NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-3501-23
DALE W. EGGERT,
Petitioner-Appellant,
v.
NEW JERSEY DEPARTMENT OF COMMUNITY AFFAIRS, DIVISION OF FIRE SAFETY,
Respondent-Respondent. ___________________________
Argued January 21, 2026 – Decided July 31, 2026
Before Judges Gooden Brown and DeAlmeida.
On appeal from the New Jersey Department of Community Affairs, Docket No. 174710.
Ellen M. McDowell argued the cause for appellant (McDowell Law, PC, attorneys; Ellen M. McDowell and Amanda E. Hopkins, of counsel and on the briefs).
Andrew Hedin, Deputy Attorney General, argued the cause for respondent (Jennifer Davenport, Acting Attorney General, attorney; Donna Arons, Assistant Attorney General, of counsel; Andrew Hedin, on the brief). PER CURIAM
Petitioner Dale W. Eggert, former chief of the Tuckerton Volunteer Fire
Company No. 1 (TVFC), appeals from the May 30, 2024 final agency decision
of the Commissioner of the Department of Community Affairs (DCA) adopting
the initial decision of the Administrative Law Judge (ALJ), upholding
revocation of Eggert's seven firefighting certifications. The revocation was
grounded in findings that Eggert failed to ensure compliance with State staffing,
training, and inspection requirements; failed to timely remediate deficiencies
identified by the DCA's Division of Fire Safety (DFS) during its investigation;
and engaged in misconduct by using an unauthorized radio and call sign to report
a non-functioning traffic light after the TVFC had been suspended. We affirm.
I.
Eggert was the Fire Chief of the TVFC from 2017 to August 15, 2022. As
Fire Chief, Eggert was responsible for directing the TVFC's response to calls
involving fires or other emergencies, like motor vehicle crashes; ensuring
compliance with mandatory training requirements for himself and other TVFC
firefighters; and administering the operational aspects of the TVFC.
In March 2022, DFS began investigating the TVFC based on an
anonymous complaint that "it took the [TVFC] more than half an hour to
A-3501-23 2 respond" to a carbon monoxide call and only one firefighter arrived on scene.
According to the complainant, the lone firefighter did not have the proper
personal protective equipment (PPE) or the correct meter and did not know how
to operate the meter.
After receiving the complaint, Donald Nelsen, a DFS Senior Planner for
Emergency Management and Fire, met with Eggert and Jenny Gleghorn, the
Borough Administrator, on March 7, 2022, to initiate the investigation. At the
meeting, Nelsen requested documents such as the standard operating procedures,
insurance service organization ratings, training records, response reports, a copy
of the respiratory protection program (RPP),1 and an active roster list.2
On March 21, 2022, Eggert provided the roster list, showing the TVFC
had twelve active firefighters, violating the National Fire Protection Association
1 As noted by the ALJ, "[t]he respiratory [protection] program is required by the Occupational Safety and Health Administration (OSHA)." See 29 C.F.R. 1910.134. The State has a similar OSHA program—Public Employees Occupational Safety and Health (PEOSH), N.J.S.A. 34:6A-25 to -50. According to Nelsen, while some fire departments utilize the OSHA standards, the majority of public fire departments "u[tilize] the PEOSH Administrative Code of Standards." 2 At the meeting, Gleghorn provided Nelsen with the Tuckerton Borough Ordinance recognizing the Tuckerton Municipal Fire Department and delineating some of the qualifications of the fire company. See Tuckerton, N.J., Code § 29. A-3501-23 3 (NFPA) standard for the required number of firefighters available to respond to
Borough calls. Because Tuckerton is in the "urban demand zone" based on the
NFPA standard, according to Nelsen, at least fifteen firefighters are required to
be on scene at a building or structure fire "within nine minutes ninety percent of
the time." In addition, the roster list contradicted DFS's internal records which
indicated the TVFC had a roster of approximately eighty firefighters. Eggert
subsequently provided DFS with a written submission explaining the former
firefighters on the list had "resigned" or were "long gone."
Upon further investigation, DFS discovered other violations. The 2021
response reports provided by Eggert in June 2022 showed that out of the twelve
active firefighters, only four met the New Jersey State Fireman's Association
(SFA) standard, which required a firefighter to respond to at least twenty-five
percent of the calls, and only two (Eggert and his father) met the Borough
ordinance standard, which required a firefighter to respond to at least sixty
percent of the calls.3 The response reports for the first several months of 2022
3 The Borough ordinance required each firefighter "to perform at least [sixty] percent of duty" comprised "of actual attendance and duty at fires and drills." Tuckerton, N.J., Code § 29-2. Although the DFS did not specifically request records pertaining to firefighters' attendance at fire drills, they were not provided by Eggert. A-3501-23 4 showed five firefighters met the SFA standard and the same two (Eggert and his
father) met the Borough standard.
Additionally, DFS reported eleven of the twelve active TVFC firefighters
had certification deficiencies:
Six firefighters lacked documentation of the Firefighter 1 and Hazardous Materials: Awareness and Operations certifications. Six firefighters lacked documentation of Hazardous Materials: Awareness and Operations certifications, including Eggert and his father . . . . One firefighter lacked documentation of his Incident Safety Officer training. Three firefighters lacked documentation of their Incident Management System Level 1 certifications.
DFS notified Eggert of the deficiencies on April 22, 2022, and required
plaintiff to "submit proof[s] of the deficient certifications by June 1, 2022." On
June 1, 2022, Eggert began submitting the documentation to correct the
certification deficiencies. However, the submitted documents were incomplete
as some lacked the firefighters' signatures, driver's licenses, birth certificates,
and other supporting documentation. DFS notified Eggert of the deficiencies in
a June 6, 2022 email and advised Eggert how to cure the deficiencies.
Because the TVFC only had twelve active firefighters instead of the
required fifteen, DFS advised Eggert to enter into memoranda of agreements
(MOAs) with fire companies of contiguous municipalities. Eggert was told the
A-3501-23 5 MOAs had to specify "the contiguous fire companies would automatically be
dispatched to all reported or actual structure or building fires in Tuckerton."
Eggert submitted MOAs that were unacceptable to DFS because the MOAs
stated that "after arriving on scene, the [TVFC] would evaluate whether they
needed additional assistance and if so, would immediately contact fire
companies." Eggert's revised MOAs were equally unacceptable because the
revisions stated contiguous fire companies "would merely provide 'manpower,'"
rather than "a full dispatch, including fire apparatuses, engines, and ladders."
Eggert eventually submitted compliant MOAs between the TVFC, Parkertown
Fire Company, and West Tuckerton Fire Company.
Additional violations included a May 16, 2022 citation for failure to
provide a respiratory fit test. Although Eggert claimed the fit testing was
adversely impacted by the COVID-19 pandemic, it was performed shortly after
the inspection but before the citation. The TVFC had received prior fit testing
and PEOSH violations during Eggert's tenure as Chief, including a 2019 warning
from PEOSH for a firefighter responding to a fire scene without proper PPE,
and nine serious PEOSH citations in June 2018.
The TVFC was suspended from operations on June 7, 2022. After the
TVFC was suspended, Eggert provided DFS with some of the documents
A-3501-23 6 requested in March 2022. For example, Eggert provided DFS with a compliant
RPP, having previously only provided "a one-page copy of the self-contained
breathing apparatus regulations, which was only one part of the RPP."
During the investigation and after the suspension, Eggert reportedly made
public comments in local newspapers and at Council meetings. The June 16,
2022 issue of the Asbury Park Press quoted Eggert as stating that "the problems
raised" by the investigation "were largely 'a paperwork issue' that he accepts
responsibility for." The Tuckerton/Little Egg Harbor Leader reported on the
March 21, 2022 Tuckerton Borough Council meeting as follows:
Eggert then thanked the anonymous person who had reported the [TVFC] to the state [DFS]. In addition to being commended by the [DFS] for having adequate paperwork (with the exception of one document which [Eggert] claimed to be in the process of submitting), the [DFS] gave the Eggerts advice on how to secure grant money to improve their squad and its efforts.
The comments prompted DFS to tell Eggert on multiple occasions to not make
"false and misleading statements" about DFS's investigation.
Following the TVFC's suspension, Eggert was involved in a traffic
incident. While driving at about 9:41 a.m. on July 25, 2022, Eggert encountered
a non-functioning traffic light caused by a power outage at an intersection in
Tuckerton. Near the intersection was a motor vehicle accident. With a portable
A-3501-23 7 radio, Eggert "reported the incident to County Dispatch using the SOT-3 call
sign."4 According to Joseph Jubert, Ocean County Chief Fire Coordinator, the
SOT is "a resource used for water supply in the southern part of [Ocean] County"
and "anyone authorized to use that call sign" would have had to be "designated
through the [Southern Ocean Tanker] task force." After Eggert used the SOT-3
call sign, Jubert directed Eggert to not "use the SOT-3 call designation because
[Eggert] was not with an affiliated [f]ire [c]ompany" as the TVFC had been
suspended at the time.
On the same date, Frank D'Amore, Tuckerton Borough Councilman,
reported he was contacted by County Dispatch and "asked . . . if there [were]
any changes in the [TVFC] being out of service." D'Amore replied that the
TVFC remained out of service. In response, County Dispatch informed
D'Amore that Eggert "had a radio and was transmitting with the radio and it was
interfering with the accident or the scene of the accident." D'Amore became
"concerned that if anything happened as a result of Eggert calling the incident
into County Dispatch, it could affect the coverage set up for Tuckerton by
4 The portable radio was provided to Eggert by the Forked River Fire Department. Gleghorn indicated the Forked River Fire Department loaned five radios to the TVFC. While four radios had already been returned, Gleghorn stated Eggert utilized the fifth, which had not been returned, to report the incident. A-3501-23 8 Nelsen." Nelsen also received multiple "complaint[s]" concerning Eggert's use
of the SOT-3 call sign with the portable radio.
After DFS concluded its investigation, it issued a letter dated August 15,
2022, informing Eggert his "New Jersey Firefighter I, Firefighter II, Hazardous
Materials: Awareness, Hazardous Materials: Operations, Incident Management
Level 1, Incident Management Level 2[,] and Incident Management Level 3
certifications" were permanently revoked pursuant to N.J.A.C. 5:73-1.9(a)(3),
(a)(4), (a)(6), and (a)(7).
N.J.A.C. 5:73-1.9(a) provides:
The [DFS] may suspend and/or revoke a certification . . . if . . . [it] has determined that the holder:
....
3. Has been grossly negligent or has engaged in misconduct in the performance of any of his or her duties;
4. Has failed, over a period of time, to maintain a minimally acceptable level of competence;
6. Has made a false or misleading written statement, or has made a material omission in any submission to the Department; or
A-3501-23 9 7. Has violated any provision of this chapter.
The revocation letter, which was signed by DFS's Office of Training and
Certification Supervisor Kent Neiswender, stated Eggert violated N.J.A.C. 5:73-
1.9(a)(3) by utilizing a Forked River Fire Department "portable radio" on July
25, 2022, "to request police roadblocks and traffic diversion [after] two
contiguous fire companies . . . had . . . already cleared . . . the scene." According
to the letter, Eggert was supposed to have returned the portable radio when the
TVFC was suspended and was not authorized to utilize the SOT-3 call sign as it
"was not in service and thus not applicable at the time." Further, Eggert's use
of the call sign "created mayhem in the Ocean County Sheriff's Communication
Center and amongst Tuckerton and Little Egg Harbor Police Departments."
The letter further provided Eggert violated N.J.A.C. 5:73-1.9(a)(4) based
on nine previous PEOSH violations that occurred in 2018, three previous
PEOSH violations that occurred in 2019, and a PEOSH repeat citation that
occurred in 2022. Regarding N.J.A.C. 5:73-1.9(a)(6), the letter relied on
numerous statements and omissions, including Eggert providing inaccurate
roster reports of active firefighters, deficient firefighter application packets,
inadequate MOA language, and misleading public comments.
A-3501-23 10 Lastly, according to the revocation letter, Eggert violated N.J.A.C. 5:73-
1.9(a)(7) as follows:
Eggert's continual erroneous and misleading public statements, fabricated and inaccurate private statements before the Ocean County Fire Chief's Association general membership meeting, social media posts as head of the [TVFC], and demonstrated non-compliance with the multitude of required documents and answers to complaints on multiple counts has subverted the authority of [DFS] . . . , publicly minimized the importance of the Office of Training and Certification . . . , falsely misled the public and investigators by submitting multiple application packages for certifications . . . while publicly stating the [TVFC] was in compliance and "commended" by [DFS] for only "needing [one] document."
The letter added Eggert
continually flaunted referenced standards and publications, particularly PEOSH subchapter [ten] Firefighting and NFPA 1720 Standard for the Organization and Deployment of Fire Suppression Operations, Emergency Medical Operations, and Special Operations to the Public by Volunteer Fire Departments as evidenced by their [o]rders to [c]omply with monetary penalties as well as the Mayor and Council of Tuckerton suspending their operations indefinitely due to inability to obtain staffing and response schedules of NFPA 1720.
Eggert challenged the revocation and the matter was transferred to the
Office of Administrative Law (OAL) as a contested case for a hearing before an
ALJ. During the three-day hearing, for DFS, the ALJ heard testimony from
A-3501-23 11 Nelsen, Gleghorn, Jubert, and D'Amore. Eggert testified on his own behalf and
produced Neiswender; Thomas Wetmore, New Gretna's Fire Department Chief;
Ernie Toriano III, Wildwood's Fire Department Chief; and Charles Uhl,
Galloway Township's Ambulance Squad Chief.5
On March 1, 2024, the ALJ issued an initial decision sustaining Eggert's
violations of N.J.A.C. 5:73-1.9(a)(3), (4), (6), and (7), and revocation of his
seven certifications. The ALJ determined DFS had proven the violations by a
preponderance of the credible evidence. In assessing credibility, the ALJ found
"Gleghorn, Jubert, D'Amore, Wetmore, Uhl, Neiswender and Toriano all
appeared to be honest, forthright, and credible witnesses," who provided "clear,
consistent, and believable testimony."
Turning to Nelsen's testimony, which Eggert hotly disputed and sought to
discredit during the hearing, the ALJ stated:
Nelsen's testimony was knowledgeable and professional, and he is an experienced investigator whom D'Amore described as a great liaison. Throughout the hearing and in the post-hearing submissions, [Eggert] repeatedly sought to make Nelsen himself the issue, maintaining that his opinions and recommendations were at issue in this matter. Specifically, [Eggert] argues that "misleading statements" in Nelsen's testimony "establish a
5 Wetmore, Toriano, and Uhl mainly vouched for Eggert's firefighting capabilities. A-3501-23 12 pervasive lack of credibility on his part" and that his testimony was "fiction" or "gross exaggeration." These arguments are both unfounded and unsupported by the record.
The ALJ dismissed Eggert's attacks on Nelsen's investigation and the
revocation letter, the contents of which were largely supplied to Neiswender by
Nelsen, noting "this is a de novo hearing, and the investigation itself is not at
issue." The ALJ continued, "Rather, at issue is whether [DFS] has met its burden
to demonstrate, by the preponderance of the competent and credible evidence ,
that Eggert's substantiated conduct meets the standard to support [DFS's]
determination to revoke his certifications." The ALJ also rejected Eggert's
selective use of portions of Nelsen's testimony to impugn his credibility,
describing Eggert's argument as "a gross misrepresentation of Nelsen's
testimony." The ALJ found nothing in Nelsen's "tone, expression, or demeanor"
to lead him to believe Nelsen "was not being truthful" and concluded "Nelsen's
testimony was based upon the information provided by Eggert himself ."
Conversely, the ALJ found Eggert's testimony lacked credibility.
According to the ALJ, "Eggert's testimony was largely self-interested and
unsupported, was replete with examples of passing the buck to others, failed to
take any responsibility as chief for the actions of the TVFC, and included plainly
unreasonable assumptions." The ALJ elaborated, "[M]uch of [Eggert's
A-3501-23 13 testimony] was unsupported by any documentary evidence or corroborating
testimony, and in other instances was rebutted by credible witness testimony."
Accordingly, the ALJ made factual findings largely consistent with Nelsen's
testimony, rebutting in large part Eggert's competing contentions.
Turning to the legal analysis, the ALJ first addressed whether DFS "ha[d]
sufficient authority . . . to determine whether [Eggert's] actions as chief of the
TVFC support[ed] the revocation of his certifications." Relying on this court's
unpublished opinions and other administrative agency decisions, the ALJ held
Eggert's "substantiated conduct as chief could meet the standards for revocation
under N.J.A.C. 5:73-1.9(a)."
Addressing the specific allegations, the ALJ determined Eggert's
"unauthorized" use of "the SOT-3 call sign" while the TVFC was suspended,
causing "confusion at County Dispatch," constituted "misconduct in the
performance of his duties," in violation of N.J.A.C. 5:73-1.9(a)(3). The ALJ
explained:
[DFS] argues that Eggert's unauthorized use of the SOT-3 call sign on July 25, 2022, "caused confusion and concern among emergency responders in the County and the Borough." [Eggert] contends that [he] was authorized to utilize the call sign and that the incident "proved that Eggert is a civic-minded first responder who put himself in harm's way to protect the public and did what any first responder would do to
A-3501-23 14 obtain assistance to avert harm in a dangerous situation."
Whether Eggert's reporting of the accident was civic-minded is not at issue. In fact, Nelsen testified that if Eggert had "used a 9[-]1[-]1 . . . phone [call] instead of the radio then we wouldn't even be here." However, as the TVFC was suspended on June 7, 2022, he was not affiliated with a fire company. While Eggert testified that D'Andrea told him that he "still sat in the position of SOT-3" until his decertification, D'Andrea did not testify, and this self-interested testimony was unsupported. Following the incident, he spoke to Jubert, who advised that he could not use the SOT-3 call sign "because he was not with an affiliated Fire Company with that task force" since the TVFC was suspended.
The record is devoid of any substantiation of Eggert's claim that he was authorized to use the SOT-3 call sign on July 25, 2022; however, it is evident that had he spoken to Jubert prior to that date, he would have known that in fact he was not authorized. Eggert surely knew that the TVFC was suspended, and it was incumbent on him to determine if he remained authorized to use the SOT-3 call sign. The record demonstrates that he failed to do so.
Next, the ALJ determined DFS met its burden of establishing Eggert
"failed, over a period of time, to maintain a minimally acceptable level of
competence," in violation of N.J.A.C. 5:73-1.9(a)(4). In support, the ALJ cited
"the PEOSH violations, staffing issues, and [Eggert's] failure to submit a
compliant MOA prior to the suspension of the TVFC." Regarding the PEOSH
A-3501-23 15 violations, according to the ALJ, "the record demonstrates that TVFC has
repeated PEOSH violations during Eggert's tenure as [C]hief." The ALJ
continued, "Notwithstanding Eggert's efforts to deflect responsibility for the
PEOSH violations, as [C]hief, he bore the ultimate responsibility."
The ALJ found "[t]he staffing issues at the TVFC were also well
documented." The ALJ elaborated:
The roster, current as of February 3, 2022, provided by Eggert on March 21, 2022, showed that the TVFC had twelve active firefighters, which put the TVFC in violation of the NFPA standards for the required number of firefighters available to respond to calls for the Borough.
The number of active firefighters prevented the TVFC from having at least fifteen firefighters on scene within nine minutes [ninety] percent of the time, as required by Tuckerton being in the urban demand zone. Additionally, the SFA requires a firefighter to respond to at least [twenty-five] percent of incoming calls, and by ordinance, the Borough requires "at least [sixty] percent of duty to be composed of actual attendance and duty at fires and drills" for active members of the TVFC. However, the response percentages for 2021 showed that four of the twelve available firefighters met the SFA standard of [twenty-five] percent, one of whom was Eggert. Therefore, according to the Borough standard of [sixty] percent, only two firefighters met that standard, Eggert and his father . . . . The response percentages for the first few months of 2022 showed that five firefighters met the SFA standard and only two, Eggert and his father . . . met the Borough standard. These percentages were below the
A-3501-23 16 SFA standards. While the Division did not specifically request records pertaining to firefighters' attendance at fire drills, Eggert had sufficient opportunity to provide such information but did not.
[DFS] also determined that the roster demonstrated that eleven of the twelve firefighters had certification deficiencies. Eggert was notified by [DFS] via email on April 22, 2022, about these deficiencies and was asked to submit proof of the deficient certification by June 1, 2022. In Eggert's June 1, 2022[] response, all eighteen applications submitted were deficient.
Addressing the MOAs, the ALJ noted:
Eggert was advised that since the TVFC had twelve active firefighters rather than fifteen, it would need to enter into MOAs with the fire companies of contiguous municipalities that were required to state that the contiguous fire companies would automatically be dispatched to all reported or actual structure or building fires in Tuckerton in order to meet the fifteen- firefighter requirement. Following the submission of several deficient MOAs, a sufficient one was submitted between the TVFC and Parkertown Fire Company and West Tuckerton Fire Company on June 7, 2022. However, as [DFS] notes, "[b]y the time Eggert provided compliant MOAs, the [T]VFC had been suspended from service and the MOAs were then of 'no use whatsoever.' Therefore, Eggert was unable to provide [DFS] with adequate MOAs providing sufficient fire coverage for the Borough in time for them to have any effect or benefit to the citizens of the Borough."
A-3501-23 17 The ALJ agreed with DFS's argument that Eggert "was not a rank-and-file
firefighter but the Fire Chief of the [TVFC], who bore ultimate responsibility
for the fire company, its compliance with health and safety rules, and its
compliance with [DFS] document requests."
Next, the ALJ determined DFS met its burden of establishing Eggert made
a false or misleading written statement or made a material omission in a
submission to DFS in violation of N.J.A.C. 5:73-1.9(a)(6).6 The ALJ reasoned
"Eggert failed over the course of several months to provide the documentation
requested by [DFS] regarding the certification deficiencies for members of the
TVFC" and "[t]he eighteen applications provided to [DFS] on June 1, 2022,
remained deficient." As to DFS's inquiry concerning the discrepancy between
its internal roster and the roster provided by Eggert, the ALJ found Eggert
responded with "insufficient responses including 'resigned' and 'long gone.'"
Further, the ALJ found "Eggert's responses to [DFS's] requests made in
furtherance of its investigation were not a 'good faith effort.'" The ALJ
explained that "[p]rior to Eggert's submission of a compliant RPP following the
suspension of the TVFC, he had only provided a one-page copy of the self-
6 The ALJ determined DFS did not meet its burden of establishing a violation of N.J.A.C. 5:73-1.9(a)(6) based on Eggert's public statements in newspaper articles or meeting minutes. A-3501-23 18 contained breathing apparatus regulations, which was only one part of the RPP, "
and he "submitted non-compliant MOAs" before finally complying. The ALJ
concluded "the record support[ed DFS's] argument that '[t]hese repeated
omissions to the requested information . . . prevented [DFS] from conducting its
investigation and being able to determine whether the [T]VFC was adequately
providing fire coverage to the citizens of the Borough.'" Because DFS "met its
burden" on the previous violations, the ALJ also sustained "[t]he charge of
violating N.J.A.C. 5:73-1.9(a)(7)."
Eggert filed exceptions to the initial decision challenging the ALJ's
findings of fact and conclusions of law, particularly the ALJ's credibility
assessments. On May 30, 2024, the DCA Commissioner adopted the ALJ's
initial decision "in its entirety." The Commissioner determined the ALJ
properly assessed the witnesses' credibility, including Eggert's and Nelsen's, and
Eggert's "remaining exceptions raise[d] issues that the ALJ also specifically and
thoroughly addressed." The Commissioner concluded:
After carefully weighing the evidence presented by the parties, the ALJ correctly determined that [DFS] met its burden of proof with respect to each charge and that [DFS] is fully authorized, through its obligation to enforce the [Uniform Fire Safety Act (UFSA)], N.J.S.A. 52:27D-192 to -213, and its "comprehensive regulations setting standards for fire service training
A-3501-23 19 and certification[, N.J.A.C. 5:73-1.1 to -18.9]," to revoke Eggert's certifications.
This appeal followed.
On appeal, plaintiff makes the following arguments:
[I.] THE DCA'S DECISION TO REVOKE CHIEF EGGERT'S FIREFIGHTER CERTIFICATIONS BASED ON NELSEN'S STATEMENTS SHOULD BE OVERTURNED BECAUSE THE DETERMINATION WAS ARBITRARY, CAPRICIOUS, . . . UNREASONABLE, [AND] UNSUPPORTED BY SUFFICIENT, COMPETENT, AND CREDIBLE EVIDENCE.
[A.] No Adjudicator Could Reasonably Conclude that Chief Eggert Engaged in Gross Negligence or Misconduct in Performance of Duties, per [N.J.A.C.] 5:73-1.9(a)(3).
[B.] The DCA's Decision that Chief Eggert Failed Over a Period of Time to Maintain a Minimally Acceptable Level of Competence is Unreasonable, per [N.J.A.C.] 5:73-1.9(a)(4).
[C.] The Determination that Eggert Made a Material Omission in a Written Submission to the Department was Arbitrary, Capricious, and Unreasonable.
[D.] The Revocation Letter Should Have Been Considered.
A-3501-23 20 ....
[II.] [THE] A.L.J.['S] . . . CREDIBILITY DETERMINATIONS ARE UNSUPPORTED BY THE RECORD.
A. No Unbiased Adjudicator Could Determine Nelsen Was Credible.
B. The Determination that Eggert was Not Credible Was Arbitrary, Capricious, And Unreasonable.
[III.] DCA'S DECISION SHOULD BE REVERSED DUE TO THE SEVERITY OF THE SANCTIONS IN CONTRAST TO THE ALLEGED VIOLATIONS.
[IV. DFS] ACTED ULTRA VIRES, OUTSIDE THE BOUNDS OF ITS AUTHORITY, IN REVOKING EGGERT'S CERTIFICATIONS. (NOT RAISED BELOW).
[V.] THE DCA MISINTERPRETED THE LAW IN REVOKING EGGERT'S CERTIFICATIONS.
II.
At the outset, we acknowledge our standard of review of an administrative
agency's decision is limited, In re Stallworth, 208 N.J. 182, 194 (2011), and we
afford "substantial deference" to the actions of administrative agencies "because
of the 'expertise and superior knowledge' of agencies in their specialized fields,"
In re License Issued to Zahl, 186 N.J. 341, 353 (2006) (quoting Greenwood v.
State Police Training Ctr., 127 N.J. 500, 513 (1992)); see Stallworth, 208 N.J.
A-3501-23 21 at 194 ("A reviewing court 'may not substitute its own judgment for the agency's,
even though the court might have reached a different result.'" (quoting In re
Carter, 191 N.J. 474, 483 (2007))). Therefore, we will not reverse an agency's
decision "unless there is a clear showing that it is arbitrary, capricious, or
unreasonable, or that it lacks fair support in the record." Mount v. Bd. of Trs.,
Police & Firemen's Ret. Sys., 233 N.J. 402, 418 (2018) (quoting Russo v. Bd. of
Trs., Police & Firemen's Ret. Sys., 206 N.J. 14, 27 (2011)).
To determine whether an administrative agency's decision is arbitrary,
capricious, or unreasonable, we must assess:
(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.
[Allstars Auto Grp., Inc. v. N.J. Motor Vehicle Comm'n, 234 N.J. 150, 157 (2018) (quoting Stallworth, 208 N.J. at 194).]
"'Substantial evidence' means 'such evidence as a reasonable mind might
accept as adequate to support a conclusion.'" Figueroa v. N.J. Dep't of Corr.,
A-3501-23 22 414 N.J. Super. 186, 192 (App. Div. 2010) (quoting In re Pub. Serv. Elec. & Gas
Co., 35 N.J. 358, 376 (1961)). "The burden of proving that an agency action is
arbitrary, capricious, or unreasonable is on the challenger." Parsells v. Bd. of
Educ. of Somerville, 472 N.J. Super. 369, 376 (App. Div. 2022), aff'd as
modified, 254 N.J. 152 (2023).
Although we will not "substitute [our] own judgment for the agency's,"
Allstars Auto Grp., Inc., 234 N.J. at 158 (quoting Stallworth, 208 N.J. at 194),
we are "in no way bound by [an] agency's interpretation of a statute or its
determination of a strictly legal issue." Ibid. (second alteration in original)
(quoting Dep't of Child. & Fams., DYFS v. T.B., 207 N.J. 294, 302 (2011)).
Nevertheless, "we defer to [agency] fact[-]findings that are supported by
sufficient credible evidence in the record." McClain v. Bd. of Rev., Dep't of
Lab., 237 N.J. 445, 456 (2019).
Under N.J.S.A. 52:14B-10(c), "[a]ll hearings of a State agency required
to be conducted as a contested case under this act or any other law shall be
conducted by an [ALJ,]" who then issues a decision "recommend[ing] findings
of fact and conclusions of law" to the agency. "[U]pon a review of the record
submitted by the [ALJ]," the agency
may reject or modify findings of fact, conclusions of law or interpretations of agency policy in the decision[]
A-3501-23 23 but shall state clearly the reasons for doing so. The agency . . . may not reject or modify any findings of fact as to issues of credibility of lay witness testimony unless it is first determined from a review of the record that the findings are arbitrary, capricious[,] or unreasonable or are not supported by sufficient, competent, and credible evidence in the record.
[Ibid.]
"Under this statute, it is not for this court 'or the agency head to disturb
[a] credibility determination, made after due consideration of the witnesses'
testimony and demeanor during the hearing.'" In re Snellbaker, 414 N.J. Super.
26, 36 (App. Div. 2010) (alteration in original) (quoting H.K. v. State of N.J.
Dept. of Human Servs., Div. of Med. Assistance and Health Servs., 184 N.J.
367, 384 (2005)). Indeed, an agency is "not at liberty to simply substitute its
judgment for that of the ALJ's." Cavalieri v. Bd. of Trs. of Pub. Emps. Ret. Sys.,
368 N.J. Super. 527, 534 (App. Div. 2004). ALJs are not to be considered
"second-tier players or hold an inferior status as factfinders." In re Hendrickson,
235 N.J. 145, 160 (2018). Instead, we give "due regard to the opportunity of the
one who heard the witnesses to judge . . . their credibility," In re Taylor, 158
N.J. 644, 656 (1999) (quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)),
and defer to credibility findings "that are often influenced by matters such as
observations of the character and demeanor of witnesses and common human
A-3501-23 24 experience that are not transmitted by the record," State v. Locurto, 157 N.J.
463, 474 (1999).
Where the record "can support more than one factual finding, it is the
ALJ's credibility findings that control, unless they are arbitrary or not based on
sufficient credible evidence in the record as a whole." Cavalieri, 368 N.J. Super.
at 537; see H.K., 184 N.J. at 384-85 (criticizing an agency head for rejecting an
ALJ's credibility determinations of lay witnesses); In re Pub. Serv. Elec. & Gas
Co., 35 N.J. at 376 ("Any review of the facts must be confined to the question
of whether they are supported by substantial evidence, i.e., such evidence as a
reasonable mind might accept as adequate to support a conclusion." (quoting In
re Hackensack Water Co., 41 N.J. Super. 408, 418 (App. Div. 1956))). Still,
"[a]ppellate courts must engage in a 'careful and principled consideration of the
agency record and findings,'" and "not simply a pro forma exercise in which [the
court] rubber stamp[s] findings that are not reasonably supported by the
evidence." In re Taylor, 158 N.J. at 657-58 (second and third alterations in
original) (first quoting Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85, 93
(1973); then quoting Chou v. Rutgers, 283 N.J. Super. 524, 539 (App. Div.
1995)).
A-3501-23 25 Applying these principles, we are satisfied Eggert has failed to meet his
burden of proving DCA's decision was arbitrary, capricious, or unreasonable, or
lacks fair support in the record. Eggert's arguments challenge the ALJ's core
determination that Nelsen was a credible witness, but Eggert was not. The
ensuing findings are dispositive of the issues in the case and the crux of Eggert's
appeal. The DCA adopted the ALJ's credibility findings based on its
determination that the findings were supported by sufficient competent and
credible evidence in the record. Given our deferential standard of review,
particularly of credibility assessments, we discern no basis to intervene. The
exercise of our deference in these circumstances "is premised on our confidence
that there has been a careful consideration of the facts in issue and appropriate
findings addressing the critical issues in dispute." Bailey v. Bd. of Rev., 339
N.J. Super. 29, 33 (App. Div. 2001).
Eggert also argues "the sanction of revoking every one of his certifications
was disproportionate to the 'paperwork' offenses cited, shocking the sense of
fairness of any reasonable observer." "Our appellate review of an agency's
choice of sanction is limited." Zahl, 186 N.J. at 353. "[W]hen reviewing
administrative sanctions, 'the test . . . is whether such punishment is so
disproportionate to the offense, in light of all the circumstances, as to be
A-3501-23 26 shocking to one's sense of fairness.'" In re Herrmann, 192 N.J. 19, 28-29 (2007)
(omission in original) (quoting In re Polk, 90 N.J. 550, 578 (1982) (internal
quotation marks omitted)). Mindful that we "may not substitute [our] own
judgment for the agency's," Stallworth, 208 N.J. at 194 (quoting Carter, 191 N.J.
at 483), we are not convinced the sanction is so disproportionate to justify our
intervention. Because Eggert was the highest-ranking officer in the TVFC and
was responsible for the proper administration of the department , we are
persuaded the sanctions imposed were proper.
Eggert further argues the DCA lacked authority to revoke his
certifications, asserting "[d]iscipline of firefighters exceeds the authority
granted by the UFSA and the other . . . enabling statutes." Eggert contends
"[u]nder the UFSA, there is no stated violation for a firefighter's misconduct in
performance of duties, failure to maintain a minimally acceptable level of
competence, or material omissions to the [DFS]." Similarly, according to
Eggert, "[n]o violation of the UFSA allows for the revocation of a firefighter's
certification" and "[t]he UFSA contains no provision permitting the [DFS] to
discipline firefighters."
"Normally, we do not consider issues not raised below at an administrative
hearing." In re Stream Encroachment Permit, Permit No. 0200-04-0002.1 FHA,
A-3501-23 27 402 N.J. Super. 587, 602 (App. Div. 2008) (citing Bryan v. Dep't of Corr., 258
N.J. Super. 546, 548 (App. Div. 1992)). "[U]nless the questions so raised on
appeal go to the jurisdiction of the trial court or concern matters of great public
interest," we will decline to consider it. Nieder v. Royal Indem. Ins. Co., 62
N.J. 229, 234 (1973) (quoting Reynolds Offset Co. v. Summer, 58 N.J. Super.
542, 548 (App. Div. 1959)). Because neither principle is implicated here, we
will not consider the argument.
Lastly, Eggert argues "[t]he DCA misinterpreted the law in imposing
revocations on [him] for purported administrative shortcomings." Eggert asserts
the "[r]egulation and [s]tatute relied upon by [DFS] allow revocation for failures
concerning the technical skills, abilities[,] and performances of the certificate
holder in the context of fire[]fighting," not "for some perceived failure as an
administrator."
"[T]he powers of an administrative agency should be liberally construed
to permit the agency to achieve the task assigned to it, and . . . such
administrative agency has such implied incidental powers as may reasonably be
adapted to that end." In re Heller, 73 N.J. 292, 303 (1977) (quoting In re Comm'r
of Banking & Ins., 98 N.J. Super. 263, 271-72 (App. Div. 1967)). "Where . . .
the task of the regulatory agency is to 'protect the health and welfare of members
A-3501-23 28 of the public[,]' . . . the grant of implied powers is particularly important." Id.
at 303-04 (quoting Rite Aid of N.J., Inc. v. Bd. of Pharmacy, 124 N.J. Super.
62, 67 (App. Div. 1973)).
"The [UFSA] and related legislation . . . have been adopted to ensure
public safety and welfare." N.J.A.C. 5:73-1.3(b). Certification requirements
ensure "members of the fire service . . . have sufficient knowledge and
competence" to "adequately and effectively" conduct "fire suppression
activities." Ibid. Further, the certification requirements apply to "persons
involved in fire suppression activities including but not limited to firefighter
recruits, firefighters, fire officers, fire service instructors, and fire
investigators." N.J.A.C. 5:73-1.3(b)(1) (emphasis added).
We are satisfied that in order to fulfill its mandate of protecting public
safety and welfare, the DCA possesses the authority to revoke a fire chief's
certifications, even when the conduct involves failures as an administrator. This
is especially true considering the role of the fire chief, the highest-ranking
officer in a fire department. In Karins v. Atl. City, 152 N.J. 532, 562 (1998),
our Supreme Court stated:
Conduct that weakens the public's trust tends to destroy the public's confidence in a fire department. Firefighters can perform their duties well only if they merit the trust and confidence of the community they
A-3501-23 29 serve. Public trust and confidence are essential to the department's effective and satisfactory operation. The [c]hief of a fire department has the responsibility of sedulously maintaining the departmental morale and discipline. The promotion of safety of persons and property is at the core of the mission of a fire department.
As the TVFC Chief, Eggert was responsible for maintaining the public's
trust by ensuring the proper administration of the TVFC and promoting the
safety of its firefighters, the public, and property. Put simply, because Eggert
failed to fulfil his responsibilities as fire chief, thus weakening the public's trust,
the DCA was authorized to revoke Eggert's certifications.
We reject Eggert's contention that the specific language of N.J.A.C. 5:73-
1.3(b) does not allow the "use of the decertification process as a rebuke for some
perceived administrative shortcoming." Under the code, the certification
requirements apply to "persons involved in fire suppression activities including
but not limited to firefighter recruits, firefighters, fire officers, fire service
instructors, and fire investigators." N.J.A.C. 5:73-1.3(b)(1) (emphasis added).
Because Eggert was involved in fire suppression activities as the TVFC Fire
Chief, the certification requirements apply to him.
Affirmed.
A-3501-23 30