Opinion
DOCKET NO. A-1944-09T2
12-15-2011
IN THE MATTER OF JAMIE MCCARRON, TOWNSHIP OF MIDDLETOWN.
Loccke, Correia, Limsky & Bukosky, attorneys for appellant Jamie McCarron (Merick H. Limsky, on the brief). Bernard M. Reilly, LLC, attorney for respondent Township of Middletown (Richard C. Leahey, Jr., on the brief). Paula T. Dow, Attorney General, attorney for respondent Civil Service Commission (Pamela N. Ullman, Deputy Attorney General, on the statement in lieu of brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Graves and Harris.
On appeal from the Civil Service Commission,
CSC Docket No. 2005-4965.
Loccke, Correia, Limsky & Bukosky, attorneys
for appellant Jamie McCarron (Merick H.
Limsky, on the brief).
Bernard M. Reilly, LLC, attorney for
respondent Township of Middletown (Richard
C. Leahey, Jr., on the brief).
Paula T. Dow, Attorney General, attorney for
respondent Civil Service Commission (Pamela
N. Ullman, Deputy Attorney General, on the
statement in lieu of brief).
PER CURIAM
Jamie C. McCarron appeals the Final Administrative Action of the Civil Service Commission (the Commission) terminating his employment with the Middletown Police Department (the Department). We affirm.
The Commission's decision was based upon several instances of untoward conduct, including a mishandled burglary investigation, along with an unfavorable fitness-for-duty evaluation. McCarron applied for, and was granted, ordinary disability retirement based upon his medical condition. He contends on appeal that because the effective date of his retirement was four days prior to the date of his termination, the Commission's ruling should be reversed as moot. We disagree, because the Commission's grounds for termination were not solely based upon McCarron's medical or psychological unfitness to serve as a law enforcement officer. In addition, if McCarron's disability abates, he could be reinstated to the Department, which prospect obviates any mootness.
I.
McCarron was employed as a police officer by Middletown Township from July 1997 until May 2005. In December 2004, Middletown's chief of police ordered McCarron to submit to a psychological fitness-for-duty examination. Following six hours of testing and interviewing, a psychological report was issued later that month finding McCarron "not fit for duty." After taking an authorized paid sick leave, McCarron applied for ordinary disability retirement in mid-January 2005.
On January 24, 2005, Middletown issued a preliminary notice of disciplinary action seeking to terminate McCarron's employment with the Department. The charges included incompetence, inefficiency, failure to perform duties, insubordination, inability to perform duties, neglect of duty, violation of the Department's rules and regulations, and more specifically, failure to properly investigate a burglary in early December 2004.
A final notice of disciplinary action against McCarron was issued by Middletown on May 5, 2005, terminating his employment effective that day. McCarron filed a timely appeal of his termination with the Merit System Board.
On June 30, 2008, the functions, powers, and duties of the Merit System Board were transferred to the newly-created Civil Service Commission. N.J.S.A. 11A:11-1.
One year later, on May 9, 2006, the Department of the Treasury, Division of Pensions and Benefits (the Division), approved McCarron's application for ordinary disability retirement. The Division set the effective date of the retirement as May 1, 2005, four days before Middletown issued its final notice of disciplinary action.
Meanwhile, the disciplinary proceeding continued to be processed in the Office of Administrative Law (OAL). McCarron moved for summary decision, N.J.A.C. 1:1-12.5, on the ground of mootness, but the Administrative Law Judge (ALJ) denied the motion. After several days of testimonial hearings, the ALJ issued a twenty-three page written decision upholding Middletown's decision to terminate McCarron.
The ALJ heard testimony in support of Middletown's case from six police officers and supervisors. These witnesses indicated that McCarron: (1) was involved in multiple motor vehicle accidents with police vehicles, two of which were found to be his fault or preventable; (2) failed to maintain his breathalyzer certificate; (3) mishandled a burglary investigation; (4) was observed standing alone in the dark in front of a mirror in the police bathroom talking to himself; (5) was seen exhibiting odd behavior by staring at his vehicle for long periods of time; (6) overreacted to constructive criticism; (7) interfered with other police officers' investigations by conducting excessive follow-ups; (8) displayed paranoid and agitated behavior; and (9) was too emotionally involved in his work.
The ALJ also considered the evidence presented by two psychologists who testified for Middletown, and a psychiatrist and a psychologist who testified on behalf of McCarron. These experts differed as to whether McCarron was psychologically fit to serve as a law enforcement officer. The ALJ found all of the experts "very qualified, but not equal in experience and training regarding fitness-for-duty evaluations of law enforcement officers."
Ultimately, the ALJ concluded that "[t]he law enforcement witnesses for [Middletown] provided credible testimony. They were unbiased, worked with [McCarron] and observed his behavior." The ALJ determined that McCarron: (1) "exhibited abnormal behavior"; (2) "is incompetent to perform his police duties"; and (3) "was untruthful" and "insubordinate." Additionally, after "giv[ing] greater weight to the credibility and testing and interviewing of [McCarron] by [Middletown's experts]" the ALJ concluded that Middletown "proved the charges by a preponderance of the credible evidence and that [McCarron] is psychologically unfit for duty." Accordingly, the ALJ upheld McCarron's termination.
Following a de novo review, on July 28, 2009, the Commission entered a Final Administrative Action that adopted the ALJ's findings of fact and conclusion. Later, on November 6, 2009, the Commission denied McCarron's application for reconsideration pursuant to N.J.A.C. 4A:2-1.6(b). This appeal followed.
The rule allows reconsideration if the movant: provides "new evidence or additional information not presented at the original proceeding which would change the outcome and the reasons that such evidence was not presented at the original proceeding" or demonstrates "that a clear material error has occurred." Ibid.
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I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION
II.
Firmly established doctrine governs our task on appeal. Appellate review of an administrative agency decision is limited. See In re Herrmann, 192 N.J. 19, 27 (2007). A strong presumption of reasonableness attaches to the Commission's decision. In re Carroll, 339 N.J. Super. 429, 437 (App. Div.), certif. denied, 170 N.J. 85 (2001). The burden is on McCarron to demonstrate grounds for reversal. McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 563 (App. Div. 2002); see also Bowden v. Bayside State Prison, 268 N.J. Super. 301, 304 (App. Div. 1993) (holding that "[t]he burden of showing the agency's action was arbitrary, unreasonable, or capricious rests upon the appellant"), certif. denied, 135 N.J. 469 (1994).
"Appellate courts ordinarily accord deference to final agency actions, reversing those actions if they are 'arbitrary, capricious or unreasonable or [if the action] is not supported by substantial credible evidence in the record as a whole.'" N.J. Soc'y for the Prev. of Cruelty to Animals v. N.J. Dep't of Agric., 196 N.J. 366, 384-85 (2008) (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980)) (alteration in original). Under the arbitrary, capricious, and unreasonable standard, our scope of review is guided by three major inquiries: (l) whether the agency's decision conforms with relevant law; (2) whether the decision is supported by substantial credible evidence in the record; and (3) whether in applying the law to the facts, the administrative agency clearly erred in reaching its conclusion. In re Anthony Stallworth, 208 N.J. 182, 194 (2011). When an agency decision satisfies such criteria, we accord substantial deference to the agency's fact-finding and legal conclusions, while acknowledging the agency's "expertise and superior knowledge of a particular field." Circus Liquors, Inc. v. Middletown Twp., 199 N.J. 1, 10 (2009) (quoting Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (l992)). We will not substitute our own judgment for the agency's even though we might have reached a different conclusion. Stallworth, supra, 208 N.J. at 194; see also In re Taylor, 158 N.J. 644, 656 (1999) (discussing the narrow appellate standard of review for administrative matters).
McCarron submits that the "sole issue before the Court [is] whether [McCarron] was rightfully terminated from employment after failing a psychological exam." Moreover, he contends that once the Division determined his retirement date was effective as of May 1, 2005, then Middletown's four-days-later decision to terminate his employment based upon an unfavorable fitness-for- duty examination was ineffective, thus rendering the disciplinary process moot. Furthermore, since McCarron filed for ordinary disability retirement prior to Middletown's service upon him of the preliminary notice of disciplinary action, there was no attempt by him "to manipulate the system." Finally, McCarron contends that the Division made its determination concerning his ordinary disability retirement with contemporaneous knowledge of his pending disciplinary actions.
Mootness, whether in a judicial or administrative forum, is defined as the inability of the tribunal to grant relief, as its decision can have no practical effect on an existing controversy. See Pressler and Verniero, Current N.J. Court Rules, comment 1.2 on R. 2:8-2 (2012) (citing Marjarum v. Twp. of Hamilton, 336 N.J. Super. 85, 92 (App. Div. 2000)); see also N.J. Div. of Youth and Family Servs. v. A.P., 408 N.J. Super. 252, 261 (App. Div. 2009) (citing Greenfield v. N.J. Dep't. of Corrs., 382 N.J. Super. 254, 257-58 (App. Div. 2006)).
The New Jersey Supreme Court held in In re Yaccarino, 101 N.J. 342 (1985), that parallel proceedings —— a judicial removal proceeding brought pursuant to N.J.S.A. 2A:1B-1 to -11, and an application for disability retirement pursuant to N.J.S.A. 43:6A-12 —— do not negate one another. The Court specifically held that "[Yaccarino's] application for a retirement based on medical disability cannot supplant these judicial-removal proceedings." Id. at 395. In like vein, we view nothing in the Division's ultimate pronouncement of McCarron's retirement date as supplanting the Commission's determination of whether McCarron was fit to serve as a Middletown law enforcement officer.
Additionally, in the absence of the disciplinary proceeding, because McCarron was in receipt of an ordinary disability retirement allowance, he retained the statutory opportunity to attempt to demonstrate that "the disability which existed at the time he was retired has vanished or has materially diminished." N.J.S.A. 43:16A-8(2); see also N.J.A.C. 4A:4-7.12. If successful in such an endeavor, McCarron could be restored to active service with his former employer. Plainly, however, the determination of the Commission would disqualify such an unbridled restoration, making its determination of great practical significance and decidedly not moot.
Lastly, McCarron argues that the Commission erred in relying upon a supposed fallacious psychological test that was administered by Middletown's psychologists during their fitness-for-duty examination. Our review of the record convinces us that the Commission's ultimate determination was based upon a thorough and far-ranging exploration of McCarron's employment conduct, and did not significantly rely upon the challenged psychological protocol. In view of the totality of the evidence arrayed against him, we consider McCarron's contentions on this issue as without sufficient merit to warrant further discussion. R. 2:11-3(e)(1)(D) and (E).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION