Opinion
DOCKET NO. A-1545-12T4
06-18-2014
BARBARA COOPER, Appellant, v. NEW JERSEY STATE POLICE, Respondent.
Barbara Cooper, appellant pro se. John J. Hoffman, Acting Attorney General, attorney for respondent (Andrew J. Sarrol, Deputy Attorney General, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Messano and Hayden.
On appeal from the New Jersey State Police.
Barbara Cooper, appellant pro se.
John J. Hoffman, Acting Attorney General, attorney for respondent (Andrew J. Sarrol, Deputy Attorney General, of counsel and on the brief). PER CURIAM
Barbara Cooper appeals from the final agency decision of the Superintendent (the Superintendent) of the New Jersey State Police (NJSP) that 1) reversed the decision of the administrative law judge (ALJ), and 2) denied Cooper's application for a license pursuant to the Private Detective Act of 1939, N.J.S.A. 45:19-8 to - 27 (the PDA). Cooper contends the ALJ's findings and conclusions were "well-reasoned and appropriate," and that she met all the "criteria" for licensure.
We have considered the arguments in light of the record and applicable legal standards. We affirm the decision of the Superintendent.
There are no disputed facts. Cooper submitted an application for a private detective license to the NJSP in which she listed as prior police or investigative employment her work as a "specialist 3" for T-Mobile, from April 2003 to November 2009. Detective Sergeant Mark Kosko of the NJSP conducted a routine investigation of her application.
Kosko asked Cooper for a description of her duties, which she supplied a letter. Kosko also checked with Cooper's direct supervisor at T-Mobile's Law Enforcement Relations Division regarding her duties while employed at the company. In a letter to Kosko, the supervisor noted that, as a specialist assigned to his division, Cooper had "the responsibilities for subpoena and court order compliance along with testifying in court as the authorized custodian of records . . . ." He further explained that specialists "processed" subpoenas and court orders and "insure[d] facial correctness and the response from T-Mobile [were] within the scope of the subpoena or court order." Specialists also responded to "incoming emergency calls[,]" that might inquire about "subscriber information or location . . . ."
Upon completing the investigation, Kosko recommended denial of Cooper's application based upon N.J.S.A. 45:19-12 (Section 12). That portion of the PDA provides:
No license shall be issued to . . . any person, firm, association or corporation unless such person or at least one member of the firm and one officer or director of the association or corporation has had at least [five] years' experience as an investigator or as a police officer with an organized police department of the State or a county or municipality thereof, or with an investigative agency of the United States of America or any State, county or municipality thereof.The NJSP advised Cooper in writing that her application had been denied because she failed to qualify pursuant to Section 12.
[Ibid. (emphasis added).]
Cooper appealed, and the matter was transferred to the Office of Administrative Law as a contested case. Both Kosko and Cooper testified at a hearing before the ALJ. Kosko stated that, based upon his investigation and Cooper's supervisor's letter, none of her duties at T-Mobile were "investigative in nature." Kosko said certain "investigatory" positions outside of law enforcement might qualify under Section 12, such as working the required period of time as an investigator under someone already licensed, or being a "fraud investigator" for an insurance company. Describing generically the duties of an investigator, Kosko testified:
[A]n investigator would follow leads. He would interview. He would maybe [provide] courtroom testimony as part of his investigation, but . . . the investigation would start at one point. He would investigate it to a logical conclusion. That would be an investigation.
Cooper acknowledged that her letter and that of her supervisor essentially described her job duties at T-Mobile. When the judge asked her to describe what those functions "ha[d] to do with conducting an investigation[,]" Cooper detailed her activities assisting with wiretaps and other electronic data warrants conducted or secured by law enforcement. She described how she relayed information to officers regarding the location of "cell towers" that were being used by particular phones, and whether the subject phone was in use. Cooper also testified that as an investigation continued, she frequently was required to supply more information than what was originally requested in a subpoena. She provided a certification of appreciation awarded to her by the Drug Enforcement Agency and stated she was called upon to testify in courts outside of New Jersey.
On cross-examination, Cooper was unable to say with any specificity how much of the six years and eight months she worked at T-Mobile was actually spent doing this type of investigatory work, and how much was spent responding to subpoenas and court orders requesting information. She explained that every day might include some time spent at all these various tasks.
In his initial decision, the ALJ found that Cooper's "job duties involved processing subpoenas and court orders, handling incoming emergency calls, provisioning wiretaps, and testifying in court as custodian of records for T-Mobile." He also found that her "investigative duties arose when she responded to various calls from law enforcement and emergency services," and she would "track cell phone locations or research cell phone usage records . . . ." The ALJ further determined that Cooper "performed tasks that [were] investigatory in nature by conducting identity verifications of persons requesting information, following leads where a suspect ha[d] multiple phone numbers, accounts, or addresses, and finally tracing the cell phone records to determine a suspect's last physical location."
The ALJ concluded that the NJSP's determination that Cooper did not have the required five years of investigative experience was "arbitrary, capricious and unreasonable because it was not based upon established and subjective criteria." The ALJ found that the NJSP "failed to understand the value of [Cooper's] experience and knowledge of how to utilize cellular communication data," particularly given "the public's relatively recent heavy reliance on utilizing cellular communications . . . ." The ALJ also determined that the NJSP's use of "a different standard when . . . evaluating the investigatory experience of applicants that have five years of full time experience in law enforcement employment[,] and those whose experience is in non-law enforcement[,] appear[ed] to be problematic." He stated it this way:
I found as fact that [the NJSP] merely ascertains whether an applicant has five years of full time experience in law enforcement, but looks further into how much time an applicant that was not in law enforcement actually was involved in investigatory activities as part of his/her job duties. Not only does this add an unfair burden to non-law enforcement applicants, but is inherently arbitrary to expect a person to parse out how a person employed at T-Mobile spent his/her time each day.The ALJ ordered the NJSP to issue Cooper a license under the PDA. The NJSP filed exceptions to the ALJ's decision with the Superintendent.
In his final agency decision, the Superintendent focused initially on the ALJ's determination that the denial was arbitrary, capricious and unreasonable because it unfairly scrutinized Cooper's level of investigatory experience, as compared to an applicant with a law enforcement background. The Superintendent determined that Section 12 distinguished between applicants without law enforcement experience and those who had five-years' experience as police officers or as employees of other government investigative agencies. He further concluded that Section 12 required the State Police to conduct a detailed inquiry into the investigative experience of non-law enforcement applicants.
The Superintendent also determined that Cooper provided "very important service to law enforcement" through her technical assistance, which was "an important adjunct to a criminal investigation necessary to successfully conclude a case or advance an investigation further." However, he noted that Cooper "was not employed full time in this technical assistance role[,]" and rather "fulfilled the subpoena compliance function on a full time basis and the technical assistance as needed."
The Superintendent reversed the "findings of the [ALJ]" and concluded that Cooper failed "to meet the minim[um] requirements for licensing as set forth in [Section 12]." This appeal ensued.
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 State 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 Civil Service, 39 N.J. 556, 562 (1963)).
[T]he 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, supra, 191 N.J. at 483 (quoting Greenwood v. State 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)).
The Court construed Section 12 of the PDA in the seminal case of Schulman v. Kelly, 54 N.J. 364, 371 (1969):
We interpret the statutory requirement to be five years['] experience [a] as an investigator or [b] as a police officer with an organized police department of the State or a county or municipality thereof, or [c] with an investigative agency of the United States of America or any state, county or municipality thereof.Schulman makes clear that Section 12 applies a different standard for licensure of non-law enforcement applicants than it does for former members of police departments or other investigative agencies. The Superintendent fully appreciated this distinction in his final decision; the ALJ seemingly did not.
The PDA does not define the term "investigator." It does, however, define the term "private detective business" by referring to a non-exhaustive list of nine "matters" that such a business may "conduct investigations [of] for the purpose of obtaining information . . . ." N.J.S.A. 45:19-9(a). The Superintendent reviewed this definition in his final decision. He concluded that Cooper's work with T-Mobile involved a "narrow field" in which she "assist[ed] law enforcement agencies conducting investigations," but her experience did "not approach the scope and depth of an investigation such as that contemplated by the statute."
This list includes:
(1) crime or wrong done or threatened or assumed to have been done or threatened against the Government of the United States of America, or any State, Territory or Possession of the United States of America;
(2) the identity, habits, conduct, movements, whereabouts, affiliations, associations, transactions, reputation or character of any person, association, organization, society or groups of persons, firms or corporations; (3) the credibility of witnesses or other persons; (4) the whereabouts of missing persons; (5) the location or recovery of lost or stolen property; (6) the causes and origin of, or responsibility for, fires, libels, accidents, damage, injuries or losses to persons, firms, associations or corporations, or to real or personal property; (7) the affiliation, connection or relation of any person, firm or corporation with any organization, society, association, or with any official member or representative thereof; (8) with reference to the conduct, honesty, efficiency, loyalty or activities of employees, agents, contractors and subcontractors; (9) the securing of evidence to be used before any investigating committee, board of award, board of arbitration, or in the trial of any civil or criminal cause[.]
[N. J.S.A. 45:19-9(a).]
In Schulman, the Court noted that the plaintiff served six years as a "full-time investigator" for the board of freeholders, was certified "as an investigator" by the Civil Service Commission, performed "investigative tasks" for the county law department and welfare board, including investigations of fraud, accidents, and "welfare condition compliance," and searched for "missing husbands and putative fathers." Schulman, supra, 54 N.J. at 367. He also "headed an investigative unit composed of three former police officers and a former F.B.I. agent, and cooperated with local police forces in connection with raids and arrests necessitated by his investigations." Id. at 368. The Court specifically did not "consider the extent of the word 'investigator[,]'" as used in Section 12, although it concluded that the "plaintiff's occupation . . . [was] clearly encompassed thereby." Id. at 372.
In this case, the Superintendent certainly recognized the valuable services Cooper provided to various law enforcement agencies, and he credited her with direct technical assistance of those agencies in conducting their investigations. However, Cooper and her direct supervisor at T-Mobile acknowledged that these duties were not performed on a daily basis, nor were they the major component of her work. As a result, we cannot conclude that the Superintendent's decision that Cooper failed to meet the minimum licensure requirements of Section 12 was "arbitrary, capricious or unreasonable, or that it lacked fair support in the evidence." Carter, supra, 191 N.J. at 482.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION