Opinion
DOCKET NO. A-2262-13T3
06-09-2015
IN THE MATTER OF MARCO SEMINARIO.
Sciarra & Catrambone, L.L.C., attorneys for appellant Marco Seminario (Charles J. Sciarra, of counsel; Mr. Sciarra and Deborah Masker Edwards, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent New Jersey Civil Service Commission (Pamela N. Ullman, Deputy Attorney General, on the statement in lieu of brief). Chasan Leyner & Lamparello, attorneys for respondent County of Hudson (Cindy Nan Vogelman, of counsel; Reka Bala, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Reisner and Higbee. On appeal from the New Jersey Civil Service Commission, Docket No. 2013-3051. Sciarra & Catrambone, L.L.C., attorneys for appellant Marco Seminario (Charles J. Sciarra, of counsel; Mr. Sciarra and Deborah Masker Edwards, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent New Jersey Civil Service Commission (Pamela N. Ullman, Deputy Attorney General, on the statement in lieu of brief). Chasan Leyner & Lamparello, attorneys for respondent County of Hudson (Cindy Nan Vogelman, of counsel; Reka Bala, on the brief). PER CURIAM
Appellant Marco Seminario appeals from the December 18, 2013 final administrative action of the Civil Service Commission upholding appellant's removal from his position as a Hudson County corrections officer. After reviewing the record in light of the applicable legal standards, we affirm substantially for the reasons stated in the Commission's decision. We add these comments.
The evidence is reviewed at length in the November 6, 2013 Initial Decision of the administrative law judge (ALJ), with which the Commission agreed. In summary, appellant was arrested by the Woodbridge police for driving while intoxicated (DWI). At the administrative hearing, appellant did not dispute that he was intoxicated; he admitted that he took oxycontin pills for a hand injury, and then drank alcohol and drove. When arrested, he had a blood alcohol content of .19, which was more than twice the legal limit. He also attempted to flee the scene in his car.
However, appellant's termination was not based on the DWI itself. Rather, he was terminated for conduct unbecoming a public employee, based on his attempts to misuse his office to avoid arrest, and to threaten and intimidate the arresting police officer. According to the officer's un-rebutted testimony, which the ALJ credited, after being brought to the police station, appellant reminded the officer that he was also in law enforcement and accused the officer of trying to ruin his life. He also told the officer that his entire family was "connected" and stated to the officer that "you'll see what happens to you." The officer testified that he felt appellant was threatening him with some sort of retaliation and was trying to intimidate him. The ALJ found that appellant tried to use his status as a corrections officer to avoid arrest, and tried to intimate the arresting officer, and that such conduct warranted the penalty of removal. The Commission agreed.
On this appeal, appellant contends that the ALJ and the Commission should not have believed the officer's testimony, the agency's factual findings are not supported by the evidence, and the penalty is excessive in light of appellant's otherwise good employment record. He also contends that other law enforcement officers who were involved in DWI incidents received less serious discipline. Those arguments are unpersuasive.
Our review of the Commission's decision is quite limited. We do not decide this case de novo or substitute our judgment for that of the agency. In re Stallworth, 208 N.J. 182, 194 (2011); In re Carter, 191 N.J. 474, 483 (2007). Rather, we canvass the record to determine whether the agency's decision is supported by sufficient credible evidence. Carter, supra, 191 N.J. at 482. We owe particular deference, as does the agency, to the ALJ's credibility determinations. See In re Grossman, 127 N.J. Super. 13, 22-23 (App. Div.), certif. denied, 65 N.J. 292 (1974). Moreover, we owe deference to the Commission's policy determinations concerning the types of violations that are serious enough to justify terminating an employee without first resorting to progressive discipline. Carter, supra, 191 N.J. at 486-87.
After reviewing the record, we will not second-guess the ALJ's decision to credit the police officer's testimony. Nor do we find any basis to disturb the Commission's factual findings. In light of those findings, there is nothing arbitrary or capricious in the Commission's decision upholding appellant's termination. As the Commission noted, none of the other employees to whom appellant seeks to compare himself were similarly situated. None of those employees were accused of threatening a police officer or attempting to misuse their status as law enforcement officers to avoid arrest.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION