should have

been awarded to Smith as the prevailing party.

      An appellate court has "a limited role" in the review of administrative

agency decisions. Henry v. Rahway State Prison,  81 N.J. 571, 579 (1980). We

may reverse an agency's decision "if it is arbitrary, capricious or unreasonable

or . . . not supported by substantial credible evidence in the record as a whole."

Id. at 579-80 (citing Campbell v. Dep't of Civil Serv.,  39 N.J. 556, 562 (1963)).

In determining if an agency's decision is arbitrary, capricious, or unreasonable,

we consider:

             (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.

            [In re Carter,  191 N.J. 474, 482-83 (2007) (quoting
            Mazza v. Bd. of Trs.,  143 N.J. 22, 25 (1995)).]

      Smith argues the ALJ's fact-findings were deficient because she

improperly adopted the factual findings of the criminal trial judge under the

doctrine of collateral estoppel. We agree.

      "A court has broad discretion to determine whether application of

collateral estoppel is appropriate." Adelman v. BSI Fin. Servs., Inc.,  453 N.J.

Super. 31, 39-40 (App. Div. 2018), certif. denied,  236 N.J. 628 (2019) (citing

Parklane Hosiery Co. v. Shore,  439 U.S. 322, 331 (1979)).

            [F]or the doctrine of collateral estoppel to apply to
            foreclose the relitigation of an issue, the party asserting
            the bar must show that: (1) the issue to be precluded is
            identical to the issue decided in the prior proceeding;
            (2) the issue was actually litigated in the prior
            proceeding; (3) the court in the prior proceeding issued
            a final judgment on the merits; (4) the determination of
            the issue was essential to the prior judgment; and (5)
            the party against whom the doctrine is asserted was a
            party to or in privity with a party to the earlier

            [Olivieri v. Y.M.F. Carpet, Inc.,  186 N.J. 511, 521
            (2006) (quoting In re Estate of Dawson,  136 N.J. 1, 20-
            21 (1994)).]

Application of collateral estoppel is prohibited "if a party has not had a 'full and

fair opportunity to litigate an issue.'" State v. McKinney,  223 N.J. 475, 493

(2015) (quoting State v. K.P.S.,  221 N.J. 266, 278 (2015)).

      Here, Smith correctly argues the doctrine of collateral estoppel was

inapplicable. Smith's reckless driving guilty verdict in the criminal matter was

not "identical" to a charge of conduct unbecoming a public employee. More

importantly, the conduct unbecoming issue was never presented or litigated

before the criminal trial judge. Because the doctrine of collateral estoppel was

inapplicable, the ALJ was required to set forth her own findings of fact in

deciding that Smith's actions constituted a disciplinary violation.

      Having reviewed the record, the ALJ's decision was not supported by

substantial credible evidence in the record before the OAL. As a result, the

Commission's adoption of the ALJ's findings was fatally flawed.             Absent

independent findings by the ALJ, untethered to the findings by the judge in

Smith's criminal trial, the matter must be remanded to the Commission. The

Commission shall refer the matter to the OAL for the ALJ to determine whether

Smith's reckless driving constituted conduct unbecoming of an officer and other

sufficient causes to warrant discipline without reliance upon the criminal trial

judge's fact-findings.

     Because we vacate and remand the matter to Commission, we need not

address Smith's remaining arguments on appeal. Those arguments may be

presented at the remand proceeding.

     Vacated and remanded. We do not retain jurisdiction.


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