In the Matter of Albert Gonzalez, Jr., Fire Fighter ( 2024 )

NOT FOR PUBLICATION WITHOUT THE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-2197-21
IN THE MATTER OF ALBERT
GONZALEZ, JR., FIRE FIGHTER
(M1844W), JERSEY CITY.
Submitted January 18, 2024 – Decided March 19, 2024
Before Judges Currier and Firko.
On appeal from the New Jersey Civil Service
Commission, Docket Nos. 2019-31, 2021-1884, and
2022-831.
Marc Andrew Calello, attorney for appellant.
Brittany Murray, Acting Corporation Counsel, attorney
for respondent City of Jersey City (James Brendan
Johnston, Supervisory Assistant Corporation Counsel,
of counsel and on the brief; Lindiwe N. Ashton,
Assistant Corporation Counsel, on the brief).
Matthew J. Platkin, Attorney General, attorney for
respondent New Jersey Civil Service Commission
(Nicholas V. Klimowicz, Deputy Attorney General, on
the statement in lieu of brief).
PER CURIAM
Appellant appeals from the February 7, 2022, Final Administrative Action
(Final Action) of the Civil Service Commission (CSC) denying his motion for
reconsideration and upholding his removal from the Jersey City firefighter
eligibility list. Appellant was removed from the eligibility list after the review
of his background report revealed he was terminated as a police officer from the
Jersey City Police Department (JCPD) in 2009 and from another job in 2017. In
addition, the report listed arrests in 2009 and 2010. He was convicted of a
disorderly persons offense in 2010 and his driving record showed a history of
motor vehicle violations and accidents.
Appellant has appealed from the removal three times. The CSC has
denied the appeal each time, concluding his "unsatisfactory background"
rendered him unsuitable for employment as a Jersey City firefighter. In the
second appeal, appellant asserted the matter should be transferred to the Office
of Administrative Law (AOL) for a hearing. The CSC declined the request and
denied reconsideration of its decision. We affirm.
Plaintiff graduated from the Jersey City Police Academy in December
2006 and began working as a probationary police officer. In February 2007,
appellant was arrested for an incident that occurred before he entered the Police
Academy (incident), charged in an indictment, and suspended indefinitely from
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JCPD pending the outcome of the charges. After the victim involved in the
incident recanted his accusation, the indictment was dismissed, and the charges
were expunged.
In investigating the matter, JCPD discovered numerous images of
appellant on social media displaying what it determined to be gang hand signs
and activity. Appellant was charged with administrative violations regarding
his conduct surrounding the incident leading to his criminal charges and for the
social media posts. After two days of hearings, defendant was found guilty of
administrative charges: neglect of duty for failing to notify the department of
his knowledge of the incident leading to the criminal charges; lack of
truthfulness for denying knowledge of the incident despite being present during
the event; conduct unbecoming an officer or neglect of duty; and conduct
unbecoming a public employee under N.J.A.C. 4A:2-2.3(a)(6). He was
terminated from his employment as a police officer in November 2009. He did
not appeal from the decision.
In 2010, Point Pleasant police officers were responding to a verbal dispute
at a residence when they found appellant urinating in the bushes outside of the
home. Appellant told the officers he was a Jersey City police officer. When
asked for identification, appellant produced a "police style wallet" without a
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badge or police identification card and told the officers he had worked the
previous day, and his badge was still on his shirt. The officers contacted JCPD
and learned that appellant had been fired from the department in 2009.
Appellant was charged with impersonating an officer. He later "plead[ed] guilty
to an amended charge of disorderly conduct and pa[id] a fine."
In October 2016, appellant began working at Amazon. He was terminated
from that position the following year. The reasons for the termination are not
disclosed in the record.
Thereafter, appellant pursued the process to apply for employment as a
Jersey City firefighter. He passed the firefighter examination and was certified
on the firefighter eligibility list. However, in January 2018, the JCPD issued a
Disqualification Proposal recommending plaintiff's disqualification from the
eligibility list due to an unsatisfactory background report and employment
history. Thereafter, the Jersey City Department of Public Safety issued a
memorandum stating appellant had been rejected from the Civil Service Eligible
Appointment for Firefighter Certification. Appellant appealed.
On November 26, 2018, the CSC issued a Final Action finding "appellant
ha[d] not presented any argument[s] or information to demonstrate that"
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defendant City of Jersey City erred in removing his name from the eligibility
list. The CSC stated:
Clearly, . . . appellant's termination in 2009 as a Jersey
City Police Officer for concealing information from his
superiors and subsequent arrest in 2010 for
impersonating a police officer adversely relates to the
position of [f]ire [f]ighter as these actions call into
question his integrity and trust to work with the general
public, the police and other municipal employees as
well as his ability to follow orders from his superiors as
a [f]ire [f]ighter, which is a position that is crucial to
saving lives.
The CSC concluded that Jersey City showed sufficient cause for removing
appellant's name from the eligibility list and denied the appeal.
Undeterred, appellant took the firefighter examination again, and was
ranked number 243 on the eligibility list. His name was again removed from
the list due to the unsatisfactory background report. On appeal, appellant argued
the arrest for impersonating a police officer was not "prior adverse behavior"
and also "d[id] not rise to the level of an offense" to "disqualify him from
becoming a [firefighter]." He also asserted the CSC erred in considering JCPD's
disqualification recommendation because "he maintained his innocence
throughout the . . . process," the "criminal charges against him were dismissed,"
and he did not inform his superiors about the events leading to his arrest because
he was exercising his Fifth Amendment right to remain silent based on his
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attorney's advice. Appellant requested the matter be transferred to the OAL for
a hearing.
On September 24, 2021, the CSC issued a Final Action denying appellant's
second appeal and determining the matter did not require a hearing. The CSC
found that, although the criminal charges were dismissed and expunged, the
administrative charges were sustained and resulted in his termination, and that
expunged records can be considered when determining grounds for removal.
Further, the CSC noted appellant did not appeal the 2009 termination decision.
The CSC also found that the arrest for impersonating a police officer was
an offense that warranted removal because it jeopardized appellant's ability to
work with police officers and the public. In addition, the CSC noted appellant
had not shown any evidence of rehabilitation.
Appellant filed a request for reconsideration, asserting the matter should
be transferred to the OAL because there was a factual dispute regarding the
reasons for his termination from JCPD.
On February 7, 2022, the CSC issued a Final Action denying appellant's
petition for reconsideration. The CSC found appellant did "not present[] new
evidence that would change the outcome" of its determination and he did not
demonstrate a clear material error. The CSC stated:
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Specifically, the only material facts in this case are that
[appellant] was removed as a Jersey City Police Officer
in November 2009 and he chose not to exercise his right
to appeal his discipline to the C[SC] within [twenty]
days, he was arrested for impersonating a [p]olice
[o]fficer in 2010, which led to him pleading guilty to an
amended charge of disorderly conduct and paying a
fine, and he was terminated from Amazon less than one
year prior to the subject examination closing date.
Therefore, [appellant] clearly has an unsatisfactory
background to be a [f]ire [f]ighter. Whatever "new"
evidence that [appellant] could present at a hearing
regarding his claims that his removal and arrest were
unjustified is immaterial as he had the opportunity to
make these arguments in 2009 and 2010 respectively,
but chose not to do so. Instead, he failed to appeal his
removal to the C[SC] within [twenty] days as required
and he accepted a guilty plea to a lesser offense instead
of pleading not guilty. Therefore, the C[SC] will not
relitigate these issues that are over a decade old.
The CSC further determined that, even if it did not consider appellant's
expunged arrest, the removal from his position as a Jersey City police officer
was "based on sustained administrative charges, which he did not appeal."
Therefore, his removal from the list was justified irrespective of his allegations
of new evidence.
"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.'" In re
Stallworth, 208 N.J. 182, 194 (2011) (alteration in original) (quoting Henry v.
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Rahway State Prison, 81 N.J. 571, 579-80 (1980)). We "owe[] substantial
deference to the agency's expertise and superior knowledge of a particular field."
In re Herrmann, 192 N.J. 19, 28 (2007). "However, a reviewing court is '"in no
way bound by [an] agency's interpretation of a statute or its determination of a
strictly legal issue."'" Allstars Auto Group, Inc. v. N.J. Motor Vehicle Comm'n,
234 N.J. 150, 158 (2018) (alteration in original) (quoting Dep't of Child. &
Families v. T.B., 207 N.J. 294, 302 (2011)).
On appeal, appellant contends the CSC's denial of his request for a hearing
prevented him from producing new evidence or additional information that
would have changed the CSC's determination on his petition for reconsideration.
We discern no error in the denial of a hearing or in the CSC's final action.
A party requesting reconsideration from an agency decision must establish
"(1) [t]he new evidence or additional information not presented at the original
proceeding, which would change the outcome and the reasons that such evidence
was not presented at the original proceeding; or (2) [t]hat a clear material error
has occurred." N.J.A.C. 4A:2-1.6(b).
Appellant did not present any new evidence to support his assertion that a
hearing would have changed the outcome of the CSC's determination. The
undisputed facts before Jersey City and the CSC were that appellant was found
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guilty of administrative charges during his probationary employment as a Jersey
City police officer and he was subsequently terminated. He was afforded a
hearing prior to the adjudication of those disciplinary charges. He did not appeal
from the termination decision. Thereafter, appellant pleaded guilty to disorderly
conduct after his arrest for impersonating a police officer. Those were the
uncontroverted facts in the background report.
The CSC may remove an individual from a civil service eligibility list for
numerous reasons under N.J.A.C. 4A:4-4.7(a), including: "(1) The causes for
disqualification listed in N.J.A.C. 4A:4-6.1 . . . . (4) The [individual] has a
criminal record that adversely relates to the employment sought. . . . (11) Other
valid reasons as determined by the Chairperson or designee." Under N.J.A.C.
4A:4-6.1(a), a candidate may be denied appointment when they: "(5) Ha[ve]
been removed from the public service for disciplinary reasons after an
opportunity for a hearing . . . . (7) Ha[ve] a prior employment history which
relates adversely to the title . . . . (9) Other sufficient reasons."
Under N.J.A.C. 4A:2-1.1(d), an appeal from the removal from an
eligibility list will be reviewed on the written record "[e]xcept where a hearing
is required by law, this chapter or N.J.A.C. 4A:8, or where the C[SC] finds that
a material and controlling dispute of fact exists that can only be resolved by a
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hearing." Appellant has not articulated any dispute of fact requiring a hearing.
As we have stated, "The determination whether such a situation [necessitating a
hearing] exists is one committed to the discretion of the [agency], and its
decision will be affirmed unless it goes beyond the range of sound judgment."
In re Wiggins, 242 N.J. Super. 342, 345 (App. Div. 1990).
In investigating a firefighter candidate's background, the CSC is permitted
to consider all arrests, even if expunged. See N.J.A.C. 4A:4-4.7(a)(4)(ii)
(stating "[t]he presentation of a pardon or an expungement shall prohibit
removal from a list, except for law enforcement, correction officer, correctional
police officer, juvenile detention officer, firefighter, or judiciary titles and other
titles as the Chairperson or designee may determine" (emphasis added)); see also
N.J.S.A. 11A:4-10 ("Eligibles for a . . . . firefighter . . . title may also be
questioned as to any arrest.").
In addition, the CSC may consider "the circumstances surrounding the
arrest." Tharpe v. City of Newark Police Dep't, 261 N.J. Super. 401, 406 (App.
Div. 1992). Therefore, as the CSC noted in its September 24, 2021, Final
Action, appellant's "removal from the [JCPD] for disciplinary reasons after an
opportunity for a hearing" is sufficient reason alone for removal from the
eligibility list under N.J.A.C. 4A:4-6.1(a)(5).
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Appellant's disciplinary adjudications and his disorderly persons
conviction all involved instances of dishonesty and deceit—traits not tolerated
in a position of public service and of a firefighter. In such a visible position, the
public must have the utmost confidence and trust in a firefighter and expects the
candidate to have an impeccable character. Quite simply, a firefighter candidate
must show respect for the law and the rules.
We discern no reason to disturb the CSC's decision denying
reconsideration. There is significant evidence in the record regarding appellant's
employment and legal history to support the decision that appellant is not
suitable to the position of a Jersey City firefighter. Appellant has not
demonstrated the CSC's Final Action was arbitrary, capricious, or unreasonable.
Affirmed.
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