IN THE MATTER OF NEW JERSEY INSTITUTE OF TECHNOLOGYAND SELINA PEREZ(PUBLIC EMPLOYMENT RELATIONS COMMISSION)

• Court: New Jersey Superior Court Appellate Division
• Decided: July 27, 2017
• Docket: A-4716-15T3
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-4716-15T3

IN THE MATTER OF NEW JERSEY INSTITUTE OF TECHNOLOGY and SELINA PEREZ.

_______________________________________

Submitted July 13, 2017 – Decided July 27, 2017

Before Judges Yannotti and Haas.

On appeal from the New Jersey Public Employment Relations Commission, Agency Docket No. DA-2016-004.

Fusco & Macaluso Partners, LLC, attorneys for appellant Selina Perez (Shay S. Deshpande, on the brief).

Robin T. McMahon, General Counsel, New Jersey Public Employment Relations Commission attorney for respondent New Jersey Public Employment Relations Commission (Frank C. Kanther, Deputy General Counsel, on the brief).

Walsh Pizzi O'Reilly Falanga LLP, attorneys for respondent New Jersey Institute of Technology (M. Trevor Lyons, of counsel and on the brief; Caitlin Petry Cascino, on the brief). PER CURIAM

Selina Perez (Perez) appeals from a final determination of

the Director of Conciliation and Arbitration (Director), Public

Employment Relations Commission (PERC), denying Perez's request

for appointment of an arbitrator from PERC's special disciplinary

arbitration panel. We affirm.

This appeal arises from the following facts. In June 2014,

Perez began employment in the Department of Public Safety and

Security (Department) of the New Jersey Institute of Technology

(NJIT) as a Senior Security Officer, a non-commissioned position.

The Office and Professional Employees International Union, AFL-

CIO (OPEIU) represents persons who are employed as Senior Security

Officers.

On May 18, 2015, NJIT promoted Perez to the position of Police

Officer Intern. The Fraternal Order of Police, Lodge #93 (FOP) is

the recognized negotiating representative for NJIT's commissioned

police officers. Thereafter, effective October 21, 2015, NJIT

promoted Perez to the position of Police Officer. Under NJIT's

collective negotiations agreement (CNA) with the FOP, Perez had

probationary status as a Police Officer for one year, from the

date of her appointment to that position.

On March 28, 2016, Perez reported to dispatch that she

observed damage to the passenger side front door of her patrol

2 A-4716-15T3 vehicle. On April 1, 2016, Lieutenant Mark J. Cyr served Perez

with notice that a due process meeting would be held on April 7,

2016, regarding Perez's alleged involvement in a motor vehicle

accident on the evening of March 28, 2016. Perez appeared with her

union representative. Lieutenant Cyr was present, along with

Deputy Chief Charles Tighe and Sergeant Michael Villani.

At the meeting, Perez stated that on the evening of March 28,

2016, she responded with Sergeant Eric DiFrancesco and Officer

Dwayne Barton to a report that there were three juveniles with

weapons near Wellington Way. The officers arrested the three

juveniles, and Perez transported one of the arrested juveniles to

NJIT's police headquarters for processing.

Perez stated that Barton exited the parking deck and she

followed him in her police vehicle. While Perez was driving out

of the parking deck, she reached for her patrol bag. The bag fell

forward. Perez reached for it and then applied her brakes. She put

her vehicle in reverse and pulled into a parking space to fix her

bag. Perez got back in the vehicle and proceeded to her post.

According to Lieutenant Cyr's report, Perez repeatedly stated

that she had no recollection of hitting anything. He wrote,

however, that Perez had "vacillated between not being comfortable

admitting responsibility" and stating to DiFrancesco that she

could have "done it 100 [percent]."

3 A-4716-15T3 Perez stated that she did not recall hitting the guardrail,

but thought she may have hit the curb. Cyr stated that videotape

footage from surveillance cameras showed that Perez had attempted

to exit the parking deck and struck a guardrail, causing damage

to the front passenger side door of the vehicle.

Cyr stated that Perez was seen opening and closing the door

as if testing its operability. She did not appear to be attempting

to reach or control her patrol bag. He wrote that Perez stated

that she would take "100 [percent]" responsibility for the damage,

but she did not admit she caused it. She only remembered hitting

the guardrail after she saw the surveillance footage.

Cyr also wrote that Perez made a "cognitive choice" not to

give a definitive answer to the question, "Did you hit the

guardrail?" Cyr questioned Perez's integrity because she admitted

to causing the damage and reluctantly took responsibility only

after she was confronted with the video footage.

