Opinion
DOCKET NO. A-0885-13T3
04-07-2015
IN THE MATTER OF JONATHAN CUMMINS, CITY OF HOBOKEN, DEPARTMENT OF ADMINISTRATION.
Weiner Lesniak LLP, attorneys for appellant City of Hoboken (Arnold Gerst, of counsel and on the briefs). Loccke, Correia, Limsky & Bukosky, attorneys for respondent Jonathan Cummins (Marcia J. Tapia, of counsel and on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent Civil Service Commission (Todd A. Wigder, Deputy Attorney General, on the statement in lieu of brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Waugh and Carroll. On appeal from the Civil Service Commission, Docket No. 2012-1458. Weiner Lesniak LLP, attorneys for appellant City of Hoboken (Arnold Gerst, of counsel and on the briefs). Loccke, Correia, Limsky & Bukosky, attorneys for respondent Jonathan Cummins (Marcia J. Tapia, of counsel and on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent Civil Service Commission (Todd A. Wigder, Deputy Attorney General, on the statement in lieu of brief). PER CURIAM
Appellant City of Hoboken (City) appeals from a September 6, 2013 final administrative decision of the Civil Service Commission (Commission). The Commission adopted the initial decision of an Administrative Law Judge (ALJ) who dismissed disciplinary charges filed by the City against Jonathan Cummins and reinstated Cummins's employment with the City. Following our review of the arguments advanced on appeal, in light of the record and applicable law, we affirm.
I.
The factual background and procedural history are fully set forth in the comprehensive thirty-one page written decision of ALJ Evelyn J. Marose dated May 20, 2013, and need not be repeated in the same level of detail here. Summarizing, in May 2011, City officials suspected that the City's computer network and email system had been breached. The City's concern arose from a large volume of Open Public Records Act (OPRA) requests it was receiving for confidential emails between City officials including emails sent and received by Mayor Dawn Zimmer.
The City contacted Edward Reiss to conduct an investigation into the suspected data breach. Reiss is an information security engineer at Tag Solutions, a computer security and forensics firm. City officials suspected that Patrick Ricciardi, who headed the City's two-member information technology (IT) office, might be responsible for the breach.
The Tag Solutions consultants conducted their investigation at the City's IT office on May 16, 2011. The investigation revealed that a hard drive in the City's IT department contained archives of emails sent and received by several City officials, including the Mayor. When Arthur Liston, the City's business administrator, and Mark Tabakin, the City's corporation counsel, reviewed the emails, they noted that the archived emails had been sent to unauthorized third parties. The City then contacted the Federal Bureau of Investigation (FBI) and other law enforcement agencies regarding the issue.
The following day, Tabakin and Liston decided to question Cummins, the only other employee in the IT Department, and his supervisor, Ricciardi, in order to gather more information. According to Tabakin and Liston, during this questioning Cummins confessed to them that he was responsible for archiving the emails and had been forwarding them to unauthorized third parties, including City Fire Chief Richard Blohm and former Public Safety Director Angel Alicia.
At some point during the questioning, Cummins requested his union representative, Diane Nieves-Carreras (Nieves). Nieves arrived and upon learning that the matter might be criminal in nature, requested that Merrick Limsky, the union attorney, also be present. Limsky was contacted and went to City Hall. Neither Limsky nor Nieves heard Cummins' purported confession. Cummins, on his part, denied that he had confessed to sending confidential emails to unauthorized third parties. Following the questioning, Cummins was told to leave City offices. On May 17, 2011, the City issued a Preliminary Notice of Disciplinary Action (PNDA), charging Cummins with several violations of N.J.A.C. 4A:2-2.3(a), including conduct unbecoming a public employee, misuse of public property, and "other sufficient cause." The PNDA stated that Cummins was suspended without pay as of that date.
Thereafter, Cummins was interviewed by the FBI with regard to the compromise of the City's email and computer network. Cummins maintains that he did not confess to City officials or the FBI that he ever disseminated confidential City emails to unauthorized third parties. On November 7, 2011, a criminal complaint was filed against Patrick Ricciardi in the United States District Court for the District of New Jersey. Attached to the complaint was a probable cause statement sworn to by FBI agent Christian Schorle containing a footnote that read:
On or about May 17, 2011, another City employee, Jonathan Cummins, confessed to a Mayor's [e]mployee that he had used the Archive File to download Intercepted E-Mails from the Mayor's e-mail account to the Archive File and then to forward those Intercepted E-Mails to several external email accounts. On or about May 25, 2011, however, defendant [Ricciardi] admitted that he, in fact, was the one who had created the Archive File and forwarded the Intercepted E-Mails, and that Cummins had falsely confessed because of the friendship shared between Cummins and defendant [Ricciardi].
Upon further questioning, Cummins confirmed that he had confessed falsely.
