NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-0894-22
IN THE MATTER OF LANCE BENNETTE, DEPARTMENT OF TRANSPORTATION. ___________________________
Submitted April 16, 2024 – Decided May 1, 2024
Before Judges Smith and Perez Friscia.
On appeal from the New Jersey Civil Service Commission, Docket No. 2021-1628.
Destribats Campbell Staub & Schroth, LLC, attorneys for appellant Lance Bennette (Raymond C. Staub, on the briefs).
Matthew J. Platkin, Attorney General, attorney for respondent New Jersey Department of Transportation (Sookie Bae-Park, Assistant Attorney General, of counsel; Dennis J. Mikolay II, Deputy Attorney General, on the brief).
Matthew J. Platkin, Attorney General, attorney for respondent New Jersey Civil Service Commission (Brian D. Ragunan, Deputy Attorney General, on the statement in lieu of brief).
PER CURIAM Lance Bennette appeals from the October 12, 2022 final administrative
decision (FAD) of the New Jersey Civil Service Commission (Commission)
upholding the New Jersey Department of Transportation's (NJDOT) major
disciplinary action of a six-working day suspension and payment of restitution
for violations of N.J.S.A. 4A:2-2.3. We affirm.
I.
Bennette was a construction and maintenance technician for the NJDOT,
which required a valid driver's license. As a technician, he was entitled to
submit work travel expense invoices to the NJDOT for reimbursement of
eligible vehicle mileage accrued. The invoices required a signed certification
stating "I certify that the above expenses are correct in all respects. . . . I also
CERTIFY that on the date(s) when the above items of expense were incurred,
when using my personal vehicle, I possessed a valid driver['s] license."
In accordance with the NJDOT's "policy/procedure" manual, an employee
was required to "[i]mmediately inform [his or her] supervisor of driver's license
suspension." Further, "[d]isciplinary action must be requested for an employee
who fail[ed] to notify his/her supervisor of the loss of driving privileges."
On February 7, 2020, the New Jersey Motor Vehicle Commission (MVC)
notified Bennette his driving and registration privileges were scheduled for
A-0894-22 2 suspension on March 2 because he "failed to present acceptable proof of his
legal name, date of birth, valid address, social security number, [and] legal
presence in this country." The MVC previously issued a suspension notice on
November 20, 2019, notifying Bennette his "New Jersey driving and registration
privileges [we]re scheduled to be suspended as of [December 14, 2019]
indefinitely." In December 2019, Bennette had provided proof of his birth
certificate, social security card, and residence to the MVC in person, obtaining
a valid license. After receiving the February 2020 notice of suspension,
Bennette's attorney, by letter dated February 24, 2020, requested a hearing and
a stay of the scheduled suspension. Three days later, the attorney additionally
requested Bennette's "[identification] [s]uspension" hearing to occur on the
same date as Bennette's "passenger endorsement" suspension hearing.
On March 2, 2020, the MVC advised a hearing was scheduled on April 14
but did not stay the March 2 suspension. On March 13, the MVC advised
Bennette his basic driving privileges: were "indefinitely" suspended as of
March 2; could be restored "with acceptable proof"; and reinstatement required
a "restoration fee." On June 16, Bennette paid the restoration fee. On June 22,
Bennette emailed the MVC for assistance with his "[s]uspension/[r]estoration
issues." His driving privileges remained suspended from March 2 until July 12.
A-0894-22 3 Bennette failed to advise his supervisor of his license suspension and
continued driving his vehicle for work. Between March and July 2020, he
certified he possessed a valid driver's license in multiple travel expense invoices
for reimbursement. In July, the NJDOT's routine audit of employees' driving
privileges revealed Bennette's suspension. During the NJDOT's investigation
into Bennette's invoices, Bennette admitted to investigator Brian Harshman he
was aware of the suspension but believed it was in error.
On March 23, 2021, Bennette was served with a preliminary notice of
disciplinary action seeking a six-working day suspension for violating the
"NJDOT Guidelines for Employee Conduct and Discipline." Specifically,
Bennette was charged with: failure to report the suspension of driving
privileges, N.J.A.C. 4A:2-2.3(a)(12); falsification, N.J.A.C. 4A:2-2.3(a)(12);
and conduct unbecoming of a public employee, N.J.A.C. 4A:2-2.3(a)(6). He did
not request an internal disciplinary hearing. On April 15, 2021, in its final notice
of disciplinary action, the NJDOT issued a six-working day suspension
beginning on May 14, 2021. Additionally, the NJDOT required $1,307.95 in
restitution for the invoices paid. After Bennette challenged the final notice, the
action was transferred to the Office of Administrative Law.
A-0894-22 4 On September 12, 2022, after a two-day hearing during which five
witnesses testified, an Administrative Law Judge (ALJ) issued a twenty-five-
page initial decision upholding the suspension. The ALJ found Bennette's
testimony that he was unaware of his license suspension in March 2020
inconsistent and lacked credibility, and he knew "that his license was
suspended." Next, the ALJ found credible Harshman's testimony that Bennette
admitted knowledge of the March 2020 order of suspension. She found the
NJDOT had proven by a preponderance of the evidence that Bennette: failed to
report his driver's license suspension; falsified travel expense invoices by
certifying to possessing a valid driver's license; and engaged in conduct
unbecoming of a public employee.
In considering the NJDOT penalty and Bennette's credibility, the ALJ
questioned why Bennette did not report his license suspension to his supervisor
if he had first learned about it in June 2020. Further, in concluding the
disciplinary actions were appropriate, the ALJ found Bennette's lack of candor
was "an egregious aggravating factor." The Commission then issued an FAD
adopting the ALJ's findings of fact and conclusions of law and dismissing
Bennette's appeal.
A-0894-22 5 Before us, Bennette argues the Commission erred because it failed to:
weigh the COVID-19-related MVC closures and the impact on his suspension;
and acknowledge counsel's correspondence to the MVC requesting a stay of the
suspension.
II.
Our scope of review of a FAD is limited. In re M.M., 463 N.J. Super. 128,
136 (App. Div. 2020); see also Russo v. Bd. of Trs., Police & Firemen's Ret.
Sys., 206 N.J. 14, 27 (2011). An appellate court may only reverse an agency's
decision where it finds that the decision is "arbitrary, capricious, or unreasonable
or . . . not supported by substantial credible evidence in the record as a whole."
See Azzaro v. Bd. of Educ. of Trenton, 477 N.J. Super. 427, 436 (App.
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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 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-0894-22
IN THE MATTER OF LANCE BENNETTE, DEPARTMENT OF TRANSPORTATION. ___________________________
Submitted April 16, 2024 – Decided May 1, 2024
Before Judges Smith and Perez Friscia.
On appeal from the New Jersey Civil Service Commission, Docket No. 2021-1628.
Destribats Campbell Staub & Schroth, LLC, attorneys for appellant Lance Bennette (Raymond C. Staub, on the briefs).
Matthew J. Platkin, Attorney General, attorney for respondent New Jersey Department of Transportation (Sookie Bae-Park, Assistant Attorney General, of counsel; Dennis J. Mikolay II, Deputy Attorney General, on the brief).
Matthew J. Platkin, Attorney General, attorney for respondent New Jersey Civil Service Commission (Brian D. Ragunan, Deputy Attorney General, on the statement in lieu of brief).
PER CURIAM Lance Bennette appeals from the October 12, 2022 final administrative
decision (FAD) of the New Jersey Civil Service Commission (Commission)
upholding the New Jersey Department of Transportation's (NJDOT) major
disciplinary action of a six-working day suspension and payment of restitution
for violations of N.J.S.A. 4A:2-2.3. We affirm.
I.
Bennette was a construction and maintenance technician for the NJDOT,
which required a valid driver's license. As a technician, he was entitled to
submit work travel expense invoices to the NJDOT for reimbursement of
eligible vehicle mileage accrued. The invoices required a signed certification
stating "I certify that the above expenses are correct in all respects. . . . I also
CERTIFY that on the date(s) when the above items of expense were incurred,
when using my personal vehicle, I possessed a valid driver['s] license."
In accordance with the NJDOT's "policy/procedure" manual, an employee
was required to "[i]mmediately inform [his or her] supervisor of driver's license
suspension." Further, "[d]isciplinary action must be requested for an employee
who fail[ed] to notify his/her supervisor of the loss of driving privileges."
On February 7, 2020, the New Jersey Motor Vehicle Commission (MVC)
notified Bennette his driving and registration privileges were scheduled for
A-0894-22 2 suspension on March 2 because he "failed to present acceptable proof of his
legal name, date of birth, valid address, social security number, [and] legal
presence in this country." The MVC previously issued a suspension notice on
November 20, 2019, notifying Bennette his "New Jersey driving and registration
privileges [we]re scheduled to be suspended as of [December 14, 2019]
indefinitely." In December 2019, Bennette had provided proof of his birth
certificate, social security card, and residence to the MVC in person, obtaining
a valid license. After receiving the February 2020 notice of suspension,
Bennette's attorney, by letter dated February 24, 2020, requested a hearing and
a stay of the scheduled suspension. Three days later, the attorney additionally
requested Bennette's "[identification] [s]uspension" hearing to occur on the
same date as Bennette's "passenger endorsement" suspension hearing.
On March 2, 2020, the MVC advised a hearing was scheduled on April 14
but did not stay the March 2 suspension. On March 13, the MVC advised
Bennette his basic driving privileges: were "indefinitely" suspended as of
March 2; could be restored "with acceptable proof"; and reinstatement required
a "restoration fee." On June 16, Bennette paid the restoration fee. On June 22,
Bennette emailed the MVC for assistance with his "[s]uspension/[r]estoration
issues." His driving privileges remained suspended from March 2 until July 12.
A-0894-22 3 Bennette failed to advise his supervisor of his license suspension and
continued driving his vehicle for work. Between March and July 2020, he
certified he possessed a valid driver's license in multiple travel expense invoices
for reimbursement. In July, the NJDOT's routine audit of employees' driving
privileges revealed Bennette's suspension. During the NJDOT's investigation
into Bennette's invoices, Bennette admitted to investigator Brian Harshman he
was aware of the suspension but believed it was in error.
On March 23, 2021, Bennette was served with a preliminary notice of
disciplinary action seeking a six-working day suspension for violating the
"NJDOT Guidelines for Employee Conduct and Discipline." Specifically,
Bennette was charged with: failure to report the suspension of driving
privileges, N.J.A.C. 4A:2-2.3(a)(12); falsification, N.J.A.C. 4A:2-2.3(a)(12);
and conduct unbecoming of a public employee, N.J.A.C. 4A:2-2.3(a)(6). He did
not request an internal disciplinary hearing. On April 15, 2021, in its final notice
of disciplinary action, the NJDOT issued a six-working day suspension
beginning on May 14, 2021. Additionally, the NJDOT required $1,307.95 in
restitution for the invoices paid. After Bennette challenged the final notice, the
action was transferred to the Office of Administrative Law.
A-0894-22 4 On September 12, 2022, after a two-day hearing during which five
witnesses testified, an Administrative Law Judge (ALJ) issued a twenty-five-
page initial decision upholding the suspension. The ALJ found Bennette's
testimony that he was unaware of his license suspension in March 2020
inconsistent and lacked credibility, and he knew "that his license was
suspended." Next, the ALJ found credible Harshman's testimony that Bennette
admitted knowledge of the March 2020 order of suspension. She found the
NJDOT had proven by a preponderance of the evidence that Bennette: failed to
report his driver's license suspension; falsified travel expense invoices by
certifying to possessing a valid driver's license; and engaged in conduct
unbecoming of a public employee.
In considering the NJDOT penalty and Bennette's credibility, the ALJ
questioned why Bennette did not report his license suspension to his supervisor
if he had first learned about it in June 2020. Further, in concluding the
disciplinary actions were appropriate, the ALJ found Bennette's lack of candor
was "an egregious aggravating factor." The Commission then issued an FAD
adopting the ALJ's findings of fact and conclusions of law and dismissing
Bennette's appeal.
A-0894-22 5 Before us, Bennette argues the Commission erred because it failed to:
weigh the COVID-19-related MVC closures and the impact on his suspension;
and acknowledge counsel's correspondence to the MVC requesting a stay of the
suspension.
II.
Our scope of review of a FAD is limited. In re M.M., 463 N.J. Super. 128,
136 (App. Div. 2020); see also Russo v. Bd. of Trs., Police & Firemen's Ret.
Sys., 206 N.J. 14, 27 (2011). An appellate court may only reverse an agency's
decision where it finds that the decision is "arbitrary, capricious, or unreasonable
or . . . not supported by substantial credible evidence in the record as a whole."
See Azzaro v. Bd. of Educ. of Trenton, 477 N.J. Super. 427, 436 (App. Div.
2023) (quoting G.D.M. v. Bd. of Educ. of the Ramapo Indian Hills Reg'l High
Sch. Dist., 427 N.J. Super. 246, 259-60 (App. Div. 2012)). "While we must
defer to the agency's expertise, we need not surrender to it." In re Thomas
Orban/Square Props., LLC, 461 N.J. Super. 57, 72 (App. Div. 2019) (quoting
N.J. Chapter of Nat'l Ass'n of Indus. & Off. Parks v. N.J. Dep't of Env't Prot. ,
241 N.J. Super. 145, 165 (App. Div. 1990)). The party challenging the FAD has
the burden to demonstrate grounds for reversal. See Lavezzi v. State, 219 N.J.
163, 171 (2014).
A-0894-22 6 In determining if an agency's decision is arbitrary, capricious or
unreasonable, we examine "(1) whether the agency's action violates express or
implied legislative policies," (2) whether there is substantial evidence in the
record to support the agency's decision, and (3) whether in applying the law to
the facts, the agency reached 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 In re Stallworth, 208
N.J. 182, 194 (2011)). We "afford[] a 'strong presumption of reasonableness' to
an administrative agency's exercise of its statutorily delegated responsibilities."
Lavezzi, 219 N.J. at 171 (quoting City of Newark v. Nat. Res. Council in the
Dep't of Env't Prot., 82 N.J. 530, 539 (1980)). "This is particularly true when
the issue under review is directed to the agency's special 'expertise and superior
knowledge of a particular field.'" Stallworth, 208 N.J. at 195 (quoting In re
Herrmann, 192 N.J. 19, 28 (2007)). We "may not substitute [our] own judgment
for the agency's even though [we] might have reached a different result." In re
Carter, 191 N.J. 474, 483 (2007) (quoting Greenwood v. State Police Training
Ctr., 127 N.J. 500, 513 (1992)). An appellate court does not automatically
accept an agency's interpretation of a statute or a regulation, and reviews strictly
A-0894-22 7 legal questions de novo. See Bowser v. Bd. of Trs., Police & Fireman's Ret.
Sys., 455 N.J. Super. 165, 170-71 (App. Div. 2018).
III.
We reject Bennette's argument that the COVID-19-related emergency
closure of the MVC "effectively caused his license and driving privileges to be
erroneously suspended," leading to his discipline. The record demonstrates the
MVC's February 7, 2020 letter noticed Bennett of the March 2, 2020 scheduled
suspension of his driving and registration privileges. Bennette specifically
retained counsel, who requested a hearing scheduled for April 14. On March
13, the MVC advised Bennette his basic driving privileges were "indefinitely"
suspended as of March 2. Notably, Bennette had no contraindication that a stay
or reinstatement of his privileges occurred. He had previous knowledge an issue
existed with his driving privileges because he received the November 2019
notice of his license suspension, which he addressed. It was incumbent on
Bennette as a public employee to report his driving privileges suspension
regardless of the COVID-19-related cancelation of his hearing due to the MVC's
closure.
Bennette's candid admission that he knew his license was suspended, but
believed it was in error, does not negate the violations. Notably, his June 22
A-0894-22 8 email to the MVC seeking to "figure out how to overturn a license suspension
that went out on Jan[uary] 2020 for an age verification" further demonstrates his
knowledge. Moreover, Bennette admitted to Harshman he was aware of the
suspension. We conclude that while the COVID-19 pandemic caused the MVC's
closure, clearly making restoration more difficult, it did not obviate Bennette's
requirement to report his license suspension to his superior, maintain accuracy
in his certifications, and demonstrate conduct becoming of a public employee.
The Commission's decision, which accepted and adopted the ALJ's
determination to uphold Bennette's violations and the penalties, is sufficiently
supported by the record and consistent with the applicable law.
We are unpersuaded by Bennette's argument that the Commission did not
consider his counsel's correspondence with the MVC. In adopting the ALJ's
initial decision, the Commission determined counsel had sent two letters
requesting a hearing and in one requested a stay. We discern no error in the
Commission's decision to accord no further weight to counsel's letters, as they
were immaterial to the determination of Bennette's charges under N.J.A.C.
4A:2-2.3. The record amply supports Bennette's knowledge of his driver's
license suspension, failure to report the suspension, wrongful submission of
certified invoices attesting to a valid license, and unbecoming conduct of a
A-0894-22 9 public employee. Even accepting his belief that the suspension was in error,
Bennette was required to follow the NJDOT reporting requirements.
To the extent that we have not addressed Bennette's remaining arguments,
it is because they lack sufficient merit to be discussed in a written opinion. R.
2:11-3(e)(1)(E).
Affirmed.
A-0894-22 10