Cyr decided that Perez's employment should be terminated

because she failed to "honor [her] responsibilities as a law

enforcement officer and display resolute honesty" in violation of

the Department's applicable policy. Cyr also found that Perez

violated the Department's policy on operating official vehicles

because she failed to operate her patrol car in a "careful and

4 A-4716-15T3 prudent" manner. NJIT issued a letter to Perez informing her that

she was terminated as of April 26, 2016.

On April 27, 2016, Perez filed a request with PERC for the

appointment of an arbitrator from PERC's Special Disciplinary

Arbitration Panel. NJIT objected to the request on the ground that

Perez was not a permanent law enforcement officer. NJIT therefore

argued that her termination was not subject to the special

disciplinary arbitration provisions in N.J.S.A. 40A:14-209.

In support of its objection, NJIT submitted a certification

from Annie Crawford, Assistant Vice President for Human Resources

at NJIT, which set forth Perez's employment history and stated

that at the time she was fired, Perez was a probationary law

enforcement officer. Perez submitted a response supporting her

request for the appointment of an arbitrator, with documentation.

Perez asserted that at the time she was terminated, she had

attained permanent employee status at NJIT.

The Director issued a letter opinion dated May 23, 2016,

denying Perez's request. The Director stated that the special

arbitration provisions only apply to persons who are employed as

"permanent full-time" law enforcement officers. N.J.S.A. 40A:14-

200. The Director determined that because Perez was a probationary

police officer, she was not permanent in that position.

5 A-4716-15T3 The Director also noted that the CNA between NJIT and the FOP

provides that probationary employees are not entitled to use the

grievance process in the agreement. The Director concluded that,

under the circumstances, PERC did not have jurisdiction to appoint

an arbitrator and dismissed the matter for lack of jurisdiction.

This appeal followed.

On appeal, Perez argues: (1) PERC's decision should be

reversed because the denial of arbitration violates her due process

rights; (2) she was not on "probationary" status because she had

been employed at NJIT for more than one year; and (3) NJIT's

decision to terminate Perez should be reversed because the penalty

imposed was disproportionate in light of all of the circumstances.

Judicial review of a final decision of an administrative

agency is limited in scope. Circus Liquors, Inc. v. Governing Body

of Middletown Twp., 199 N.J. 1, 9 (2009) (citing In re Herrmann,

192 N.J. 19, 27 (2007); In re Carter, 191 N.J. 474, 482 (2007)).

When reviewing an agency's decision, we consider

(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.

6 A-4716-15T3 [Id. at 10 (quoting Mazza v. Bd. of Trs., 143 N.J. 22, 25 (1995).]

When considering these criteria, a reviewing court "must be mindful

of, and deferential to, the agency's 'expertise and superior

knowledge of a particular field.'" Ibid. (quoting Greenwood v.

State Police Training Ctr., 127 N.J. 500, 513 (1992)).

PERC has "broad authority and wide discretion" in the "highly

specialized area" of the relations between an employer and employee

"in the public sector." In re Hunterdon Cty. Bd. of Chosen

Freeholders, 116 N.J. 322, 328 (1989). Therefore, PERC decisions

will be upheld unless "clearly demonstrated to be arbitrary or

capricious." City of Jersey City v. Jersey Police Benevolent Ass'n,

154 N.J. 555, 568 (1998) (citing In re Hunterdon Cty. Bd. of Chosen

Freeholders, supra, 116 N.J. at 329).

In this case, the Director found that PERC did not have

jurisdiction to appoint a special disciplinary arbitrator to

review Perez's challenge to her termination. N.J.S.A. 40A:14-

209(a) provides in pertinent part that when a "law enforcement

agency" suspends "a law enforcement officer" without pay and

thereafter seeks to terminate the officer's employment, the

officer may submit an appeal to PERC "for arbitration conducted

in accordance with" N.J.S.A. 40A:14-210. The term "law enforcement

officer" is defined to mean

7 A-4716-15T3 any person who is employed as a permanent full-time member of any State, county, or municipal law enforcement agency, department, or division of those governments who is statutorily empowered to act for the detection, investigation, arrest, conviction, detention, or rehabilitation of persons violating the criminal laws of this State.

[N.J.S.A. 40A:14-200.]

It is undisputed that on May 18, 2015, NJIT appointed Perez

to the position of Police Officer Intern. On October 21, 2015,

NJIT later appointed Perez to the position of Police Officer. The

appointment took effect on October 21, 2015, after Perez completed

training at the Police Academy.

Article IX(A) of the CNA states, "All officers shall be

considered as probationary officers for one (1) year from the date

of appointment as an Institutional Officer." Thus, Perez was a

probationary police officer for one year after the date of her

appointment on October 21, 2015.

On appeal, Perez argues that the Director erred by finding

that she was a probationary employee when she was terminated.

Perez notes that she became employed by NJIT as a Security Officer

in June 2014. She contends she achieved permanent employee status

because she worked as an "officer" longer than one year. We

disagree.

8 A-4716-15T3 Perez has not presented any evidence showing that a Security

Officer is a commissioned Police Officer. Indeed, it is undisputed

that the position of Security Officer is not covered by the CNA

between NJIT and the FOP, which NJIT recognized as the negotiating

agent for its commissioned Police Officers. Under the NJIT-FOP

CNA, Perez had the status of a probationary employee, not the

status of a permanent, full-time commissioned Police Officer.

We therefore conclude that there is sufficient credible

evidence in the record to support the Director's determination

that Perez was not entitled to the appointment of a special

disciplinary arbitrator to consider Perez's challenge to her

termination. The Director's decision is consistent with N.J.S.A.

40A:14-210, the definition of the term "law enforcement officer"

in N.J.S.A. 40A:14-200, and the NJIT-FOP CNA. The Director

correctly determined that because Perez was not a permanent, full-

time police officer, she was not entitled to avail herself of the

arbitration procedures in N.J.S.A. 40A:14-209(a).

Perez argues, however, that she is entitled to the appointment

of an arbitrator as a matter of due process. Again, we disagree.

As we have explained, Perez was a probationary, at-will employee

and, as such, she had no recognized property interest in the

position of Police Officer that is protected by the Due Process

Clause. Thomas v. Town of Hammonton, 351 F.3d 108, 113 (3d Cir.

9 A-4716-15T3 2003); see also Filgueiras v. Newark Public Schools, 426 N.J.

Super. 449, 469 (App. Div.) (noting that an employee hired at will

does not have a constitutionally-protected right in employment)

(citation omitted), certif. denied, 212 N.J. 460 (2012).

In this regard, we note that Article VII of the NJIT-FOP CNA

governs the investigation, due process, discipline, and the

relevant grievance procedure for NJIT's commissioned police

officers. Article VII expressly states that it does "not apply to

probationary Officers."

Therefore, Perez, as a probationary officer, held her

position as a commissioned Police Officer at the will of NJIT, and

she lacked a recognized property interest in that position for

purposes of the Due Process Clause of the Fourteenth Amendment.

Accordingly, we reject Perez's contention that she had a

constitutional right to the appointment of an arbitrator.

Perez further argues that NJIT's decision to terminate her

employment is arbitrary, capricious or unreasonable. We note that

the Director only decided that PERC did not have jurisdiction to

appoint an arbitrator in this matter. The Director did not address

the merits of Perez's claim that she had been wrongfully

terminated. Thus, Perez's challenge to NJIT's decision is beyond

the scope of this appeal.

10 A-4716-15T3 Assuming, however, that Perez could take a direct appeal to

this court from NJIT's decision to terminate her employment, we

conclude that Perez has not shown that her termination was in any

sense arbitrary, capricious or unreasonable. Perez also has not

shown that the penalty imposed was "so disproportionate to the

offense, in the light of all the circumstances, as to be shocking

to one's sense of fairness." In re Polk License Revocation, 90

N.J. 550, 578 (1982) (quoting Pell v. Bd. of Educ., Etc. 34 N.Y.

2d 222, 233 (1974)).

On appeal, Perez argues that NJIT treated her unfairly and

fired her for what she characterizes as a "minor traffic accident."

Perez claims that on the day of the accident, she may have been

anxious because she had just arrested three armed juveniles. She

asserts that she did not misrepresent herself or fabricate the

events that led to the damage to the vehicle. Perez says she merely

said she could not be fully certain she caused the damage.

Perez contends that NJIT acted arbitrarily and capriciously

in terminating her employment because it failed to consider all

of the mitigating factors and imposed a penalty that is

disproportionate to her violations of Department policies. We have

carefully considered Perez's arguments in light of the record and

the applicable law, and conclude that Perez's arguments lack

11 A-4716-15T3 sufficient merit to warrant discussion in this opinion. R. 2:11-

3(e)(1)(E).

Affirmed.

12 A-4716-15T3