Opinion
DOCKET NO. A-2185-11T1
04-19-2013
IN THE MATTER OF ARTHUR RICE, COUNTY OF UNION.
Stephen B. Hunter argued the cause for appellant Arthur Rice (Detzky & Hunter, LLC, attorneys; Mr. Hunter of counsel and on the brief). Denise Errico Esmerado argued the cause for respondent County of Union (Ruderman & Glickman, P.C., attorneys; Ms. Errico Esmerado, of counsel and on the brief). Jeffrey S. Chiesa, 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NOT FOR PUBLICATION WITHOUT THE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 Yannotti and Harris.
On appeal from the Civil Service Commission, Docket No. 2012-265.
Stephen B. Hunter argued the cause for appellant Arthur Rice (Detzky & Hunter, LLC, attorneys; Mr. Hunter of counsel and on the brief).
Denise Errico Esmerado argued the cause for respondent County of Union (Ruderman & Glickman, P.C., attorneys; Ms. Errico Esmerado, of counsel and on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondent Civil Service Commission (Pamela N. Ullman, Deputy Attorney General, on the statement in lieu of brief). PER CURIAM
Appellant Arthur Rice appeals from the November 29, 2011 final administrative action of the Civil Service Commission (Commission), which enforced the Commission's February 16, 2011 decision acknowledging a settlement agreement between Rice and respondent County of Union (County). The effect of the Commission's November action was to deny Rice an administrative appeal of his July 6, 2011 removal from office as a corrections officer. We affirm.
I.
On August 20, 2010, at the end of a one-year working test period, Rice's employment in the Union County Department of Corrections was terminated. Rice appealed to the Commission, which transferred the contested matter to the Office of Administrative Law (OAL) on September 23, 2010.
On December 10, 2010, after having "been afforded the opportunity to consider the terms of [a] Settlement Agreement with the advice of counsel . . . and his Union," Rice and the County entered into a Settlement Agreement and General Release (Settlement Agreement). On January 6, 2011, the assigned Administrative Law Judge (ALJ) "approve[d] the settlement and [ordered] that the parties comply with the settlement terms." On February 16, 2011, the Commission "acknowledged" the Settlement Agreement, and treated the matter as having been resolved.
In pertinent part, the Settlement Agreement provided that after Rice successfully submitted to a fitness for duty examination, he would be permitted to return to work as a corrections officer for "an extended/new one (1) year working test period," conditioned upon the following:
If Officer Rice commits or engages in any performance infractions whatsoever, including but not limited to, lateness, absenteeism, refusal to work overtime, during the [working test period], he will be terminated. Officer Rice can request a departmental hearing regarding the infraction, but if sustained, he will accept the penalty of termination. He also waives his right to appeal the determination to the Civil Service Commission (Office of Administrative Law) or to pursue the matter any further on any level, through any other forum; it stops at the departmental level.
[Emphasis added.]
On May 5, 2011, Rice was served with a Preliminary Notice of Disciplinary Action (PNDA) by the County, which indicated that Rice's removal was a potential disciplinary action to be taken. The PNDA contained the following charges:
N.J.A.C. 4A:2-2.3(a)The PNDA further specified the following "[i]incident(s) giving rise to the charge(s)":
4. Chronic or excessive absenteeism or lateness.
6. Conduct unbecoming a public employee.
7. Neglect of duty.
11. Other sufficient cause (violation of settlement agreement and General Release; violation of County Handbook, Abuse of Sick Leave).
Employee violated the Settlement Agreement and General Release by the use of sick days. Employee exceeded his allotted sick days and
failed to provide a medical note in support of his absences. Many of Employee's absences are also patterned with days off. Under such circumstances the Agreement provides that Employee will be terminated. Employee is a probationary employee and previously served an 89 working day suspension for his attendance.
Rice requested a departmental hearing, which was conducted by Steven H. Merman, Assistant Union County Counsel, on June 6, 2011. After considering the testimony of three witnesses and reviewing a series of documents presented by the parties, Merman issued a four-page memorandum to George W. Devanney, Union County Manager, which observed, "The employee was given the opportunity to improve his performance and show that he understood his obligation to come to work when scheduled, however his actions showed that he had not learned his lesson and the determination to terminate him last year was correct." Merman concluded, "the County has sustained the charges of violations of N.J.A.C. 4A:2-2.3(a)(4), [c]hronic or excessive absenteeism or lateness[,] and N.J.A.C. 4A:2-2.3(a)(11), other sufficient cause (violation of the Settlement Agreement and General Release, violation of County Handbook, abuse of sick leave)." Finally, Merman recommended that Rice's current employment be terminated.
Rice was represented by an attorney at this hearing.
Merman found that the County did not sustain the remaining charges.
Devanney concurred with Merman's recommendation and authorized the termination. On June 28, 2011, the County issued a Final Notice of Disciplinary Action, removing Rice from his employment effective on July 6, 2011. Rice appealed anew to the Commission, which transferred the matter to the OAL on August 1, 2011.
Ultimately, on the County's application, the Commission retrieved the matter from the OAL and rejected Rice's appeal as violative of the Settlement Agreement. It concluded, contrary to Rice's claim of ambiguity, that "the terms of the settlement clearly indicate and contemplate that Rice would waive his right to appeal the determination of a departmental hearing for a fixed period of time for specific offenses, such as lateness, absenteeism and refusal to work overtime, during his one-year extended working test period." Additionally, it held that "the [S]ettlement [A]greement should be enforced since Rice had competent representation of his choosing and entered into the agreement knowingly and voluntarily." Accordingly, the Commission ordered that "Rice's appeal of his July 6, 2011 removal be returned from the OAL and his request for a hearing be denied." This appeal followed.
II.
Our mission in reviewing actions of state administrative agencies is narrowly circumscribed:
Appellate courts have "a limited role" in the review of administrative agency determinations. In re Stallworth, 208 N.J. 182, 194 (2011) (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579 (1980)); In re Carter, 191 N.J. 474, 482 (2007). "In order to reverse an agency's judgment, an appellate court must find the agency's decision to be 'arbitrary, capricious, or unreasonable, or [] not supported by substantial credible evidence in the record as a whole.'" Stallworth, supra, 208 N.J. at 194 (alteration in original) (quoting Henry, supra, 81 N.J. at 579-80 (in turn citing Campbell v. Dep't. of Civil Serv., 39 N.J. 556, 562 (1963))).Nevertheless, we are not bound by an agency's "determination of strictly legal issue[s]." In re Carter, supra, 191 N.J. at 483. On such issues, our standard of review is plenary.
[In re Carluccio, 426 N.J. Super. 15, 24 (App. Div. 2012).]
As a matter of public policy, the courts of this State favor the enforcement of settlement agreements. Brundage v. Estate of Carambio, 195 N.J. 575, 601 (2008); see also Nolan v. Lee Ho, 120 N.J. 465, 472 (1990) (holding that settlements will usually be honored "absent compelling circumstances"). This policy acknowledges the self-evident "'notion that the parties to a dispute are in the best position to determine how to resolve a contested matter in a way which is least disadvantageous to everyone.'" Jennings v. Reed, 381 N.J. Super. 217, 226-27 (App. Div. 2005) (quoting Peskin v. Peskin, 271 N.J. Super. 261, 275 (App. Div.), certif. denied, 137 N.J. 165 (1994)); see also Dragon v. New Jersey Dep't of Envtl. Prot., 405 N.J. Super. 478, 491 (App. Div. 2009) (recognizing general ability to settle administrative proceedings). "Consequently, courts 'strain to give effect to the terms of a settlement wherever possible.'" Jennings, supra, 381 N.J. Super. at 227 (quoting Dep't of Pub. Advocate v. N.J. Bd. of Pub. Utils., 206 N.J. Super. 523, 528 (App. Div. 1985)).
Given the adversarial relationship between Rice and the County during the 2010 administrative proceeding, no settlement agreement could exist unless the parties agreed on "the essential terms of the agreement." Mosley v. Femina Fashions Inc., 356 N.J. Super. 118, 126 (App. Div. 2002), certif. denied 176 N.J. 279 (2003). However, once the parties agreed on the essential terms "and manifest[ed] an intention to be bound by those terms, they have created an enforceable contract." Weichert Co. Realtors v. Ryan, 128 N.J. 427, 435 (1992).
"An agreement to settle a lawsuit is a contract which, like all contracts, may be freely entered into and which a court, absent a demonstration of 'fraud or other compelling circumstances,' should honor and enforce as it does other contracts." Pascarella v. Bruck, 190 N.J. Super. 118, 124-25 (App. Div.) (quoting Honeywell v. Bubb, 130 N.J. Super. 130, 136 (App. Div. 1974)), certif. denied, 94 N.J. 600 (1983). To undo a settlement agreement, there must be "clear and convincing evidence" warranting such action. DeCaro v. DeCaro, 13 N.J. 36, 42 (1953).
Also,
"whether a contract provision is clear or ambiguous is a question of law." Grow Co. v. Chokshi, 403 N.J. Super. 443, 476 (App. Div. 2008). The court's role is to determine whether the provision in question is "susceptible to at least two reasonable alternative interpretations." Nester v. O'Donnell, 301 N.J. Super. 198, 210 (App. Div. 1997). "'If the language is plain and capable of legal construction, the language alone must determine the agreement's force and effect.'" CSFB 2001-CP-4 Princeton Park Corporate Ctr., LLC v. SB Rental I, LLC, 410 N.J. Super. 114, 120 (App. Div. 2009) (quoting FDIC v. Prince George Corp., 58 F.3d 1041, 1046 (4th Cir. 1995)). "To determine the meaning of the terms of an agreement by the objective manifestations of the parties' intent, the terms of the contract must be given their 'plain and ordinary meaning.'" Nester, supra, 301 N.J. Super. at 210 (quoting Kaufman v. Provident Life & Cas. Ins. Co., 828 F. Supp. 275, 283
(D.N.J. 1992), aff'd, 993 F.2d 877 (3d Cir. 1993)).
[Twp. of White v. Castle Ridge Dev. Corp., 419 N.J. Super. 68, 74-75 (App. Div. 2011).]
"[W]here the terms of a contract are clear and unambiguous there is no room for interpretation or construction and the courts must enforce those terms as written." Karl's Sales & Serv., Inc. v. Gimbel Bros., Inc., 249 N.J. Super. 487, 493 (App. Div.), certif. denied, 127 N.J. 548 (1991). The court has no right "to rewrite the contract merely because one might conclude that it might well have been functionally desirable to draft it differently." Ibid. (citation omitted).
Rice argues that regardless of the terms of the Settlement Agreement, he is entitled — pursuant to the State Administrative Procedure Act, N.J.S.A. 52:14B-1 to -25 — to an evidentiary hearing because his dispute with the County is a "contested case." He further contends that the Settlement Agreement is ambiguous, and adds — without a scrap of factual evidence or citation to legal authority — that he "did not knowingly waive his right to an administrative hearing" when he signed the Settlement Agreement. We are unpersuaded by these arguments.
First, we reject Rice's claim that Watson v. City of East Orange, 175 N.J. 442 (2003), "mandates the conclusion" that a so-called "last chance agreement" must be interpreted only as part of a de novo hearing before the OAL and that Rice is entitled to an appeal from the decision of the County to terminate his employment. In Watson, a municipal police officer was given a lenient sanction for improperly discharging his weapon while under the influence of alcohol, and the parties memorialized the terms of the officer's suspension in their last chance agreement. Id. at 444. The agreement set forth the requirement that before returning to work, the officer must complete a mutually acceptable program for alcohol recovery. Ibid. When he did not timely complete that obligation, he was terminated. Ibid. After the Merit System Board adopted an ALJ's findings that the last chance agreement was violated, the Court upheld that decision. Id. at 446.
The last chance agreement in Watson shares none of the attributes of the Settlement Agreement. Most prominently, Watson did not involve anything like Rice's covenant not to appeal the departmental determination to end his employment. The Settlement Agreement unequivocally provided: "[Rice] also waives his right to appeal the determination [of the departmental hearing] to the Civil Service Commission (Office of Administrative Law) or to pursue the matter any further on any level, through any other forum; it stops at the departmental level." Here, the parties bargained for a highly streamlined mechanism for dispute resolution, which excluded any review after the agreed-upon local determination. Moreover, Rice agreed that "he will accept the penalty of termination," without any conditions or exclusions. The Watson last chance agreement is entirely distinguishable from the Settlement Agreement, and Watson has no applicability to the present case.
We are thoroughly convinced that the County's PNDA charged Rice only with "performance infractions," which were fully anticipated by the Settlement Agreement.
--------
Our plenary review of the entire Settlement Agreement further confirms that the parties' plain intention was to bar Rice from seeking a review of the departmental hearing. There is nothing ambiguous about the language selected by the parties to memorialize their agreement. There is one and only one interpretation of the clause "it stops at the departmental level."
Furthermore, the circumstances surrounding the execution of the Settlement Agreement, see N.J.S.A. 52:14B-9(d) ("[u]nless precluded by law, informal disposition may be made of any contested case by stipulation, agreed settlement, or consent order"), confirm that Rice waived the right to appeal the determination of the County to the Commission. The Commission properly enforced the contractual waiver in the absence of any proof that it was the product of fraud, overreaching, or unconscionability.
The Commission, like a court, cannot rewrite contracts to favor a party, for the purpose of giving that party a better bargain. Relief is not available merely because enforcement of the contract causes oppression, improvidence, or because it produces hardship to one of the parties. Brunswick Hills Racquet Club, Inc. v. Route 18 Shopping Ctr. Assocs., 182 N.J. 210, 223 (2005). Neither an agency nor a court can "'abrogate the terms of a contract' unless there is a settled equitable principle, such as fraud, mistake, or accident, allowing for such intervention." Id. at 223-24 (quoting Dunkin' Donuts of America, Inc. v. Middletown Donut Corp., 100 N.J. 166, 183-84 (1985)). The record is bereft of any such evidence.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION