Opinion
DOCKET NO. A-1602-17T3
11-15-2018
BRIAN BUGGÉ, Petitioner-Appellant, v. NEW JERSEY STATE POLICE, Respondent-Respondent.
Brian Buggé, appellant pro se. Gurbir S. Grewal, Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Suzanne M. Davies, Deputy Attorney General, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3. Before Judges Fasciale and Gooden Brown. On appeal from the Division of the New Jersey State Police. Brian Buggé, appellant pro se. Gurbir S. Grewal, Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Suzanne M. Davies, Deputy Attorney General, on the brief). PER CURIAM
Petitioner Brian Buggé appeals from the October 30, 2017 final agency decision of the Superintendent of the New Jersey State Police (NJSP). The Superintendent adopted the initial decision of the Administrative Law Judge (ALJ), affirming the NJSP's denial of Buggé's application for a security officer certification, pursuant to the Security Officer Registration Act (SORA), N.J.S.A. 45:19A-4. We affirm.
Pursuant to N.J.S.A. 45:19A-4(a), no person shall "be employed as, or perform the functions and activities of, a security officer unless that person is registered with the superintendent [of the NJSP]." Pursuant to N.J.S.A. 45:19A-4(b), "[a]n application for registration as a security officer shall be filed with the superintendent on a form and in a manner prescribed by the superintendent and shall set forth under oath," among other things, "that the applicant has not been convicted of any disqualifying crime or offense as set forth in subsection (c) of this section."
Under subsection (c):
No person shall be issued a certificate of registration as a security officer . . . if the person has been convicted . . . of: a crime of the first, second, third or fourth degree; any offense involving the unlawful use, possession or sale of a controlled dangerous substance as defined in N.J.S.[A.] 2C:35-2; or any offense where the registration of the individual would be contrary to the public interest, as determined by the superintendent.
[N.J.S.A. 45:19A-4(c).]
On April 19, 2016, Buggé applied for a security officer certification. After an investigation, on May 18, 2016, the NJSP denied the application, finding that, pursuant to N.J.S.A. 45:19A-4(c), Buggé's March 11, 1999 conviction by way of a guilty plea for a general violation of civil service law in the State of New York, a misdemeanor offense, disqualified him from obtaining a security officer certification. The NJSP determined that the New York conviction was equivalent to a fourth-degree crime in New Jersey. Buggé contested the denial, and the matter was transmitted to the Office of Administrative Law for a hearing. N.J.S.A. 52:14B-1 to -15; N.J.S.A. 52:14F-1 to -13.
On August 4, 2017, the ALJ granted the parties' joint application for summary decision, N.J.A.C. 1:1-12.5, and issued an initial decision affirming the denial. The ALJ accepted as undisputed facts "that, in 2001, the NJSP had disqualified [Buggé] from employment with Kroll Associates based upon the same [1999 New York] conviction." Kroll Associates held a license under the Private Detective Act of 1939, N.J.S.A. 45:19-8 to -27, pursuant to which it was prohibited from employing a person convicted of certain offenses specified in N.J.S.A. 45:19-16. However, upon Buggé's appeal, the NJSP reversed its determination and allowed Buggé to continue his employment with Kroll Associates as an unarmed security guard.
N.J.S.A. 45:19-16 prohibits a licensed employer from employing "any person who has been convicted of a high misdemeanor or . . . [designated] misdemeanors, or offenses," none of which applied to Buggé. --------
The ALJ also acknowledged Buggé's certificate of relief from disabilities issued by the State of New York on November 12, 2002. The certificate relieved Buggé "of all disabilities and bars to employment, excluding the right . . . to be eligible for public office," arising from the 1999 New York conviction. Further, the ALJ acknowledged Buggé's receipt of a private investigator license in the State of New York in 2000, as well as his work history in law enforcement, and numerous commendations. Buggé's work history included working for the United States Secret Service while in college, New York City as a corrections officer for six-and-one-half years, and Suffolk County as a member of their police department for approximately twenty years.
