IN THE MATTER OF MUHAMMED OJIBARA, ETC. (NEW JERSEY CIVIL SERVICE COMMISSION)

• Court: New Jersey Superior Court Appellate Division
• Decided: January 9, 2020
• Docket: A-6013-17T3
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-6013-17T3

IN THE MATTER OF MUHAMMED OJIBARA FIRE FIGHTER (M1540T), IRVINGTON. ___________________________

Submitted December 18, 2019 – Decided January 9, 2020

Before Judges Gooden Brown and Mawla.

On appeal from the New Jersey Civil Service Commission, Docket No. 2018-2920.

Eldridge T. Hawkins, attorney for appellant Muhammed Ojibara.

Gurbir S. Grewal, Attorney General, attorney for respondent Civil Service Commission (Donna Sue Arons, Assistant Attorney General, of counsel; Beau Charles Wilson, Deputy Attorney General, on the brief).

PER CURIAM

Appellant Muhammed Ojibara was arrested on three outstanding warrants

when he appeared for an interview with the Township of Irvington for a fire

fighter position. As a result, the appointing authority removed Ojibara's name from the fire fighter eligibility list and on July 20, 2018, the Civil Service

Commission denied his appeal seeking restoration to the eligibility list. Ojibara

challenges the Commission's final agency decision. We affirm.

Ojibara's arrest occurred on September 14, 2016, under N.J.A.C. 16:87-

2.2(a)(1) on a 2007 Newark and a 2008 Jersey City warrant for failure or refusal

to pay prescribed fare and a 2008 Newark warrant for evading or attempting to

evade payment. Ojibara appealed from the appointing authority's decision to

remove him from the eligibility list, arguing he did not receive any of the

summonses and was not using public transportation at the time of the incidents.

He also claimed the Jersey City charge was dismissed and provided proof the

Newark charges were dismissed on September 26 and 28, 2016. He argued the

appointing authority's background check revealed no arrests or convictions and

provided a letter from the State Police to that effect.

In its written decision, the Commission concluded Ojibara's arrest

adversely related to his employment pursuant to N.J.S.A. 11A:4-11 and N.J.A.C.

4A:4-4.7(a)(4). The Commission reasoned the documentation Ojibara provided

relating to the dismissal of the warrants did not substantiate his claims because

the warrants were not dismissed until after his arrest. Additionally, the

Commission found Ojibara did not provide evidence to prove his claim—he was

A-6013-17T3 2 not involved in the underlying incidents which led to the issuance of the

warrants. The Commission concluded:

In this matter, [Ojibara's] adverse background information pertaining to the warrants and charges against him, as well as his arrest that occurred in September 2016[,] are relevant to the position sought, as such conduct is indicative of [his] exercise of poor judgment, which is not conducive to the performance of the duties of a [f]ire [f]ighter. . . . [T]he [public] expects [f]ire [f]ighters to present a personal background that exhibits respect for the law and the rules. Accordingly, the appointing authority has presented sufficient cause to remove [Ojibara's] name from the [f]ire [f]ighter Irvington eligibl[ity] list.

Where an agency, such as the Commission, issues a final decision, our

review is limited. See Lavezzi v. State, 219 N.J. 163, 172 (2014). We will not

disturb the final determination of an agency unless it was "'arbitrary, capricious

or unreasonable, or it is not supported by substantial credible evidence in the

record as a whole.'" Id. at 171 (quoting Prado v. State, 186 N.J. 413, 427

(2006)). This highly deferential standard reflects the Commission's expertise in

administering its legislative authority. In re Stallworth, 208 N.J. 182, 194-95

(2011).

Ojibara argues the Commission exceeded the authority the Legislature

granted it. He asserts the New Jersey Constitution prohibits the delegation of

legislative authority to an executive agency. He contends a discrimination

A-6013-17T3 3 complaint he filed in federal court supersedes the Commission's authority to

remove him from the eligibility list.

Ojibara's arguments relating to the Commission's authority are legally

unsupported. The Legislature expressly granted the Commission authority to

"promulgate . . . rules and regulations to effectuate the purposes of [the Civil

Service A]ct." N.J.S.A. 11A:4-1.2.

Furthermore, sufficient credible evidence on the record as a whole

supports the Commission's decision. R. 2:11-3(e)(1)(D). In matters involving

disqualification appeals, an appellant bears the burden of proof to show the

agency committed reversible error. N.J.A.C. 4A:4-6.3(b). N.J.A.C. 4A:4-6.1

states "[a] person may be denied . . . appointment [for]: . . . (9) Other sufficient

reasons." We stated the Commission "has historically construed this regulatio n

as allowing an appointing authority to consider an applicant's arrest in

determining his qualification for . . . fire fighter civil service positions." Tharpe

v. City of Newark Police Dep't, 261 N.J. Super. 401, 405 (App. Div. 1992). An

arrest may "'warrant the removal of an appellant's name particularly where the

position sought involves enforcement or administration of the law.'" In re J.B.,

386 N.J. Super. 512, 515 (App. Div. 2006) (quoting Tharpe, 261 N.J. Super. at

406).

A-6013-17T3 4 The Supreme Court has stated fire fighters work closely with police in an

"almost symbiotic relationship." Karins v. City of Atlantic City, 152 N.J. 532,

552 (1998). As a result, "[a]ny conduct jeopardizing [such] an excellen t

working relationship places at risk the citizens of the municipality as well as the

men and women of those departments who place their lives on the line on a daily

basis." Ibid.

Ojibara demonstrated poor judgment warranting his disqualification for

several reasons. He appeared for a job interview with three active warrants for

his arrest. The warrants were mailed to his return address, which rebutted his

claims he did not receive notice. He provided no support for the claim he did

not commit the infractions which led to the issuance of the warrants. The

dismissal of the warrants after his arrest did not cure these issues. For these

reasons, the Commission's decision was neither arbitrary, capricious nor

unreasonable, and was instead supported by the credible evidence.

Ojibara's remaining arguments are without sufficient merit to warrant

discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

A-6013-17T3 5