Opinion
DOCKET NO. A-1766-12T4
06-20-2014
DERRICK B. PARREOTT, SR., Appellant, v. BOARD OF REVIEW, DEPARTMENT OF LABOR and ASBURY PARK CITY, Respondents.
Derrick B. Parreott, Sr., appellant pro se. John J. Hoffman, Acting Attorney General, attorney for respondent Board of Review, Department of Labor (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Christopher M. Kurek, Deputy Attorney General, on the brief). Ruderman & Glickman, attorneys for respondent Asbury Park City (Steven S. Glickman, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Hayden and Rothstadt.
On appeal from the Board of Review, Department of Labor, Docket No. 364,187.
Derrick B. Parreott, Sr., appellant pro se.
John J. Hoffman, Acting Attorney General, attorney for respondent Board of Review, Department of Labor (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Christopher M. Kurek, Deputy Attorney General, on the brief).
Ruderman & Glickman, attorneys for respondent Asbury Park City (Steven S. Glickman, on the brief). PER CURIAM
Derrick B. Parreott, Sr., appeals from a November 14, 2012 final agency decision of the Board of Review (the Board), which affirmed as modified the April 20, 2012 determination of the Appeal Tribunal (the Tribunal) finding that Parreott was disqualified from unemployment compensation benefits. After reviewing the record in light of the contentions advanced on appeal, we affirm.
Parreott began working for the City of Asbury Park (the City) in January 1990, and advanced through the ranks to police sergeant when he was placed on sick leave in October 2006. On December 11, 2006, Parreott was suspended due to his arrest for simple assault and domestic violence arising out of a confrontation with the mother of his children. Parreott was found guilty of that charge in Belmar Municipal Court on July 30, 2007.
On August 14, 2007, the City issued a preliminary notice of disciplinary action against Parreott charging him with conduct unbecoming of a public employee due to the domestic violence incident for which the alleged victim received a domestic violence restraining order; and inability to perform his duties, as he was prohibited from carrying a gun as a result of the incident. On August 29, 2007, Parreott consented to the revocation of "all permits, licenses and other authorizations for the use, possession, or ownership" of weapons, pursuant to N.J.S.A. 2C:25-21(d)(3).
According to Parreott this order was dismissed on March 30, 2007.
Parreott subsequently appealed his conviction to the Law Division where the Superior Court judge found him not guilty, clearing him of the criminal charge. Nevertheless, his administrative charges remained, but were modified to reflect that he was found not guilty. For reasons not fully explained in the record, the County Prosecutor's Office declined to allow him to be rearmed. The City placed Parreott on paid suspension until February 14, 2011, and then paid him his regular salary for accumulated sick time. Parreott was terminated after his sick time was depleted on October 21, 2011.
As of the date of the Tribunal Hearing, the disciplinary charges were still pending appeal.
Parreott applied for unemployment benefits, and the Deputy Director of the Division of Unemployment Insurance ruled he was disqualified as he was discharged for severe misconduct connected with work. Parreott appealed, and the Tribunal heard argument telephonically on April 17, 2012.
At the Tribunal hearing, Police Chief Mark Kinmon testified that Parreott could not return to work due to an outstanding order from the Prosecutor's Office that prohibited him from possessing a firearm. Chief Kinmon further testified that Parreott could not account for all of the personal weapons in his possession, which he was ordered to relinquish, and as a result, the Prosecutor's Office would not authorize Parreott to be rearmed until he provided that information.
This order is not part of the record.
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Parreott testified that the only reason he was not presently working with the police department was because of the Prosecutor's Office's determination. Pursuant to the 2007 order requiring the forfeiture of his weapons, Parreott contended he relinquished three or four personal weapons. Regarding the two weapons supposedly unaccounted for, Parreott explained he sold one, but was unable to locate the paperwork at the time the Prosecutor's Office requested it, and the other was in South Carolina, and no paperwork was necessary because it was never registered in the State of New Jersey. The Prosecutor's Office apparently did not find Parreott's explanations satisfactory. Parreott stated that he had hired an attorney to litigate against the Prosecutor's Office.
The Tribunal determined Parreott was disqualified for benefits under N.J.S.A. 43:21-5(b) due to his failure to produce handgun receipt paperwork to the Prosecutor's Office, which prevented him from returning to work. The Tribunal concluded that because Parreott was "pursuing civil litigation against the Prosecutor's [O]ffice rather [than] complying with . . . return to work procedures," he was disqualified for benefits as he was discharged "for severe misconduct connected with the work."
On May 4, 2012, Parreott appealed the Tribunal's decision to the Board. The Board adopted the Tribunal's findings of fact, but modified the decision, finding that Parreott was separated from his employment due to his inability to possess a weapon, which was a necessary requirement to perform his duties as a police officer. The Board held that Parreott's separation due to the loss of a prerequisite of employment constituted a voluntary leaving of work. Consequently, the Board concluded Parreott was disqualified for benefits under N.J.S.A. 43:21-5(a) as he left voluntarily without good cause attributable to work. This appeal followed.
Before us, Parreott argues that the Board's conclusion that he left work voluntarily without good cause attributed to work is based on a gross misunderstanding as to the statutory plain meaning of the word "voluntarily." He contends that he did not voluntarily leave work in the ordinary sense of the word, but had his weapons involuntarily withheld from him. We are not persuaded.
Our scope of review of an agency decision is limited. In re Stallworth, 208 N.J. 182, 194 (2011) (citing Henry v. Rahway State Prison, 81 N.J. 571, 579 (1980)). In challenging an agency conclusion, the claimant carries a substantial burden of persuasion, and the determination of the administrative agency carries a presumption of correctness. Gloucester Cnty. Welfare Bd. v. N.J. Civil Serv. Comm'n, 93 N.J. 384, 390-91 (1983). We also accord substantial deference to the agency's interpretation of a statute it is charged with enforcing. Bd. of Educ. of Neptune v. Neptune Twp. Educ. Ass'n, 144 N.J. 16, 31 (1996).
Further, "[w]e are obliged to defer to the Board when its factual findings are based on sufficient credible evidence in the record." Lourdes Med. Ctr. of Burlington Cnty. v. Bd. of Review, 197 N.J. 339, 367 (2009) (internal quotation marks and citations omitted). We overturn an agency determination only if it is arbitrary, capricious, unreasonable, unsupported by substantial credible evidence as a whole, or inconsistent with the enabling statute or legislative policy. Barry v. Arrow Pontiac, Inc., 100 N.J. 57, 71-72 (1985) (citing Gloucester Cnty. Welfare Bd., supra, 93 N.J. at 391).
A person is disqualified from receiving unemployment benefits when "the individual has left work voluntarily without good cause attributable to such work." N.J.S.A. 43:21-5(a). In order to avoid disqualification, the claimant has the burden of establishing that his or her departure was for good cause related to work. Brady v. Bd. of Review, 152 N.J. 197, 218 (1997). Furthermore, "it is the employee's responsibility to do what is necessary and reasonable in order to remain employed." Domenico v. Bd. of Review, 192 N.J. Super. 284, 288 (citing Condo v. Review Bd., 158 N.J. Super. 172, 175 (App. Div. 1978)).
N.J.S.A. 43:21-5(a) expresses the legislative intent that benefits be paid only to those who have become unemployed through no fault of their own, and the Board is obligated to preserve the fund "against claims of those not intended to share in its benefits." Brady, supra, 152 N.J. at 212 (internal quotation marks and citations omitted). As the Supreme Court has held, "[w]here it is reasonably foreseeable that an employee's voluntary conduct will render him unemployable, and his actions actually do lead to the loss of a prerequisite of employment, the employee leaves work voluntarily without good cause attributable to such work under N.J.S.A. 43:21-5(a)." Yardville Supply Co. v. Bd. of Review, 114 N.J. 371, 377 (1989) (holding that benefits must be denied where truck driver's license was suspended for six months due to conviction for driving while intoxicated during non-work time).
The conclusion that the loss of a prerequisite of employment is considered a voluntary quit is further supported by N.J.A.C. 12:17-9.10(a), which states:
[i]f an individual is discharged due to the loss of a prerequisite license which is necessary to perform the duties of his or her employment, such discharge shall subject the individual to disqualification for benefits for voluntarily leaving work if he or she engaged in an act which resulted in the loss of the license.
Here, the Board properly applied these standards in rejecting Parreott's claim to benefits. The facts adduced at the hearing reveal that after his weapons were forfeited Parreott failed to provide the paperwork the Prosecutor's Office required to obtain permission to carry a weapon, which was a necessary and reasonable step in order to remain employed as a police officer. See Domenico, supra, 192 N.J. Super. at 288. Although Parreott was found not guilty of simple assault, this does not change the underlying fact that, as a direct result of his personal choices in dealing with the Prosecutor's Office concerning his forfeited weapons, he is prohibited from possessing a weapon, which is a prerequisite for the job as a police officer. See Yardville, supra, 114 N.J. at 377.
Applying our highly deferential standard of review, we find no basis to interfere with the Board's decision that, under these circumstances, Parreott was ineligible for unemployment benefits.
The Board's determination was supported by substantial, credible evidence, and we find no reason to disturb it. See Barry, supra, 100 N.J. at 71-72.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION