IN THE MATTER OF MATTHEW BERMUDEZ, ETC. (NEW JERSEY CIVIL SERVICE COMMISSION) ( 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NOT FOR PUBLICATION WITHOUT THE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-0373-19T1
IN THE MATTER OF MATTHEW
BERMUDEZ, POLICE OFFICER
(S9999U), LINDEN.
_____________________________
Submitted January 5, 2021 – Decided January 22, 2021
Before Judges Yannotti and Mawla.
On appeal from the New Jersey Civil Service
Commission, Docket No. 2019-1649.
Harkavy Goldman Goldman & Gerstein, attorneys for
appellant Matthew Bermudez (Brian M. Gerstein, on
the brief).
Apruzzese McDermott Mastro & Murphy, attorneys for
respondent City of Linden (Robert J. Merryman, on the
brief).
Gurbir S. Grewal, Attorney General, attorney for
respondent Civil Service Commission (Jonathan S.
Sussman, Deputy Attorney General, on the statement in
lieu of brief).
PER CURIAM
Matthew Bermudez appeals from a final decision of the Civil Service
Commission (Commission) dated August 16, 2019, which upheld his removal
from the eligibility list for the position of police officer in the City of Linden
(the City). We affirm.
The City's police department employed Bermudez as a public safety
telecommunicator since 2012. In 2015, he completed the written portion of the
civil service exam, scored a 92.7%, and ranked twenty-seventh on the eligibility
list for the position of police officer.
In his pre-employment background investigation, Bermudez indicated he
had been terminated from employment with a bank in 2010 for leaving the
grounds without permission and terminated from a fast food job in 2007 due to
a "no-show." The City disciplined Bermudez during his employment in 2013,
2014, and 2017. He also admitted he "was arrested [on] . . . bench warrants for
moving violations in Union, Watchung, Mountainside, [and] Piscataway."
Bermudez's driving record revealed the following citations: careless
driving in 2003; speeding in 2004, 2006 (two), and 2007; improper passing in
2005; improper display/fictitious plates in 2005 and 2006; failure to appear in
2006 (two); and unlicensed driving in 2006 (twice). His driving privileges were
suspended in 2006, 2008 (three times), and 2011.
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In July 2018, the City notified Bermudez it was no longer considering hi s
candidacy because of "his unsatisfactory work history as a Linden Public Safety
Telecommunicator." In November 2018, Bermudez received a certification
disposition notice stating: "Your name had been removed from [the] list [of
candidates for police officer] due to your unsatisfactory driving record which
relates adversely to the duties of this position."
Bermudez appealed the City's determination. He supplied the
Commission with a recent driver's abstract 1 and argued the motor vehicle
violations occurred when he was a young driver, he had no summonses since
2009, and had no points on his license since 2014. He argued his driving record
did not evince "any disregard for the motor vehicle laws, behavior that would
be incompatible with the duties of a law enforcement officer, and/or anything
that would be inconsistent with the performance of the duties of a law
enforcement officer."
On August 16, 2019, the Commission issued a final determination
upholding Bermudez's removal from the eligibility list. The Commission made
the following findings:
1
Bermudez obtained the updated abstract by utilizing his position within the
police department in violation of department rules and regulations, which in turn
prompted an internal affairs investigation.
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N.J.A.C. 4A:4-4.7(a)[(l)], in conjunction with N.J.A.C.
4A:4-6.l(a)[(7)], allows the . . . Commission[] to
remove an eligible's name from an eligible list for
having a prior employment history which relates
adversely to the title.
N.J.A.C. 4A:4-4.7(a)[(l)], in conjunction with N.J.A.C.
4A:4-6.l(a)[(9)], allows the Commission to remove an
eligible's name from an eligible list for other sufficient
reasons. Removal for other sufficient reasons includes,
but is not limited to, a consideration that based on a
candidate's background and recognizing the nature of
the position at issue, a person should not be eligible for
appointment. The Commission has the authority to
remove candidates from lists for law enforcement titles
based on their driving records since certain motor
vehicle violations reflect a disregard for the law and are
incompatible with the duties of a law enforcement
officer.
[(Citations omitted).]
Citing Bermudez's driver's license suspensions, employment terminations,
disciplinary actions while employed for the City, and the misuse of his position
to run an updated driver's abstract, the Commission concluded Bermudez's
background is not suitable to be a [p]olice [o]fficer. In
this regard, it is recognized that a [p]olice [o]fficer is a
law enforcement employee who must enforce and
promote adherence . . . to the law. Police [o]fficers hold
highly visible and sensitive positions within the
community and . . . the standard for an applicant
includes good character and an image of the utmost
confidence and trust. It must be recognized that a
municipal [p]olice [o]ffice[r] is a special kind of
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employee. His primary duty is to enforce and uphold
the law. He carries a service revolver on his person and
is constantly called upon to exercise tact, restraint[,]
and good judgment in his relationship with the public.
He represents law and order to the citizenry and must
present an image of personal integrity and
dependability in order to have the respect of the public.
See Moorestown v. Armstrong, 89 N.J. Super. 560, 566
(App. Div. 1965) . . . . See also In re Phillips, 117 NJ.
567 (1990).
The Commission held Bermudez did not meet his burden of showing the City's
decision to remove him from the list of eligible candidates was an error.
On appeal, Bermudez argues the Commission's decision is arbitrary,
capricious, and unreasonable. He asserts when the City sought his removal from
the eligibility list, it only cited his unsatisfactory driving record. He repeats the
argument that his driving infractions occurred when was young and claims he
matured since then. He reasserts his driving privileges were last suspended ten
years before the Commission's decision, and there is no evidence he has
disregarded the State's motor vehicle laws since then.
The scope of appellate review of an administrative agency's final
determination is limited. In re Stallworth, 208 N.J. 182, 194 (2011). "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.'" Ibid. (alteration in
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original) (citing Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980)).
Specifically, we must ask
(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
erred in reaching a conclusion that could not reasonably
have been made on a showing of the relevant factors.
[In re Carter, 191 N.J. 474, 482-83 (2007) (citing
Mazza v. Bd. of Trs., 143 N.J. 22, 25 (1995)).]
This highly deferential standard reflects the agency's expertise in administering
its legislative authority. Stallworth, 208 N.J. at 194-95.
N.J.A.C. 4A:4-6.1 states: "(a) A person may be denied examination
eligibility or appointment when he or she: . . . 7. Has a prior employment history
which relates adversely to the title; [or] . . . 9. Other sufficient reasons."
Therefore, pursuant to N.J.A.C. 4A:4-6.1(a)(9), the City's citation of Bermudez's
driving record alone was adequate grounds to remove him from the eligibility
list. As the record further developed on appeal before the Commission to
include Bermudez's employment and disciplinary history as well as the incident
involving the updated driver's abstract, it only bolstered the City's decision to
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remove Bermudez from the eligibility list pursuant to N.J.A.C. 4A:4-6.1(a)(7)
and (9).
For these reasons, we reject Bermudez's arguments and substantially
affirm for the reasons expressed by the Commission. R. 2:11-3(e)(1)(D). The
Commission's decision was neither arbitrary, capricious nor unreasonable, and
was instead supported by sufficient credible evidence.
Affirmed.
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