Kyle Forcinito v. Borough of Clayton ( 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NOT FOR PUBLICATION WITHOUT THE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-0433-23
KYLE FORCINITO,
Plaintiff-Appellant,
v.
BOROUGH OF CLAYTON,
Defendant-Respondent.
_________________________
Submitted May 29, 2024 – Decided July 25, 2024
Before Judges Sumners and Rose.
Op appeal from the Superior Court of New Jersey, Law
Division, Gloucester County, Docket No. L-0512-23.
Hegge & Confusione, LLC, attorneys for appellant
(Michael Confusione, of counsel and on the briefs).
Brown & Connery, LLP, attorneys for respondent
(William F. Cook, and Arlette Leyba, on the brief).
PER CURIAM
Plaintiff Kyle Forcinito began his employment as a police officer with the
Borough of Clayton Police Department in 2015 and served admirably for almost
eight years with no prior disciplinary charges and received commendations for
his service. However, after testing positive for steroids while competing in a
June 2022 United States Bodybuilding Federation (USBF) competition,
followed by another positive test for steroids conducted by the police
department's internal affairs unit four months later, Forcinito was placed on
administrative leave. He was later served with a Preliminary Notice of
Disciplinary Action recommending termination, based on conduct unbecoming
an officer by testing positive for banned substances; violating the Attorney
General's policy governing Drug Screening for Police Officers; and violating
departmental rules regarding high ethical standards by cheating in the
bodybuilding competition, failure to notify his supervisor he used medication
that would impair his senses, and disobeying drug laws.
A one-day departmental trial was conducted by an appointed hearing
officer. The Borough presented the testimony of Captain Lauren Franklin and
Chief Andrew Davis regarding the police department's investigation and
Forcinito's violation of department and Attorney General drug policy.
According to the Borough, it had no choice but to terminate Forcinito because
the Attorney General's drug policy "make[s] no exception for intent" and affords
"no discretion" as to his punishment. Forcinito testified that his ingestion of
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anabolic contaminants to compete in bodybuilding competitions was
unintentional. He had never "purchased any illegal steroids" because he feared
losing his father's support and his police officer position. If disciplined, he
requested he not be terminated.
The hearing officer issued a written decision sustaining the Borough's
charges and terminating Forcinito. The hearing officer determined Forcinito's
defense that he did not intentionally or knowingly ingest the banned substances
was not credible given his prior notice and awareness of the drug testing policies
governing his position. Adopting the hearing officer's conclusions, the Borough
thereafter served Forcinito a Final Notice of Disciplinary Action, terminating
his employment.
Forcinito subsequently filed a complaint in lieu of prerogative writs
requesting a trial de novo "dismiss[ing] the charges against him, or, in the
alternative, modifying the excessive and disproportionate penalty imposed upon
him." After hearing the parties' arguments, the judge reserved decision. The
judge subsequently issued an order and written decision dismissing the action
and denying Forcinito any relief.
Before us, Forcinito argues the hearing officer's findings are not
controlling and the judge failed to conduct independent findings of fact. He
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claims the judge erroneously relied on an unadmitted hearsay email by the non-
testifying Andrew L. Falzon, M.D, New Jersey Department of Health Chief State
Medical Examiner, to Captain Franklin stating that an anabolic substance
drostanonlone found in Forcinito's system must be taken via intramuscular
injection and not through a supplement. The judge agreed with the hearing
officer that the email undermined Forcinito's defense that he unknowingly
ingested tainted supplements. Forcinito contends because neither the hearing
officer nor the judge relied on "substantial credible evidence," discipline less
than termination is "warranted." Lastly, Forcinito contends the offense does not
warrant termination and progressive discipline should be considered to lessen
his penalty considering his "unblemished" employment. We find insufficient
merit in these arguments to warrant extensive discussion, R. 2:11-3(e)(1)(E),
and affirm, adding only the following brief comments.
Pursuant to N.J.S.A. 40A:14-150, actions like this are heard de novo to
ensure that a neutral, unbiased forum will review the disciplinary decision. In
re Disciplinary Procs. of Phillips, 117 N.J. 567, 580 (1990). While a trial judge
conducting a de novo review must give deference to the credibility
determinations drawn by the original tribunal, those initial findings are not
controlling. State v. Johnson, 42 N.J. 146, 157 (1964); Donofrio v. Haag Bros.,
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Inc., 10 N.J. Super. 258, 262 (App. Div. 1950). Instead, "careful sifting and
weighing of the evidence and independent findings of fact . . . are the hallmark
of a de novo trial." King v. Ryan, 262 N.J. Super. 401, 412 (App. Div. 1993).
We are amply satisfied that the judge faithfully adhered to these principles.
Our role is more limited than the trial judge's; we do not make new factual
findings but simply determine whether there was evidence to support the trial
judge's findings. Johnson, 42 N.J. at 161. Unless the decision under review is
"arbitrary, capricious or unreasonable" or "[un]supported by substantial credible
evidence in the record as a whole," a judge's de novo findings should not be
disturbed. See Henry v. Rahway State Prison, 81 N.J. 571, 580 (1980);
Campbell v. Dep't of Civ. Serv., 39 N.J. 556, 562 (1963). Our application of
this standard advocates against appellate intervention in the trial court's
decision.
The trial judge's well-reasoned decision reveals careful consideration and
evaluation of the hearing record. Even though Forcinito correctly points out the
judge considered Dr. Falzon's hearsay email, the judge's findings were not solely
based on this statement, and there is "a residuum of legally competent evidence"
supporting the judge's finding that Forcinito violated the department's and
Attorney General's drug policy. Ruroede v. Borough of Hasbrouck Heights, 214
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N.J. 338, 359-60 (2013) (citation omitted). There is no dispute that Forcinito
twice tested positive for banned substances that were not medically prescribed
or recommended, and for which he presented no expert testimony supporting his
claim that contaminated supplements caused his positive tests. In addition, the
prescription for intramuscular injections Forcinito provided to the department
was dated after he took the department's drug test.
As for Forcinito's discipline, the Attorney General's drug policy requires
a violator's termination and does not authorize a penalty short of termination.
The fact that Forcinito had an unblemished disciplinary record and served
admirably is of no significance under the violated policies.
Affirmed.
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