Based on the filing of the criminal complaint against Ricciardi, the City issued Cummins a second PNDA on June 20, 2012, charging that "[a]s a result of Cummins['s] false confession and deception" he committed misconduct pursuant to N.J.A.C. 4A:2-2.3(a), including (1) conduct unbecoming a public employee; (2) insubordination; and (3) neglect of duty. On July 5, the City issued a Final Notice of Disciplinary Action (FNDA) terminating Cummins's employment.
Cummins appealed his termination and the matter was transferred to the Office of Administrative Law (OAL) as a contested case. The ALJ conducted a three-day hearing in October 2012. The ALJ heard testimony from Liston, Tabakin, Reiss, Nieves, Limsky, and Liston. The federal criminal complaint against Ricciardi, the disciplinary notices, and a confidential report prepared by Tag Solutions were entered in evidence.
In a comprehensive thirty-one page written decision, ALJ Marose made numerous detailed credibility determinations and rendered extensive findings of fact and conclusions of law. The ALJ found that the City "presented no actual evidence that Cummins was responsible for the email leaks." She further found that the City failed to prove that Cummins either confessed to any wrongdoing, or falsely confessed in an effort to thwart the City's investigation. The ALJ determined that the testimony of Liston and Tabakin "lacked credibility," while Cummins's version of events was, by contrast, "plausible."
The ALJ specifically addressed, and discounted, the City's reliance on the federal complaint against Ricciardi. She found that:
Although the footnote contained in the affidavit with the criminal complaint against Ricciardi claims that Cummins had falsely confessed to City employees because of his friendship with Ricciardi, Cummins denied ever stating that to the affiant. The basis relied upon by that affiant remains unclear, but the City failed to present that affiant as a witness to refute Cummins's testimony that he never told anyone that he had falsely confessed.
Having fully examined all the testimony and evidence, ALJ Marose concluded that the City failed to prove that Cummins had engaged in the conduct that resulted in his termination. Consequently, the ALJ ordered that the disciplinary charges be dismissed, and that Cummins be reinstated to his position with back pay and other benefits.
After the City and Cummins filed exceptions and cross-exceptions, the Commission held a meeting on September 4, 2013, during which two members voted to adopt the ALJ's initial decision in full, while the remaining two members voted to uphold Cummins's termination. The tie vote resulted in the adoption of the ALJ's recommended decision as the Commission's final decision, pursuant to N.J.S.A. 52:14B-10(c). The City's appeal followed.
II.
On appeal, the City argues that the ALJ's decision was not supported by adequate, substantial, and credible evidence and that the ALJ's credibility determinations were erroneous. The City also contends that proper weight was not afforded the federal criminal complaint that established Cummins had falsely confessed to his involvement in the security breach in an attempt to deceive the City and thwart its investigation.
A.
Our scope of review of an administrative agency's final determination is limited. In re Carter, 191 N.J. 474, 482 (2007). We accord to the agency's exercise of its statutorily-delegated responsibilities a "strong presumption of reasonableness." City of Newark v. Natural Res. Council, 82 N.J. 530, 539, cert. denied, 449 U.S. 983, 101 S. Ct. 400, 66 L. Ed. 2d 245 (1980). The burden of showing the agency's action was arbitrary, unreasonable, or capricious rests upon the appellant. See Barone v. Dep't of Human Servs., Div. of Med. Assistance & Health Servs., 210 N.J. Super. 276, 285 (App. Div. 1986), aff'd, 107 N.J. 355 (1987).
The reviewing court "should not disturb an administrative agency's determinations or findings unless there is a clear showing 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 Application of Virtua-West Jersey Hosp. Voorhees for a Certificate of Need, 194 N.J. 413, 422 (2008); see also Circus Liquors, Inc. v. Governing Body of Middletown Twp., 199 N.J. 1, 9-10 (2009). The court "may not vacate an agency determination because of doubts as to its wisdom or because the record may support more than one result," but is "obliged to give due deference to the view of those charged with the responsibility of implementing legislative programs." In re N.J. Pinelands Comm'n Resolution PC4-00-89, 356 N.J. Super. 363, 372 (App. Div.) (citing Brady v. Bd. of Review, 152 N.J. 197, 210 (1997)), certif. denied, 176 N.J. 281 (2003).