The ALJ considered Buggé's argument that both New Jersey and Federal courts have consistently interpreted a crime of the fourth-degree in New Jersey as equivalent to a felony, rather than a misdemeanor, based on the sentencing exposure. Thus, according to Buggé, because he was not convicted of a felony in New York, he was not convicted of a fourth-degree crime for purposes of SORA, and was not subject to disqualification. Buggé argued further that N.J.S.A. 45:19A-4(c) does not expressly address convictions of comparable offenses in other states. Buggé also relied on his ability to obtain firearms carry licenses and private investigator certifications in other states, and maintain various positions in law enforcement to support his arguments.
In rejecting Buggé's arguments, the ALJ concluded that "although the statute does not expressly provide for 'equivalent' offenses in other states, [he was] persuaded that the crime for which [Buggé] was convicted [was] sufficient to meet the standard established by New Jersey's regulatory scheme." Thus, the ALJ "concur[red] with the NJSP's determination that it [was] in the public interest to deny this application."
Buggé filed exceptions to the ALJ's initial decision with the Superintendent. In his final agency decision adopting the ALJ's decision, the Superintendent explained:
Notwithstanding Mr. Buggé's argument, his conviction in New York, for a General Violation of Civil Service Law, equates to a criminal violation of the fourth[-]degree pursuant to New Jersey law. Specifically, N.J.S.A. 11A:10-2, which provides:
Any person who purposely or knowingly violates or conspires to violate any
provision of this title (Civil Service) or Civil Service Commission order shall be guilty of a crime of the fourth degree.
The New Jersey Civil Service law and regulations apply to a variety of circumstances, including the administration and security of examinations. [See, e.g.,] N.J.S.A. 11A:4-1; N.J.A.C. 4A:4-2.10. Mr. Buggé's conviction related to a preparatory class that he taught to police candidates. In particular, the material that Mr. Buggé provided to the class in preparation for the examination. Therefore, in light of this statutory equivalency, the prohibition to obtaining a Security Officer Certification for a conviction of a fourth[-]degree crime, set out in N.J.S.A. 45:19A-4(c), is applicable to this matter.
The Superintendent also rejected Buggé's argument that a recently enacted New York law, N.Y. Crim. Proc. Law § 160.59, permitting the sealing of certain criminal convictions, dictated a different outcome. According to the Superintendent, "the statute provides that the sealed records remain available to 'qualified agencies,'" such as NJSP, "'acting within the scope of their law enforcement duties.'" This appeal followed.
On appeal, Buggé renews the arguments presented to the ALJ and the Superintendent, contending that the denial of his application based on his 1999 New York conviction was "arbitrary, capricious and unreasonable." We disagree.
We set out the well-known guideposts for our review of the Superintendent's final agency decision. "Appellate courts have 'a limited role' in the review of such decisions." In re Stallworth, 208 N.J. 182, 194 (2011) (quoting Henry v. Rahway St. Prison, 81 N.J. 571, 579 (1980)). "[W]e do not ordinarily overturn such a decision 'in the absence of a showing that it was arbitrary, capricious or unreasonable, or that it lacked fair support in the evidence.'" In re Carter, 191 N.J. 474, 482 (2007) (quoting Campbell v. Dep't of Civ. Serv., 39 N.J. 556, 562 (1963)).
Indeed,
the judicial role is generally restricted to three inquiries: (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.
[Mazza v. Bd. of Trs., 143 N.J. 22, 25 (1995).]
"When an agency's decision meets those criteria, then a court owes substantial deference to the agency's expertise and superior knowledge of a particular field." In re Herrmann, 192 N.J. 19, 28 (2007). "[I]f substantial evidence supports the agency's decision, 'a court may not substitute its own judgment for the agency's even though the court might have reached a different result.'" Carter, 191 N.J. at 483 (quoting Greenwood v. St. Police Training Ctr., 127 N.J. 500, 513 (1992)). However, we are "in no way bound by the agency's interpretation of a statute or its determination of a strictly legal issue." Ibid. (quoting Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85, 93 (1973)).
Guided by these principles, we cannot conclude that the Superintendent's decision disqualifying Buggé under N.J.S.A. 45:19A-4(c), based on his 1999 New York conviction for a misdemeanor offense, was "arbitrary, capricious or unreasonable, or that it lacked fair support in the evidence." Carter, 191 N.J. at 482. We conclude that Buggé's contrary arguments are without sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(1)(E), and we affirm substantially for the reasons expressed in the Superintendent's comprehensive written decision. R. 2:11-3(e)(1)(D).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION