IN THE MATTER OF FRANK HARKCOM, BAYSIDE STATE PRISON, DEPARTMENT OF CORRECTIONS (CIVIL SERVICE COMMISSION) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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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-3038-16T3
IN THE MATTER OF
FRANK HARKCOM,
BAYSIDE STATE PRISON,
DEPARTMENT OF CORRECTIONS.
____________________________
Argued July 10, 2018 – Decided August 31, 2018
Before Judges O'Connor and Moynihan.
On appeal from the New Jersey Civil Service
Commission, Docket No. 2016-2769.
William G. Blaney argued the cause for
appellant Frank Harkcom (Blaney & Karavan, PC,
attorneys; John R. Dominy, of counsel and on
the brief).
Adam K. Phelps, Deputy Attorney General,
argued the cause for respondent Bayside State
Prison (Gurbir S. Grewal, Attorney General,
attorney; Jason W. Rockwell, Assistant
Attorney General, of counsel; Adam K. Phelps,
on the brief).
Alan C. Stephens, Deputy Attorney General,
argued the cause for respondent Civil Service
Commission (Gurbir S. Grewal, Attorney
General, attorney; Alan C. Stephens, on the
statement in lieu of brief).
PER CURIAM
Frank Harkcom appeals from the Civil Service Commission's
final administrative action upholding the administrative law
judge's (ALJ's) initial decision removing Harkcom from employment
as a senior corrections officer with the New Jersey Department of
Corrections (DOC). He argues: the ALJ, by denying his motion for
a directed verdict, shifted the burden of proof to him, effectively
forcing him to testify; and that the "Commission's wholesale
adoption of the [ALJ's initial decision] improperly relied" on
prior disciplinary infractions which the ALJ excluded for purposes
of determining a penalty. We determine the motion at the
conclusion of the DOC's case was mistakenly denied and reverse.
In a disciplinary action that preceded the matter here under
review, Harkcom was removed from service following his arrest for
both suspicion of and driving under the influence, and for reckless
driving. After he was found guilty of reckless driving only,
resulting in a driver's license suspension, his removal was reduced
to a ten-day suspension. He was subsequently required to reapply
for employment as an officer with the DOC.1
Based on its review, the DOC preferred charges against Harkcom
alleging he falsified his reapplication by failing to report: a
1
Harkcom does not challenge the DOC's reapplication requirement.
2 A-3038-16T3
1990 still-active final restraining order (FRO) issued against
him;2 harassment charges lodged in 2012 and 2013; and that he lost
his driver's license "due to reckless driving."3 Harkcom was
charged with: conduct unbecoming an employee, N.J.A.C. 4A:2-
2.3(a)(6); other sufficient causes, N.J.A.C. 4A:2-2.3(a)(12);
falsification: intentional misstatement of material fact in
connection with work, employment application, attendance, or in
any record, report investigation, 84-17 (as amended) (C-8);
conduct unbecoming an employee, (C-11); prohibited by law from
possessing or using a firearm (law enforcement personnel), (D-23);
and violation of rule, regulation, policy, procedure, order or
administrative decision, (E-1).
In its case-in-chief, a DOC Custody Recruitment Unit sergeant
who regularly conducted investigations of employees seeking
reinstatement, including Harkcom, identified database printouts
from the New Jersey Automated Complaint System (ACS) and the Family
Automated Case Tracking System (FACTS) that had been supplied to
2
Although mentioned extensively by the Commission and DOC in their
merits briefs, we note the failure to disclose the temporary
restraining order (TRO) that preceded the FRO was not included in
either the preliminary or final notices of disciplinary action.
3
The copy of the reapplication provided to us reveals Harkcom
disclosed that his license was suspended for six months and that
the suspension was current. The ALJ did not make a finding
regarding this allegation.
3 A-3038-16T3
him by other officers. These documents – admitted into evidence
over Harkcom's hearsay objection because, according to the ALJ,
they were relied on by the sergeant in making his recommendation
that Harkcom's application not move forward – were alleged by the
DOC to show proof that Harkcom had knowledge of the 1990 FRO and
the 2012 and 2013 harassment charges. Harkcom's knowledge of
these three incidents – undisclosed by him when he completed his
reapplication – was a required element of the DOC's charges
inasmuch as Harkcom averred he never had notice of same. During
the DOC's case-in-chief, Harkcom moved the FRO into evidence. He
highlighted that the blank portion of the FRO addressing service
of the order was not completed and contended the document did not
show that he was served.
In moving for a directed verdict at the conclusion of the
DOC's case, Harkcom argued the DOC had not produced any competent
evidence – other than the FRO which did not contain information
about service on him – and that the residuum rule precluded a
finding for the DOC whose hearsay evidence failed to prove that
Harkcom had requisite knowledge of the charges and the FRO
undisclosed on his reapplication.
The ALJ concluded the hearsay nature of the database records
went "to the overall weight" he would give them at the conclusion
of the case. He continued:
4 A-3038-16T3
I don't view the [r]esiduum [r]ule to have
hearsay documents carry the day for a motion
to dismiss.
Furthermore as we all know in this
tribunal our job is to gather the evidence,
to hear testimony to -- as you pointed out,
to admit competent documents to make a
determination on those documents and to get
into a posture where if necessary, you know,
Civil Service Commission, I know right now we
don't necessarily have a Civil Service
Commission, but the way the procedure works
is the Civil Service Commission and then if
necessary an Appellate Division can review the
record and I am further going to deny the
motion because if -- in my opinion if we didn’t
and the case gets appealed and we get remanded
for further testimony and I would like to
avoid that step if, you know, if the Appellate
Division overrules me based on the denial of
the motion I can live with that. I'd rather
not have to be here six months from now
rehearing a part of this so for that -- for
those two reasons I'm going to deny the
motion.
Echoing an argument made during the motion that it would be
"patently unfair" to require Harkcom to take the stand to refute
charges that were sustained only by hearsay, effectively allowing
the DOC to present competent evidence from Harkcom himself,
Harkcom's counsel called his client to testify only because his
motion was denied. That testimony formed the basis for a large
segment of the ALJ's findings.
In considering all the evidence after both parties rested,
the ALJ found the sergeant "relied on [the ACS and FACTS] printouts
5 A-3038-16T3
to determine that [Harkcom] had knowledge of the [2012 and 2013]
harassment charges, and the FRO, and therefore falsified his
reapplication by omitting the same." He noted the sergeant
had no personal knowledge of whether [Harkcom]
was aware of the harassment complaints but did
indicate that they appeared to be signed by a
citizen, not law enforcement. Upon review of
the 2012 complaint, [the sergeant] determined
the alleged perpetrator was a Mr. W, who
resided at . . . a location [Harkcom] did not
reside at during the time frame. . . .
[The sergeant] reviewed a [c]ertified
[c]opy of the [r]estraining [o]rder provided
by [Harkcom's] counsel and maintained the
position that even though it lacked any
indication that it was served on [Harkcom]
that he believed [Harkcom] was served. He had
no reason to doubt the accuracy of the
[FACTS].
Although the ALJ concluded Harkcom failed to include in his
reapplication two other charges originally set forth in his 1997
application,4 the ALJ's findings that Harkcom knew of the
harassment charges and FRO were based on Harkcom's testimony – not
on the evidence adduced during the DOC's case:
I do not [find Harkcom] to be a credible
witness and his testimony regarding his
knowledge of the 1990 TRO and FRO, as well as
the 2012 and 2013 [harassment] complaints
filed against him, is not believable.
4
Harkcom listed a 1981 criminal mischief conviction and 1989
disorderly conduct offense in his 1997 initial DOC application but
did not include them in his reapplication. These charges do not
appear in either the preliminary or final notice of disciplinary
action.
6 A-3038-16T3
[Harkcom] testified that he did not know about
the 1990 TRO and FRO, or the 2012 and 2013
harassment complaints when he reapplied for
employment in 2015. However, [Harkcom] was
aware of the 1990 restraining orders even
though he denies he was served with the TRO
or FRO. Even if taken as true that he was not
served the documents, [Harkcom] admitted his
ex[-]wife told him about the TRO, and that he
knew the Salem Sheriff had delivered something
to his parents' house. That [Harkcom] was not
aware of or simply forgot about an incident
serious enough to [rise] to the level of a TRO
and FRO being entered against him is not
credible.
Similarly, [Harkcom] testified that he
did not purposely fail to disclose the 2012
and 2013 harassment complaints because he was
never aware of them. By his own admission,
however, [Harkcom] went to [c]ourt, and
mediation, to have the harassment complaints
dismissed. As a result, I FIND as FACT that
[Harkcom] was aware of the 1990 TRO and the
FRO and also the 2012 and 2013 [harassment]
charges filed against him and [failed] to
disclose them on his 2015 reapplication.
Concluding the DOC proved the conduct unbecoming,
falsification and other sufficient cause charges, the ALJ
commented that Harkcom's assertions – the DOC failed to prove the
charges against him by credible, competent evidence; the omissions
on his reapplication were inadvertent, done without knowledge of
the existence of the omitted incidents; the DOC failed to
authenticate the database documents; and those documents failed
to indicate Harkcom received notice of the omitted incidents –
"would have some merit" if Harkcom had testified that the
7 A-3038-16T3
harassment and domestic violence incidents had not occurred and
the DOC was unable to corroborate the incidents. The ALJ found:
The documents presented, however, were
obtained during the course of [the sergeant's]
background investigation. There has been no
evidence that [the sergeant] or anyone else
manufactured these documents or that [the
sergeant] harbored any ill will toward
[Harkcom]. Furthermore, [Harkcom] testified
as to the events surrounding the documents in
question which gives this tribunal the ability
to more fully rely upon these documents.
We recognize our "limited role" in reviewing the Commission's
final decision. Henry v. Rahway State Prison, 81 N.J. 571, 579
(1980). "An appellate court affords 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)). We will "not
disturb an administrative agency's determinations or findings
unless there is a clear showing 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 Application of Virtua-West Jersey Hosp. Voorhees
for a Certificate of Need, 194 N.J. 413, 422 (2008). See also
Circus Liquors, Inc. v. Governing Body of Middletown Twp., 199
N.J. 1, 9-10 (2009). "We may not vacate an agency determination
8 A-3038-16T3
because of doubts as to its wisdom or because the record may
support more than one result[,]" In re N.J. Pinelands Comm'n
Resolution PC4-00-89, 356 N.J. Super. 363, 372 (App. Div. 2003),
but are "obliged to give due deference to the view of those charged
with the responsibility of implementing legislative programs,"
ibid."The burden of demonstrating that the agency's action was
arbitrary, capricious or unreasonable rests upon the [party]
challenging the administrative action." In re Arenas, 385 N.J.
Super. 440, 443-44 (App. Div. 2006); see also McGowan v. N.J.
State Parole Bd., 347 N.J. Super. 544, 563 (App. Div. 2002); Barone
v. Dep't of Human Servs., 210 N.J. Super. 276, 285 (App. Div.
1986), aff'd, 107 N.J. 355 (1987).
We first note that Harkcom's motion for a directed verdict,
made at the conclusion of the DOC's case, was actually a motion
for an involuntary dismissal – the administrative equivalent of a
motion under Rule 4:37-2(b). See Altomare v. Cesaro, 70 N.J.
Super. 54, 56 (App. Div. 1961) (recognizing a motion for
involuntary dismissal occurs "[a]t the close of plaintiff's
proofs" while a directed verdict takes place "at the close of the
entire case"); see also Brill v. Guardian Life Ins. Co. of Am.,
142 N.J. 520, 535-36 (1995) (discussing the difference between
9 A-3038-16T3
involuntary dismissal, directed verdict, judgment notwithstanding
the verdict, and summary judgment).
Although the DOC was not bound by the rules of evidence in
the administrative proceeding, N.J.S.A. 52:14B-10(a)(1), and
hearsay – subject to the ALJ's discretion – was admissible,
N.J.A.C. 1:1-15.5(a), "some legally competent evidence must [have]
exist[ed] to support each ultimate finding of fact to an extent
sufficient to provide assurances of reliability and to avoid the
fact or appearance of arbitrariness," N.J.A.C. 1:1-15.5(b).
"Hearsay may be employed to corroborate competent proof, or
competent proof may be supported or given added probative force
by hearsay testimony." Weston v. State, 60 N.J. 36, 51 (1972).
"But in the final analysis for a court to sustain an administrative
decision, which affects the substantial rights of a party, there
must be a residuum of legal and competent evidence in the record
to support it." Ibid.The DOC does not contend that the database documents were
non-hearsay or exceptions to the hearsay rule. Indeed, no witness
testified to qualify the database documents as admissible non-
hearsay or hearsay exceptions, or to authenticate those documents.
As such, the DOC failed to present competent evidence in its case-
in-chief to prove the charges based on the two harassment
complaints or the FRO. The admitted FRO, arguably competent
10 A-3038-16T3
evidence, contained no information to prove Harkcom's knowledge
of same. The service section of the FRO was not completed; as
such, no knowledge-related deduction could be drawn from that
document. Harkcom's knowledge of the harassment complaints and
FRO was proved by hearsay alone. Absent competent evidence of
that required element of the DOC's charges, Harkcom's motion should
have been granted. See Pitts v. Newark Bd. of Educ., 337 N.J.
Super. 331, 340 (App. Div. 2001) (considering a motion under Rule
4:37-2(b), and concluding dismissal was appropriate when evidence
of an essential element of a plaintiff's case could not rationally
be found by the fact-finder). The ALJ's denial of the motion was
not supported by the evidence. We view the ruling as "clearly a
mistaken one and so plainly unwarranted that the interests of
justice demand intervention and correction." Clowes v. Terminix
Int'l, Inc., 109 N.J. 575, 588 (1988) (quoting State v. Johnson,
42 N.J. 146, 162 (1964)).
While this feeling of "wrongness" is difficult
to define, because it involves the reaction
of [a] trained judge[] in the light of [the
judge's] judicial and human experience, it can
well be said that that which must exist in the
reviewing mind is a definite conviction that
the judge went so wide of the mark, a mistake
must have been made. This sense of
"wrongness" can arise in numerous ways -- from
manifest lack of inherently credible evidence
to support the finding, obvious overlooking
or underevaluation of crucial evidence, a
clearly unjust result, and many others.
11 A-3038-16T3
[Id. at 588-89 (quoting Johnson, 42 N.J. at
162).]
We recognize evidence introduced by the DOC in its case-in-
chief included proof that Harkcom failed to disclose his criminal
mischief charge and conviction from 1981 and his 1989 disorderly
conduct – divulged in his initial DOC application – on his
reapplication.5 The ALJ ultimately found Harkcom's failure to
disclose those incidents supported the DOC's charges, but did not
mention them in deciding the motion. Although those charges –
proved by competent evidence – could have buttressed both a denial
of defendant's motion and an ultimate finding of falsification and
conduct unbecoming, the DOC did not include those incidents in the
preliminary or final notices of disciplinary action; it was
improper to consider them for any purpose.
While we disagree with Harkcom's argument that the denial of
his motion "improperly shifted the burden of proof" to him and
required his testimony,6 we determine the judge should have granted
5
Harkcom's 1997 application was admitted into evidence in the
DOC's case-in-chief over Harkcom's counsel's objection who argued
the criminal mischief and disorderly conduct charges from the
1980s "can't be [relevant] because he's not charged with [them]."
The ALJ admitted the document stating, "I'm certainly going to
hear whatever arguments you have with regard to the weight and the
relevancy of it when I render a decision."
6
In our view, after the ALJ denied his motion, instead of
testifying, Harkcom could have preserved his involuntary dismissal
argument for appeal and rested.
12 A-3038-16T3
the motion based on the DOC's evidence – without considering
Harkcom's testimony. See Verdicchio v. Ricca, 179 N.J. 1, 30-31
n.4 (2004) (commenting that the "better practice" is for a trial
court to decide a Rule 4:37-2(b) motion at the conclusion of
plaintiff's proofs, in that a "reservation requires defendant to
put forth a case," and that the ultimate ruling on the motion
"must disregard evidence adduced on the defense case"). The case
should not have proceeded past Harkcom's motion; as such we reverse
the decisions by the ALJ and the Commission removing him from
DOC's employ.
Because of our reversal, we need not address Harkcom's
argument that the ALJ improperly used his prior disciplinary
infractions, which had been excluded for purposes of determining
a penalty, and that the Commission adopted wholesale the ALJ's
sanction.
Reversed.
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