IN THE MATTER OF SEAN LAVIN, MERCER COUNTY SHERIFF'S DEPARTMENT (CIVIL SERVICE COMMISSION) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE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.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1802-15T1
IN THE MATTER OF SEAN LAVIN,
MERCER COUNTY SHERIFF'S
DEPARTMENT.
______________________________
Submitted January 25, 2018 – Decided July 17, 2018
Before Judges Simonelli, Haas and Gooden
Brown.
On appeal from the Civil Service Commission,
Docket No. 2014-1760.
Fusco & Macaluso Partners, LLC, attorneys for
appellant Sean Lavin (Amie E. DiCola, on the
brief).
Arthur R. Sypek, Jr., Mercer County Counsel,
attorney for respondent Mercer County
Sheriff's Department (Kristina E. Chubenko,
Assistant County Counsel, of counsel and on
the brief).
Gurbir S. Grewal, Attorney General, attorney
for respondent Civil Service Commission
(Valentina M. DiPippo, Deputy Attorney
General, on the statement in lieu of brief).
PER CURIAM
Sean Lavin, a former Mercer County Sheriff's Officer, appeals
from the November 19, 2015 final agency decision of the Civil
Service Commission (Commission), adopting the Administrative Law
Judge's (ALJ) initial decision upholding the Mercer County
Sheriff's Department's (Department) indefinite suspension of Lavin
without pay following the filing of criminal charges against him.
We affirm.
On December 12, 2013, while employed as a Mercer County
Sheriff's Officer, Lavin was charged in a criminal complaint with
two counts of second-degree official misconduct, N.J.S.A. 2C:30-
2(a). The complaint arose out of allegations that on December 6,
2013, Lavin pepper sprayed "an arrestee in the face while she was
handcuffed behind her back" and subsequently filed a false
investigation report in connection with the incident and
"attempted to cause subordinate officers" to do the same.
Based on the criminal complaint, on December 12, 2013, the
Department issued a Notice of Informal Pre-Termination Hearing
(NIPH), charging Lavin with conviction of a crime, N.J.A.C. 4A:2-
2.3(a)(5); conduct unbecoming a public employee, N.J.A.C. 4A:2-
2.3(a)(6); and other sufficient cause, N.J.A.C. 4A:2-2.3(a)(12),
specifically "[i]nappropriate physical contact or mistreatment of
a patient, client, resident, or employee." Lavin waived his right
to an informal pre-termination hearing.
The following day, the Department served Lavin with a
Preliminary Notice of Disciplinary Action (PNDA), incorporating
2 A-1802-15T1
the charges contained in the NIPH and seeking his removal and
immediate indefinite suspension pending resolution of the criminal
charges. After Lavin waived his right to a departmental hearing,
the Department issued a Final Notice of Disciplinary Action (FNDA),
suspending Lavin indefinitely, effective December 13, 2013,
pending the resolution of the criminal charges. On January 15,
2014, Lavin filed a timely appeal, which was transmitted to the
Office of Administrative Law (AOL) as a contested case on January
24, 2014.
On May 15, 2014, Lavin was indicted by a Mercer County Grand
Jury based on the December 6, 2013 incident, and charged with
three counts of second-degree official misconduct, N.J.S.A. 2C:30-
2(a), and one count of third-degree tampering with public records
or information, N.J.S.A. 2C:28-7(a)(1). On October 20, 2014, on
Lavin's motion, the indictment was dismissed without prejudice,
and on December 10, 2014, Lavin was re-indicted on the same
charges.
On February 27, 2015, over Lavin's objection, the Department
moved for summary disposition, seeking the dismissal of Lavin's
administrative appeal based upon the pending criminal charges,
and, at Lavin's request, the ALJ held the record open to allow
Lavin to resolve the charges. On October 5, 2015, Lavin was
admitted into the Pre-Trial Intervention Program (PTI) for a period
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of eighteen months, subject to the condition that he resign from
his position as a Mercer County Sheriff's Officer effective October
2, 2015, and not seek future employment with Mercer County. Lavin
resigned his position, effective October 2, 2015,1 and the ALJ
closed the record on October 27, 2015, upon receipt of the PTI
order.
In an initial decision issued on October 29, 2015, the ALJ
granted the Department's motion for summary disposition.
Preliminarily, the ALJ noted that "[a] summary decision motion is
the administrative law equivalent of a summary judgment motion"
and could be granted where, as here, "there are no 'genuine
disputes' of 'material fact.'"2 Next, acknowledging that the
merits of the underlying charges were not at issue in the appeal,
the ALJ determined that, pursuant to N.J.A.C. 4A:2-2.7(a)(1),
"[t]he sole issue before [him] [was] whether the public interest
would best be served by suspending the employee until disposition
of the criminal indictment." The ALJ concluded the Department had
1
On November 4, 2016, an order was entered dismissing the
indictment upon Lavin's successful completion of the PTI program.
2
Under N.J.A.C. 1:1-12.5(b), the standard for a State agency's
decision to grant a motion for summary decision is "substantially
the same as that governing a motion" for summary judgment by a
trial court under Rule 4:46-2. Contini v. Bd. of Educ. of Newark,
286 N.J. Super. 106, 121 (App. Div. 1995).
4 A-1802-15T1
presented sufficient evidence to support Lavin's indefinite
suspension and recommended dismissal of the appeal.3
Thereafter, Lavin filed exceptions to the ALJ's decision. On
November 19, 2015, the Commission issued a final decision adopting
the ALJ's findings, conclusions, and recommendation, and dismissed
the appeal. This appeal followed. On appeal, Lavin presents the
following argument for our consideration:
THE COURT SHOULD REVERSE THE CIVIL SERVICE
COMMISSION'S FINAL ADMINISTRATIVE ACTION
BECAUSE THE COMMISSION'S DECISION TO SUMMARILY
DISPOSE OF SGT. LAVIN'S APPEAL WAS ARBITRARY
AND CAPRICIOUS AS IT WAS MANIFESTLY MISTAKEN
AND NOT SUPPORTED BY THE RECORD. AS SUCH,
SGT. SEAN LAVIN IS ENTITLED TO A FULL HEARING
ON THE ISSUE OF WHETHER HE WAS PROPERLY
SUSPENDED IN ACCORDANCE WITH [N.J.A.C.] 4A:2-
2.7.
Our review of an agency's decision is limited. In re
Stallworth, 208 N.J. 182, 194 (2011). We "afford[] a 'strong
presumption of reasonableness' to an administrative agency's
exercise of its statutorily delegated responsibilities." Lavezzi
v. State, 219 N.J. 163, 171 (2014) (quoting City of Newark v. Nat.
Res. Council, Dep't of Envtl. Prot., 82 N.J. 530, 539 (1980)).
Thus, a reviewing court "should not disturb an administrative
agency's determinations or findings unless there is a clear showing
3
The ALJ noted that "[i]f the criminal charges did not result in
a forfeiture of office, the [Department] would be required to
issue a second [PNDA] specifying the charges" for Lavin's removal.
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that (1) the agency did not follow the law; (2) the decision was
arbitrary, capricious, or unreasonable; or (3) the decision was
not supported by substantial evidence." In re Virtua-West Jersey
Hosp. Voorhees for a Certificate of Need, 194 N.J. 413, 422 (2008).
While "we are not bound by the agency's interpretation of a statute
or resolution of a question of law[,]" In re Carroll, 339 N.J.
Super. 429, 437 (App. Div. 2001), nonetheless, the party
challenging the agency's action has the burden of proving the
action was arbitrary, capricious, or unreasonable. Lavezzi, 219
N.J. at 171.
