IN THE MATTER OF THE LICENSE OF JAMES K. JOHNSTON, ETC. (NEW JERSEY STATE BOARD OF PROFESSIONAL ENGINEERS AND LAND SURVEYORS) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE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-1048-20
IN THE MATTER OF THE
LICENSE OF JAMES K.
JOHNSTON, P.E., P.P. LICENSE
NO. 24GE03527300 TO PRACTICE
AS A PROFESSIONAL ENGINEER
IN THE STATE OF NEW JERSEY.
_______________________________
Argued October 12, 2021 – Decided December 27, 2021
Before Judges Sabatino and Rothstadt.
On appeal from the New Jersey State Board of
Professional Engineers and Land Surveyors, Division
of Consumer Affairs, Department of Law and Public
Safety.
Donald R. Belsole argued the cause for appellant James
K. Johnston (Belsole and Kurnos, LLC, attorneys;
Donald R. Belsole and Kevin Weinman, on the briefs).
Daniel Hewitt, Deputy Attorney General, argued the
cause for respondent New Jersey State Board of
Professional Engineers and Land Surveyors (Andrew J.
Bruck, Acting Attorney General, attorney; Donna
Arons, Assistant Attorney General, of counsel; Daniel
Hewitt, on the brief).
PER CURIAM
James K. Johnston appeals from the November 10, 2020 thirty-three page,
final decision and order of the State Board of Professional Engineers and Land
Surveyors (the Board), revoking his license to practice as a professional
engineer in the State of New Jersey, but permitting him to reapply for a license
five years later. In revoking Johnston's license, the Board relied on his criminal
conviction for making illegal campaign contributions, 1 which the Board
concluded, and the parties agreed, was a crime "relating adversely to the practice
of engineering" under N.J.S.A. 45:1-21.2 On appeal, Johnston contends the
revocation was unreasonable and that the Board failed to "adequately consider
1
On April 12, 2017, Johnston pled guilty to the fourth-degree offense of making
campaign contributions to persons running for public office in the State of New
Jersey, N.J.S.A. 19:44A-20.1. During his plea hearing, he testified he was
employed as an officer at the Birdsall Services Group (Birdsall), where, as part
of his compensation, the corporation paid him bonuses that he was then
instructed to use to make political campaign contributions. The court sentenced
Johnston to two years' probation, conditioned upon 270 days incarceration and
forfeiture of $93,720, and barred him from submitting a bid, entering a contract,
or conducting any business with any branch of government in the state.
2
The statute was amended on May 11, 2021, with an effective date of August
9, 2021, to require the conviction to have "a direct or substantial relationship to
the activity regulated by the Board or is of a nature such that certification,
registration or licensure of the person would be inconsistent with the public 's
health, safety, or welfare." L. 2021, c. 81, §1. We apply the statute as it read at
the time of the Board's determination.
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all mitigating circumstances and evidence." We disagree and affirm,
substantially for the reasons stated by the Board in its written decision.
The matter came before the Board after the Attorney General filed a
complaint with it, seeking to revoke Johnston's license based upon his criminal
conviction. In response, Johnston conceded his criminal conviction was
adversely related to his practice of engineering, but he asserted the affirmative
defense of laches, arguing seven years had passed since his indictment and three
years since entering his guilty plea. He also argued the undue delay in filing the
complaint to revoke his license in addition to the renewal of his license during
those intervening years gave him "a false sense of security that everything was
concluded and behind him."
The Board considered the matter on October 15, 2020, at a hearing where
Johnston testified, documentary evidence was submitted, and the parties
presented oral argument. 3 Thereafter, the Board issued an oral decision at the
3
A complaint to revoke Johnston's license was also filed by the Attorney
General with the State Board of Professional Planners. The parties agreed to
consolidate the hearings before the two professional boards. While the hearing
was held jointly, the Board noted in its opinion that "each Board deliberated
separately during the liability and penalty phases to make its own
determinations." The record before us does not contain an opinion or order from
the Board of Professional Planners, and according to Johnston's notice of appeal,
he is appealing only the Board's decision.
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3
conclusion of the hearing and then issued its written decision and order on
November 10, 2020.
In its written decision, the Board concluded Johnston's argument about
undue delay was without merit, and, therefore, denied a motion he had made to
dismiss based on his affirmative defense.4 As to the delay, the Board agreed
with the Attorney General that there was a need to wait until the criminal
proceeding was complete before moving forward to revoke his license, which i t
viewed as a "common practice." Further, "[t]he Board [found] that the three-
year timeframe between [Johnston's] criminal conviction until the filing of the
complaint in no way prejudiced" him because the "delay during this time was in
part due to [his] participation in settlement negotiations" with the Board, which
were unsuccessful.
4
While the matter was pending before the Board, Johnston filed a motion to
delay the proceeding, arguing that the Board failed to have a quorum when only
five members of the Board out of the seven current members were in attendance
(three member seats were vacant at the time and two members had to recuse
themselves from the proceeding). The Board determined, pursuant to N.J.S.A.
45:1-2.2(d), the statute required a majority of the currently seated members to
participate, which was four, and, thus, a quorum was met.
A-1048-20
4
The Board then addressed whether Johnston's conviction met the criteria
under N.J.S.A. 45:1-21(f),5 and noted both parties had "already agreed that the
criminal conviction constitute[d] a crime relating adversely to the practice of
engineering." While the Attorney General argued Johnston's conviction was
also a crime involving moral turpitude, the Board determined that was an
unnecessary finding "as the statutory predicate for the suspension or revocat ion
of a license is fully satisfied upon a finding of a conviction of a crime relating
adversely to the practice of engineering" alone.
5
N.J.S.A. 45:1-21(f), as it existed before August 2021, read in pertinent part as
follows:
A board may refuse to admit a person to an examination
or may refuse to issue or may suspend or revoke any
certificate, registration or license issued by the board
upon proof that the applicant or holder of such
certificate, registration or license:
....
f. Has been convicted of, or engaged in acts
constituting, any crime or offense involving moral
turpitude or relating adversely to the activity regulated
by the board. For the purpose of this subsection a
judgment of conviction or a plea of guilty, non vult,
nolo contendere or any other such disposition of alleged
criminal activity shall be deemed a conviction.
A-1048-20
5
When determining the penalty to be imposed, the Board considered:
letters and character references submitted on Johnston's behalf, his testimony to
the Board, other Board cases that Johnston's counsel presented to distinguish
this case from others, the parties' oral arguments, and the Board's decisions about
the discipline imposed on others in the Birdsall criminal matter that resulted in
revocation of licenses. After highlighting its position that it considered this to
be a very serious crime, the Board revoked Johnston's license, but permitted him
to reapply for licensure after five years. It also assessed the costs incurred to
litigate this proceeding, in the amount of $5,640.18. This appeal followed.
Our "review of agency determinations is limited." Allstars Auto Grp., Inc.
v. N.J. Motor Vehicle Comm'n, 234 N.J. 150, 157 (2018) (citations omitted).
"An administrative agency's final quasi-judicial decision will be sustained
unless there is a clear showing that it is arbitrary, capricious, or unreasonable,
or that it lacks fair support in the record." Ibid. (quoting Russo v. Bd. of Trs.,
Police & Firemen's Ret. Sys., 206 N.J. 14, 27 (2011)).
In reviewing the agency's decision, we consider:
(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
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erred in reaching a conclusion that could not reasonably
have been made on a showing of the relevant factors.
[Ibid. (quoting In re Stallworth, 208 N.J. 182, 194
(2011)).]
In our review we "must be mindful of, and deferential to, the agency's
'expertise and superior knowledge of a particular field.'" Id. at 158 (quoting
Circus Liquors, Inc. v. Governing Body of Middletown Twp., 199 N.J. 1, 10
(2009)). We "may not substitute [our] own judgment for the agency's, even
though [we] might have reached a different result." Ibid. (quoting Stallworth,
208 N.J. at 194). However, we are "in no way bound by [an] agency's
interpretation of a statute or its determination of a strictly legal issue." Ibid.
(alteration in original) (quoting Div. Youth & Fam. Servs. v. T.B., 207 N.J. 294,
302 (2011)). On any challenge to any decision, the burden of proof lies with the
party challenging the agency decision. A.M. v. Monmouth Cnty. Bd. of Soc.
Servs., 466 N.J. Super. 557, 565 (App. Div. 2021).
With those guiding principles in mind, we begin by addressing Johnston's
contention that the Board acted outside its authority when it imposed sanctions
after determining Johnston's actions that led to the conviction "cast[ed] a stain
upon the profession and [shook] the public's trust." According to Johnston, "it
does not appear the Board is broadly charged in guarding the public trust." Also,
A-1048-20
7
and contrary to his concession before the Board, on appeal he argues his conduct
was not related to his professional license. We disagree.
When considering whether to revoke a professional license, the Board is
required to follow the Uniform Enforcement Act (Act), N.J.S.A. 45:1-14 to -27.
In its adoption of the Act, the Legislature determined "uniform investigative and
enforcement powers and procedures and uniform standards for license
revocation, suspension and other disciplinary proceedings by [professional and
occupational boards within the Division of Consumer Affairs]" were required to
best protect the public. 6 N.J.S.A. 45:1-14. Under the Act, the Board is permitted
to revoke a license given to someone who "[h]as been convicted of, or engaged
in acts constituting, any crime or offense involving moral turpitude or relating
adversely to the activity regulated by the [B]oard." N.J.S.A. 45:1-21(f) (adding
that a plea of guilty is deemed a conviction). Also, the Board's purpose is "to
safeguard life, health and property, and promote the public welfare." N.J.S.A.
45:8-27. In pursuit of that goal, "any person practicing or offering to practice
professional engineering or professional land surveying in this State [is]
6
N.J.S.A. 45:1-15 provides that the State Board of Professional Engineers and
Land Surveyors is subject to this Act.
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required to submit evidence [to the Board] that he is qualified so to practice."
Ibid.Therefore, "[l]icenses to practice professional engineering . . . are
required as a matter of public policy." Hyland v. Ponzio, 159 N.J. Super. 233,
237 (App. Div. 1978). When construing the statute liberally "in order to effect
the declared or clearly implied purposes of which it was enacted," id. at 238,guarding the public trust is very much within the Board's authority.
As to Johnston's belated contention that his conviction did not relate to his
professional license, we conclude his contention is without sufficient merit to
warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We only note again
that Johnston earlier conceded his conviction adversely related to the profession,
and he cannot now alter that stance. See Newell v. Hudson, 376 N.J. Super. 29,
38 (App. Div. 2005) (stating parties are prohibited "from asserting a position in
a case that contradicts or is inconsistent with a position previously asserted by
the party in the case or a related legal proceeding"). Even if he was allowed to
do so, we have no doubt that his conduct directly and adversely related to his
profession.
Having considered Johnston's crime warranted discipline, we next
consider his argument that the revocation of his license and the five-year
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9
moratorium on reapplication was "disproportionate and unfair and should shock
the conscious of the [c]ourt." He contends it was improper for the Board to have
"assess[ed] all of the Birdsall licensees in the same light due to their involvement
in the reimbursement scheme" because the Board "ignore[d] the record of how
[he] came to be involved in the Birdsall scheme, the nature of his involvement,
and the crucial differences in how the criminal matters were resolved." 7
Johnston also claims the Board failed to follow the Act, which "intend[s] to
provide uniformity in the investigative and enforcement powers of all
professional boards," as demonstrated by the "wide margin" that exists between
the sanctions imposed against him as compared to other cases. We disagree.
Our review of an agency's sanction is also limited. "A reviewing court
should alter a sanction imposed by an administrative agency only 'when
necessary to bring the agency's action into conformity with its delegated
authority.'" In re Hermann, 192 N.J. 19, 28 (2007) (quoting In re Polk, 90 N.J.
550, 578 (1982)). "[T]he test [for] reviewing administrative sanctions is
'whether such punishment is "so disproportionate to the offense, in the light of
7
Johnston also implies his punishment should be evaluated in light of the fact
that he committed only a fourth-degree crime. He does not provide any case law
to support why the degree of the crime should be factored into the Board's
decision nor does the statute make any distinction between the degree of the
crime committed, it simply states "convicted of a crime." N.J.S.A. 45:1-21(f).
A-1048-20
10
all the circumstances, as to be shocking to one's sense of fairness."'" Polk, 90
N.J. at 578 (quoting Pell v. Bd. of Educ., 313 N.E.2d 321, 326 (N.Y. 1974)).
Here, Johnston was criminally convicted for participating in a scheme to
violate New Jersey's pay-to-play laws8 by accepting extra bonuses from his
company and in turn writing personal checks as campaign contributions to
various public officials' campaigns over a span of five years, in violation of
N.J.S.A. 19:44A-20.1. He testified at the hearing before the Board that he was
approached about six months after he started working as an officer at Birdsall to
partake in the scheme. At that time, he immediately questioned if the plan to
receive bonuses for the payment of political contributions was legal. He was
told by the individual who approached him that it was, and Johnston did not
question it further. He also testified he did not receive any personal benefit.
The Board considered the written and oral arguments of both parties as
well as Johnston's testimony when determining the penalty it would impose. The
Board made credibility determinations and found credible Johnston's testimony
regarding how he began to participate in the scheme, but found his testimony
that he did not benefit and was unaware of the benefit to the company not
8
See N.J.S.A. 19:44A-20.3 to -20.25.
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credible.9 Although the Board considered Johnston's otherwise unblemished,
distinguished career as an engineer, as well as his post-conviction voluntary
efforts to rehabilitate himself and provide services to the profession and his
community, it determined those positive attributes were outweighed by the fact
that after Johnston raised an initial concern about the legality of the
contributions, he continued to voluntarily participate in the scheme for five years
and stopped only due to law enforcement intervention. The Board found
Johnston's "criminal conviction, and his corrupt acts giving rise to it, to be
extremely serious and clearly not the conduct expected of a professional
engineer." It concluded "that [Johnston's] criminal conviction, and even more
fundamentally the actions upon which that conviction was predicated, are
antithetical to the standards we expect of all licensed engineers, and at their core
fundamentally adverse to the practice of engineering."
9
The Board found, prior to working at Birdsall, Johnston spent years building
up his own engineering firm, PMK, which had its own designated employee to
handle pay-to-play laws within the firm. That employee remained with Birdsall
after the merger with PMK. Having then-held an engineering license for
approximately thirty years, ten of which spent as a principal of his own
engineering firm, the Board believed he was more than aware of the pay-to-play
laws and the benefits Birdsall and, consequentially, he gained through his
criminal acts.
A-1048-20
12
It disregarded Johnston's comparisons to other disciplinary cases before
the Board to support his contention that his case was unlike the other Birdsall
matters and more like two other revocation cases not involving pay-to-play
violations.10 Instead, the Board focused on other licensed engineers
participating in the same scheme and noted each surrendered his license, which
was the equivalent to a permeant revocation.11 However, and despite the
Attorney General's request for a permanent revocation of Johnston's license, the
Board felt a revocation with only a five-year bar on reapplication struck a fair
balance between Johnston's conduct and the presented mitigating factors.
We conclude from our review of the record that Johnston has not carried
his burden to establish his sanction imposed by the Board was so
disproportionate or shocking to justify our intervention.
10
In his merits brief to this court, Johnston provides background on a few cases
brought before various state boards, including the Board of Chiropractic
Examiners, Board of Medical Examiners, and Board of Professional Engineers
and Land Surveyors. The purpose of these comparisons was to support his claim
that others, in his view, performed worse acts and yet obtained lighter sentences
against their respective licenses.
11
At oral argument before us, Johnston contended the most culpable of
participants in the Birdsall scheme did not yet receive any sanction from the
Board. The Deputy Attorney General confirmed as of that date no action had
yet been taken to address that individual's license. He also confirmed Johnston
could seek reconsideration of his revocation if that individual receives a lesser
sanction.
A-1048-20
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We find no merit to Johnston's unsupported argument that the Board
should not have considered the penalties imposed on the other Birdsall pay-to-
play scheme members when determining his penalty, but rather it should have
compared his punishment to penalties imposed under the Act, which he contends
demonstrate that his penalty was disproportionally harsh. This is a similar
argument made in In re Zahl, where the Supreme Court reversed our remanding
a matter to the Board of Medical Examiners after we determined the license
revocation for Zahl's dishonest behavior was too harsh where no patients were
actually harmed. 186 N.J. 341, 343 (2006). The Supreme Court reversed and
remanded to the Board to revoke the license, determining the agency acted
within its authority to revoke the license where dishonesty falls under N.J.S.A.
45:1-21. Id. at 354. In doing so, the Court emphasized its decision in Polk that
an appellate court should not overrule an agency on its sanction decision simply
because it would have come to a different result. See ibid. (quoting Polk, 90
N.J. at 578).
Here, the Board performed a thorough review of the evidence before it
and decided the matter based on its "expertise and superior knowledge of [its]
particular field." Allstars Auto, 234 N.J. at 158 (quoting Circus Liquors, 199
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N.J. at 10). Because the Board acted within its authority, we have no reason to
disturb its decision.
To the extent we have not specifically addressed any of Johnston's
remaining arguments, we conclude they are without sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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