Opinion
DOCKET NO. A-1109-14T3
06-27-2016
IN THE MATTER OF FRANK J. RUSSO, OCEAN COUNTY, DEPARTMENT OF BUILDINGS AND GROUNDS
James N. Butler, Jr., argued the cause for appellant Frank Russo. Robert D. Budesa argued the cause for respondent Ocean County (Berry, Sahradnik, Kotzas & Benson, attorneys; Mr. Budesa, on the brief). Robert Lougy, Acting Attorney General, attorney for respondent New Jersey Civil Service Commission (Todd A. Wigder, Assistant Attorney General, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Ostrer and Manahan. On appeal from the New Jersey Civil Service Commission, Docket No. 2013-3119. James N. Butler, Jr., argued the cause for appellant Frank Russo. Robert D. Budesa argued the cause for respondent Ocean County (Berry, Sahradnik, Kotzas & Benson, attorneys; Mr. Budesa, on the brief). Robert Lougy, Acting Attorney General, attorney for respondent New Jersey Civil Service Commission (Todd A. Wigder, Assistant Attorney General, on the brief). PER CURIAM
Frank J. Russo appeals from a final determination of the Civil Service Commission (Commission) terminating his employment with Ocean County, Department of Building and Grounds. The Commission adopted the decision of the Administrative Law Judge (ALJ). Following our review of the arguments raised on appeal in light of the record and applicable law, we affirm.
The factual background and procedural history are fully set forth in the comprehensive written opinion of the ALJ, Lisa James-Beavers, dated August 11, 2014, and need not be repeated in the same level of detail here.
On August 24, 2011, A.B. entered the Ocean County Justice Complex with her daughter. At the time, A.B. had in her possession a digital camera. While proceeding through the security checkpoint, A.B. was advised by the sheriff's officer that she could not take the camera into the courthouse. As a result, the camera was checked. However, A.B. neglected to retrieve the camera when she left the courthouse on that day. The next day she contacted the sheriff's department and advised that she would be coming to the courthouse in a few days to retrieve the camera. Based upon that phone call, a sheriff's officer sought to locate the camera, but was not successful. The officer called A.B. and informed her that she would be contacted shortly.
Thereafter, an investigation was conducted by the sheriff's department. The officer assigned to lead the investigation viewed the video of the screening area. He noted that the camera was confiscated. Pursuant to their investigation, the sheriff's officers reviewed security tapes. They located and viewed a tape which depicted Russo entering the screening area. Russo was seen opening a cabinet and removing various items which included a bag that appeared to be a camera case. Russo was observed taking the case from the screening area.
Based upon review of the video, two sheriff's officers approached Russo and requested to speak to him. After Russo agreed, the officers engaged in questioning him. Prior to the questioning, Russo was provided with his Miranda rights, both in writing and orally. Russo admitted to taking the camera and acknowledged that it was wrong. He stated that he believed the item was lost and that nobody came for it. Russo said that he never took the camera home; however, he knew he was not supposed to take the camera and that it was a mistake.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Russo claimed that his reason for entering the cabinet was to obtain hand sanitizer. He also claimed that he intended to use the camera to photograph the complex based upon the pending Hurricane Sandy. However, when the camera was retrieved, the disc revealed photographs of Russo's family. --------
Russo was charged with disorderly persons offense of theft by unlawfully taking or exercising control over movable property. He was later convicted in municipal court of the offense. However, after filing an appeal of his conviction, a Law Division judge determined that his Miranda rights had been violated and found him not guilty. During the pendency of the criminal case, Ocean County initiated administrative disciplinary charges which resulted in Russo being removed from his employment. Russo appealed his termination and the matter was transferred to the Office of Administrative Law (OAL) as a contested case.
The ALJ conducted a hearing on May 12, 2014. The ALJ heard testimony from Detective Peter Glass of the Ocean County Sheriff's Department; Keith J. Getting, the Ocean County Director of Personnel; and from Russo. In a written decision, the ALJ found, among other things, that Russo had a position which provided him unfettered access to every room in the courthouse, including the judges' chambers. The judge also found that Russo had access on weekends when no one was present to observe him. She found that Russo served in a position of "great trust" and that he betrayed that trust by taking a camera that did not belong to him. Based upon his conduct which was not refuted, the judge determined that "applying progressive discipline would be contrary to the public interest" and concluded that the penalty of removal was justified.
On appeal, Russo argues that the ALJ committed reversible error by considering his statement which was obtained in violation of Miranda. Russo also argues that the ALJ erred in affirming the decision of Ocean County to terminate him. We initially note that our review is of the Commission's decision which adopted the ALJ's initial decision subsequent to its independent evaluation of the record.
Appellate review of an administrative agency decision is limited. 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). Appellant has the burden 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 generally defer to final agency actions, only "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 Prevention 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 inquires: (1) whether the agency's decision conforms with the 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 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, acknowledging the agency's "'expertise and superior knowledge of a particular field.'" Circus Liquors, Inc. v. Governing Body of Middletown Twp., 199 N.J. 1, 10 (2009) (quoting Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992)). We will not substitute our 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).
Our deference to agency decisions "applies to the review of disciplinary sanctions as well." Herrmann, supra, 192 N.J. at 28. "In light of the deference owed to such determinations, when reviewing administrative sanctions, the test . . . is whether such punishment is so disproportionate to the offense, in light of all the circumstances, as to be shocking to one's sense of fairness." Id. at 28-29 (internal citation and quotation marks omitted). "The threshold of 'shocking' the court's sense of fairness is a difficult one, not met whenever the court would have reached a different result." Id. at 29.
We commence our discussion by addressing the argument that it was erroneous for the ALJ to consider as evidentiary Russo's statement to the sheriff's officers. The decision precluding the use of that statement in the criminal proceeding does not preclude its use in the administrative proceeding as they are two different proceedings with different goals and standards of proof. Nor would there be a deterrent purpose served by excluding such evidence in an administrative proceeding in which the State is not a party. See Delguidice v. N.J. Racing Comm'n, 100 N.J. 79, 84-85 (1985). Further, there was other sufficient credible evidence adduced at the hearing to sustain the finding of Russo's misconduct, including the video of Russo removing the camera.
Regarding Russo's contentions that his conduct was not egregious enough to warrant removal, and that progressive discipline was required, our Supreme Court has held, "courts should take care not to substitute their own views of whether a particular penalty is correct for those of the body charged with making that decision." In re Carter, 191 N.J. 474, 486 (2007). While "progressive discipline is a worthy principle[,] . . . it is not subject to universal application when determining . . . [the] quantum of discipline." Herrmann, supra, 192 N.J. at 36.
The ALJ determined to bypass progressive discipline based upon Russo's position which provided him with virtually unlimited and, at times, unsupervised access to the courthouse and other public buildings. Russo's position involved a level of trust; a trust he violated by his unauthorized removal of the camera. As the ALJ reasoned, and we agree, anything short of termination would be in discord with the public interest.
Finally, we find no merit to Russo's claim that he was not afforded an appropriate departmental hearing by Ocean County prior to his termination of employment. To the extent that the hearing may have been procedurally infirm, it was "cured" by the de novo hearing before the ALJ.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION