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

• Court: New Jersey Superior Court Appellate Division
• Decided: August 31, 2018
• Docket: A-3038-16T3
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-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.

13 A-3038-16T3