Lavin argues the ALJ gave no consideration to "whether [he]
received a proper departmental hearing, whether the [Department]
failed to address the administrative charges after the dismissal
of the first indictment, and whether there existed genuine issues
of material fact," by virtue of the "varying accounts of what
occurred" during the December 6, 2013 incident. As such, Lavin
asserts, "the resulting [f]inal [a]dministrative [a]ction is
correspondingly defective." We disagree.
N.J.S.A. 11A:2-13 provides for
the immediate suspension of an employee
without a hearing if the appointing authority
determines that the employee is unfit for duty
or is a hazard to any person if allowed to
remain on the job or that an immediate
suspension is necessary to maintain safety,
6 A-1802-15T1
health, order or effective direction of public
services.
Where the "suspension is based on a formal charge of a crime of
the first, second or third degree, or a crime of the fourth degree
if committed on the job or directly related to the job, the
suspension may be immediate and continue until a disposition of
the charge." Ibid. N.J.A.C. 4A:2-2.7(a) establishes the following
procedures for hearings and suspensions with or without pay:
When an appointing authority suspends an
employee based on a pending criminal complaint
or indictment, the employee must be served
with a [PNDA]. . . .
1. The employee may request a
departmental hearing within five
days of receipt of the Notice. If
no request is made within this
time, . . . the appointing
authority may then issue [a] [FNDA]
under (a)3 below. A hearing shall
be limited to the issue of whether
the public interest would best be
served by suspending the employee
until disposition of the criminal
complaint or indictment. The
standard for determining that issue
shall be whether the employee is
unfit for duty or is a hazard to any
person if permitted to remain on the
job, or that an immediate suspension
is necessary to maintain safety,
health, order, or effective
direction of public services.
2. The appointing authority may
impose an indefinite suspension to
extend beyond six months where an
employee is subject to criminal
7 A-1802-15T1
charges as set forth in N.J.A.C.
[4]
4A:2-2.5(a)(2), but not beyond the
disposition of the criminal
complaint or indictment.
i. Where an employee who
has been indefinitely
suspended enters
[PTI] . . . , the
criminal complaint or
indictment shall not be
deemed disposed of until
completion of PTI . . . .
. . . .
3. Where the appointing authority
determines that an indefinite
suspension should be imposed, [an]
[FNDA] shall be issued stating that
the employee has been indefinitely
suspended pending disposition of
the criminal complaint or
indictment.
Here, Lavin does not dispute that "he [was] a member of the
Mercer County Sheriff's [Department], and, as such, . . . a law
enforcement officer . . . bound to uphold, promote and enforce the
laws of the State of New Jersey." Further, it is undisputed that
Lavin was charged criminally on December 12, 2013, with second-
degree charges related to his job, which charges ultimately caused
his resignation on October 2, 2015, and were dismissed on November
4
Under N.J.A.C. 4A:2-2.5(a)(2), "[a]n employee may be suspended
immediately when the employee is formally charged with a crime of
the first, second or third degree, or a crime of the fourth degree
on the job or directly related to the job."
8 A-1802-15T1
4, 2016 upon his successful completion of the PTI program. Equally
undisputed is the fact that Lavin was suspended pending the
disposition of the criminal charges and afforded all the
protections enunciated in N.J.A.C. 4A:2-2.7.
Despite Lavin's assertions to the contrary, there were no
genuine issues of material fact, and the matter was appropriate
for summary disposition. "It is well-established that where no
disputed issues of material fact exist, an administrative agency
need not hold an evidential hearing in a contested case." Frank
v. Ivy Club, 120 N.J. 73, 98 (1990). Lavin has not established
that the Commission's determination was arbitrary, capricious, or
unreasonable, or that it lacked fair support in the record as a
whole. Karins v. City of Atlantic City, 152 N.J. 532, 540 (1998).
Thus, the strong presumption of reasonableness attached to a
decision of the Commission is warranted in this case. In re
Carroll, 339 N.J. Super. at 437.
Affirmed.
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