An ALJ's factual findings and legal conclusions are not "binding upon [an] agency head, unless otherwise provided by statute." N.J.A.C. 1:1-18.1(c). Accordingly, an agency head reviews an ALJ's decision "de novo [] based on the record" before the ALJ. See In re Parlow, 192 N.J. Super. 247, 248 (App. Div. 1983). However, "[a]n agency head reviewing an ALJ's credibility findings relating to a lay witness may not reject or modify these findings unless the agency head explains why the ALJ's findings are arbitrary or not supported by the record." S.D. v. Div. of Med. Assistance & Health Servs., 349 N.J. Super. 480, 485 (App. Div. 2002); see also N.J.S.A. 52:14B-10(c) (An agency head may only reject the ALJ's credibility findings after he or she determines "from a review of the record that the findings are arbitrary, capricious or unreasonable or are not supported by sufficient, competent, and credible evidence in the record." In doing so, "the agency head shall state with particularity the reasons for rejecting the findings and shall make new or modified findings supported by sufficient, competent, and credible evidence in the record.").
We also defer to findings of fact that are based on credibility determinations and a feel for the case. See State v. Nuñez-Valdéz, 200 N.J. 129, 141 (2009) ("A reviewing court is required to affirm the findings of the trial court if they could reasonably have been reached on sufficient credible evidence in the record."). "In reviewing factual determinations made by an administrative agency we will not intervene if the findings could reasonably have been reached on sufficient credible evidence present in the record, giving due regard to the opportunity of the one who heard the witnesses to judge their credibility." Renan Realty Corp. v. State Dep't of Cmty. Affairs, Bureau of Hous. Inspection, 182 N.J. Super. 415, 419 (App. Div. 1981). See also Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 587 (1988) (addressing ALJ's ability to make credibility findings).
B.
Applying these standards, and based on our review of the record, we are satisfied that the ALJ's findings, which the Commission adopted, are supported by substantial credible evidence. The ALJ made numerous credibility assessments, and explained in detail the reasons why she accepted or rejected the testimony of the various witnesses. According deference, as we must, to the ALJ's credibility determinations, we conclude that the City's arguments are without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(E). We add the following comments.
ALJ Marose declined to accept the accounts of Tabakin and Liston with respect to Cummins' alleged confession. The ALJ thoughtfully noted several inconsistencies in their descriptions of Cummins's questioning, including the divergence in their respective testimony as to whether Cummins forwarded the emails to Blohm and Alicia, or just to Alicia. They also differed with respect to when Cummins purportedly confessed, with Liston testifying that the confession occurred during the middle of the questioning session, while Tabakin testified that the confession occurred at the end. These inconsistencies are duly supported by the record.
The ALJ further found that:
After hearing all four witnesses — Liston, Tabakin, Cummins, and Nieves, and [assessing] their credibility, I do not FIND Liston and Tabakin's testimony regarding when Cummins requested union representation to "ring" true.
. . . .
After assessing all of the witness's [sic] testimony, in light of their internal consistency and the manner in which it "hangs together" with other evidence, I FIND that Liston and Tabakin intended to question Cummins themselves, without his union representative, and that they did not respond to Cummins's initial requests to provide him with union representation. Instead they delayed calling Nieves until Cummins stopped answering their questions.
Noting that Nieves had no stake in the proceedings, the ALJ found Nieves's testimony most credible, and that it supported Cummins' testimony as to the number of times that he requested representation. Nieves described Tabakin's tone and volume with her as inappropriate, and that Tabakin "raised his voice to a yelling pitch." The ALJ concluded:
Such described behavior on the part of Tabakin supports Cummins's testimony that Tabakin's demeanor caused him to ask for union representation three times. It also supports the assertion that Tabakin did not initially comply with his request. It further indicates the kind of questioning of [an] employee that should have only taken place in the presence of union or legal representation. I FIND that Cummins asked for union representation and Nieves requested [] the union attorney several times before Liston and Tabakin stopped speaking and/or questioning Cummins and/or Nieves.
While noting that Cummins's testimony might be considered biased due to his self-interest in the outcome of the proceedings, the ALJ determined that his assertion that he did not disseminate confidential City emails was plausible. In contrast, the ALJ noted that "[b]oth Liston and Tabakin indicated a lack of expertise regarding computers and how access to the relevant emails could be obtained." The City's challenge to the ALJ's conclusions also fails to address the testimony of Reiss, the Tags Solutions consultant, who was unable to determine whether Cummins was in custody of emails that he lacked authorization to view.
We similarly reject the City's contention that the proofs established by a preponderance of the evidence that Cummins falsely confessed in an effort to thwart the City's investigation. The record contains conflicting and scant support that Cummins confessed at all, and the evidence to establish that he confessed falsely is even more meager. The City's allegation is premised on the single footnote in the FBI agent's statement made in support of the charges against Ricciardi. The ALJ determined that the "basis relied upon by that affiant remains unclear." Also, as the ALJ reasoned, the City failed to call the FBI agent as a witness to refute Cummins' clear testimony that he had never falsely confessed.
In summary, we are satisfied that there is sufficient evidence in the record to support the ALJ's findings and conclusions, which the Commission, in turn, adopted. Consequently, there is no basis to intervene.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION