NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any cou rt." 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-3163-16T4
IN THE MATTER OF JESSICA GARCIA, UNION CITY, DEPARTMENT OF PUBLIC SAFETY. ____________________________
Argued September 26, 2018 – Decided June 19, 2019
Before Judges Fuentes, Accurso and Moynihan.
On appeal from the New Jersey Civil Service Commission, Docket No. 2015-401.
Joseph William Tartaglia argued the cause for appellant Jessica Garcia (Caruso Smith Picini, PC, Timothy Richard Smith, of counsel; Steven J. Kaflowitz, on the brief).
Juan Carlos Fernandez argued the cause for respondent Union City Department of Public Safety (O'Toole Scrivo Fernandez Weiner Van Lieu, LLC, attorneys; Kenneth B. Goodman, of counsel and on the brief).
Gurbir S. Grewal, Attorney General, attorney for respondent Civil Service Commission (Pamela N. Ullman, Deputy Attorney General, on the statement in lieu of brief).
PER CURIAM Jessica Garcia appeals from the Final Decision of the Civil Service
Commission (Commission) upholding the decision of the City of Union City
(City) to terminate her employment as a police officer, effective July 1, 2014.
The Commission's decision was memorialized in a Final Administrative Action
dated February 27, 2017. After considering the record developed and the
evidence presented by the parties at an evidentiary hearing held before an
Administrative Law Judge (ALJ), the Commission adopted the ALJ's Initial
Decision in which she found the City proved, by a preponderance of the
evidence, that appellant: (1) engaged in conduct unbecoming a public employee,
N.J.A.C. 4A:2-2.3(a)(6); (2) was insubordinate by failing to follow and carry
out a lawful order of a superior officer, N.J.A.C. 4A:2-2.3(a)(2); and (3)
neglected her duty by failing to properly secure her service weapon, N.J.A.C.
4A:2-2.3(a)(7).
Appellant argues the Commission erred in adopting the ALJ's Initial
Decision because the record developed at the evidentiary hearing does not
contain competent evidence to support the City's action to terminate her
employment as a police officer. We reject this argument and affirm. We gather
the following facts from the record developed before the ALJ.
A-3163-16T4 2 I
At all times relevant to this case, appellant resided in Monroe Township,
Middlesex County, with Corey Corbo, a fellow Union City police officer. On
the evening of June 11, 2014, Monroe Township Police Officer Jamey DiGrazio
responded to appellant's residence in response to an emergency first aid call of
an unconscious, unresponsive man who appeared to be in cardiac distress. By
the time DiGrazio arrived, paramedics were in appellant's bedroom providing
medical assistance to a man who was later identified as Corey Corbo. Appellant
was also present.
At the hearing before the ALJ, DiGrazio testified appellant told him Corbo
"had done a bump of cocaine about five days ago." She also told DiGrazio that
Corbo and she were Union City police officers and asked him not tell anyone
about this incident. DiGrazio denied appellant's request and informed the
paramedics of Corbo's alleged ingestion of cocaine and documented appellant's
improper request in his incident report. When questioned by appellant's counsel,
DiGrazio conceded he did not find any illicit drugs in the residence and did not
ask appellant how she knew Corbo had used cocaine. Monroe Township Police
Detective Sergeant Keith Saloom testified he directed DiGrazio to forward a
A-3163-16T4 3 copy of the incident report to the Internal Affairs Bureau of the Union City
Police Department.
Union City Police Chief Richard Molinari testified that in June 2014, he
was "informed" emergency medical staff had responded to appellant's residence
to provide medical aid to Corbo. According to Molinari, appellant was listed as
"the reporting party." Molinari also became aware that appellant told the
Monroe Township Police Department that Corbo had done a "bump of cocaine."
As part of Molinari's testimony, the ALJ admitted into evidence a copy of a
report prepared by the Monroe Township Police Department dated "around"
June 13, 2014. Molinari also testified that he "was informed" that Corbo was
hospitalized on June 12, 2014.
Based on the information available to him at the time, Molinari testified
he believed he had "reasonable suspicion" to order appellant to take a drug
screening test. However, before ordering appellant to submit to such a test, he
contacted the Hudson County Prosecutor's Office (HCPO) to confirm he had the
authority to proceed in this fashion. An Assistant Prosecutor with the HCPO
agreed with Molinari that under these circumstances, he had the authority as the
Chief of Police to order appellant to submit to a drug test. Molinari ordered
A-3163-16T4 4 Lieutenant Ramon Vasquez to contact appellant and order her to report to the
Union City Police Department.
Lieutenant Vasquez carried out Chief Molinari's instructions as ordered.
Chief Molinari testified appellant was aware of his order, understood she was
required to obey it, and made repeated assurances "she was on her way."
However, appellant did not report as ordered. Molinari also testified that
Captain Nichelle Luster contacted appellant and personally ordered her to report
for a drug test. Captain Luster later informed Chief Molinari that appellant had
"voluntarily" admitted herself into an inpatient substance abuse rehabilitation
facility.
Captain Luster testified appellant telephoned her at approximately seven
o'clock that evening, crying. Luster testified she made clear to appellant a
number of times that she was required to report and submit to a drug test.
According to Luster, appellant was very emotional and abruptly hung up the
phone crying. Appellant did not report nor take the drug test as ordered. On
June 14, 2014, Corbo's former wife called Captain Luster and informed her that
she had found a loaded handgun in a duffle bag on the floor of Corbo's hospital
room. In response to Chief Molinari's order, Luster recovered the handgun. The
serial number on the handgun established it was registered to appellant. The
A-3163-16T4 5 record shows appellant did not file a report disclosing that the weapon was
missing.
Appellant testified in her own defense. She denied placing her service
weapon in the duffle bag and did not know how it ended up there. However,
appellant admitted: (1) she was aware of Chief Molinari's order directing her to
report to the police station to submit to a drug test; (2) she knowingly did not
report as ordered; (3) she asked a fellow Union City police officer how long
cocaine stayed in a person's system; and (4) she voluntarily admitted herself into
an inpatient substance abuse rehabilitation facility because she was abusing
prescription medication.
Based on these uncontested facts and the nature of the disciplinary
infractions, the ALJ found the City presented sufficient competent evidence to
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any cou rt." 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-3163-16T4
IN THE MATTER OF JESSICA GARCIA, UNION CITY, DEPARTMENT OF PUBLIC SAFETY. ____________________________
Argued September 26, 2018 – Decided June 19, 2019
Before Judges Fuentes, Accurso and Moynihan.
On appeal from the New Jersey Civil Service Commission, Docket No. 2015-401.
Joseph William Tartaglia argued the cause for appellant Jessica Garcia (Caruso Smith Picini, PC, Timothy Richard Smith, of counsel; Steven J. Kaflowitz, on the brief).
Juan Carlos Fernandez argued the cause for respondent Union City Department of Public Safety (O'Toole Scrivo Fernandez Weiner Van Lieu, LLC, attorneys; Kenneth B. Goodman, of counsel and on the brief).
Gurbir S. Grewal, Attorney General, attorney for respondent Civil Service Commission (Pamela N. Ullman, Deputy Attorney General, on the statement in lieu of brief).
PER CURIAM Jessica Garcia appeals from the Final Decision of the Civil Service
Commission (Commission) upholding the decision of the City of Union City
(City) to terminate her employment as a police officer, effective July 1, 2014.
The Commission's decision was memorialized in a Final Administrative Action
dated February 27, 2017. After considering the record developed and the
evidence presented by the parties at an evidentiary hearing held before an
Administrative Law Judge (ALJ), the Commission adopted the ALJ's Initial
Decision in which she found the City proved, by a preponderance of the
evidence, that appellant: (1) engaged in conduct unbecoming a public employee,
N.J.A.C. 4A:2-2.3(a)(6); (2) was insubordinate by failing to follow and carry
out a lawful order of a superior officer, N.J.A.C. 4A:2-2.3(a)(2); and (3)
neglected her duty by failing to properly secure her service weapon, N.J.A.C.
4A:2-2.3(a)(7).
Appellant argues the Commission erred in adopting the ALJ's Initial
Decision because the record developed at the evidentiary hearing does not
contain competent evidence to support the City's action to terminate her
employment as a police officer. We reject this argument and affirm. We gather
the following facts from the record developed before the ALJ.
A-3163-16T4 2 I
At all times relevant to this case, appellant resided in Monroe Township,
Middlesex County, with Corey Corbo, a fellow Union City police officer. On
the evening of June 11, 2014, Monroe Township Police Officer Jamey DiGrazio
responded to appellant's residence in response to an emergency first aid call of
an unconscious, unresponsive man who appeared to be in cardiac distress. By
the time DiGrazio arrived, paramedics were in appellant's bedroom providing
medical assistance to a man who was later identified as Corey Corbo. Appellant
was also present.
At the hearing before the ALJ, DiGrazio testified appellant told him Corbo
"had done a bump of cocaine about five days ago." She also told DiGrazio that
Corbo and she were Union City police officers and asked him not tell anyone
about this incident. DiGrazio denied appellant's request and informed the
paramedics of Corbo's alleged ingestion of cocaine and documented appellant's
improper request in his incident report. When questioned by appellant's counsel,
DiGrazio conceded he did not find any illicit drugs in the residence and did not
ask appellant how she knew Corbo had used cocaine. Monroe Township Police
Detective Sergeant Keith Saloom testified he directed DiGrazio to forward a
A-3163-16T4 3 copy of the incident report to the Internal Affairs Bureau of the Union City
Police Department.
Union City Police Chief Richard Molinari testified that in June 2014, he
was "informed" emergency medical staff had responded to appellant's residence
to provide medical aid to Corbo. According to Molinari, appellant was listed as
"the reporting party." Molinari also became aware that appellant told the
Monroe Township Police Department that Corbo had done a "bump of cocaine."
As part of Molinari's testimony, the ALJ admitted into evidence a copy of a
report prepared by the Monroe Township Police Department dated "around"
June 13, 2014. Molinari also testified that he "was informed" that Corbo was
hospitalized on June 12, 2014.
Based on the information available to him at the time, Molinari testified
he believed he had "reasonable suspicion" to order appellant to take a drug
screening test. However, before ordering appellant to submit to such a test, he
contacted the Hudson County Prosecutor's Office (HCPO) to confirm he had the
authority to proceed in this fashion. An Assistant Prosecutor with the HCPO
agreed with Molinari that under these circumstances, he had the authority as the
Chief of Police to order appellant to submit to a drug test. Molinari ordered
A-3163-16T4 4 Lieutenant Ramon Vasquez to contact appellant and order her to report to the
Union City Police Department.
Lieutenant Vasquez carried out Chief Molinari's instructions as ordered.
Chief Molinari testified appellant was aware of his order, understood she was
required to obey it, and made repeated assurances "she was on her way."
However, appellant did not report as ordered. Molinari also testified that
Captain Nichelle Luster contacted appellant and personally ordered her to report
for a drug test. Captain Luster later informed Chief Molinari that appellant had
"voluntarily" admitted herself into an inpatient substance abuse rehabilitation
facility.
Captain Luster testified appellant telephoned her at approximately seven
o'clock that evening, crying. Luster testified she made clear to appellant a
number of times that she was required to report and submit to a drug test.
According to Luster, appellant was very emotional and abruptly hung up the
phone crying. Appellant did not report nor take the drug test as ordered. On
June 14, 2014, Corbo's former wife called Captain Luster and informed her that
she had found a loaded handgun in a duffle bag on the floor of Corbo's hospital
room. In response to Chief Molinari's order, Luster recovered the handgun. The
serial number on the handgun established it was registered to appellant. The
A-3163-16T4 5 record shows appellant did not file a report disclosing that the weapon was
missing.
Appellant testified in her own defense. She denied placing her service
weapon in the duffle bag and did not know how it ended up there. However,
appellant admitted: (1) she was aware of Chief Molinari's order directing her to
report to the police station to submit to a drug test; (2) she knowingly did not
report as ordered; (3) she asked a fellow Union City police officer how long
cocaine stayed in a person's system; and (4) she voluntarily admitted herself into
an inpatient substance abuse rehabilitation facility because she was abusing
prescription medication.
Based on these uncontested facts and the nature of the disciplinary
infractions, the ALJ found the City presented sufficient competent evidence to
support its decision to terminate appellant's employment as a police officer. The
ALJ found: (1) appellant attempted to conceal the use of illicit drugs by a fellow
police officer; (2) Chief Molinari had reasonable suspicion to order appellant to
submit to a drug test; (3) appellant knowingly disobeyed Chief Molinari's order
to report to the Union City Police Department to submit to a drug test; and (4)
appellant knowingly, grossly negligently, or recklessly failed to secure her
loaded service weapon. Based on these findings, the ALJ concluded the City
A-3163-16T4 6 proved, by a preponderance of the evidence, that appellant was insubordinate,
N.J.A.C. 4A:2-2.3(a)(2), engaged in conduct unbecoming a public employee,
N.J.A.C. 4A:2-2.3(a)(6), and neglected her duty to secure her service weapon,
N.J.A.C. 4A:2-2.3(a)(7).
II
As an appellate court, we will overturn a State administrative agency's
decision only if it is arbitrary, capricious, or unreasonable. Henry v. Rahway
State Prison, 81 N.J. 571, 579-80 (1980). Our inquiry is limited to determining:
(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 (2007) (quoting Mazza v. Bd. of Trs., Police & Firemen's Ret. Sys., 143 N.J. 22, 25 (1995)).]
Finally, although we are not bound by an administrative agency's purely
legal determination, Francois v. Bd. of Trs., Pub. Emps. Ret. Sys., 415 N.J.
Super. 335, 348 (App. Div. 2010), we defer to the agency's interpretations of the
statutes and the implementing regulations it administers, unless such
A-3163-16T4 7 interpretation is "plainly unreasonable." In re Election Law Enf't Comm'n
Advisory Op. No. 01-2008, 201 N.J. 254, 260 (2010).
Here, the uncontested evidence supports the Commission's decision to
uphold the City's action terminating appellant's employment as a police officer.
Appellant attempted to conceal a fellow police officer's illicit drug use as well
as her own addiction to prescription medication. She knowingly disobeyed a
direct order from the Police Chief and failed to take basic measures to safeguard
her loaded service handgun. Appellant's belated attempts to address her
substance abuse problem were insubordinate and do not mitigate her pattern of
misconduct.
We have affirmed the termination of a police officer's employment for
infractions that went to the heart of the officer's ability to be trusted to function
appropriately in his or her position. Cosme v. E. Newark Twp. Comm., 304 N.J.
Super. 191, 206 (App. Div. 1997). Appellant's blatant disregard of the rules
governing her conduct goes to "the heart" of her ability to function as a police
officer. We discern no legal basis to disturb the Commission's decision
upholding the termination of appellant's employment as a police officer.
Affirmed.
A-3163-16T4 8