NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-4341-18T2
KIEN NHAN,
Plaintiff-Appellant,
v.
CITY OF ATLANTIC CITY,
Defendant-Respondent. ____________________________
Submitted January 21, 2020 – Decided April 17, 2020
Before Judges Messano, Ostrer and Susswein.
On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-0107-18.
Jacobs & Barbone, PA, attorneys for appellant (Louis Michael Barbone, of counsel and on the brief).
Blaney & Karavan, PC, attorneys for respondent (Frank Guaracini, III, of counsel and on the brief).
PER CURIAM
Appellant, Kien Nhan, is a former Atlantic City police sergeant who
appeals from the trial court's order upholding his termination of employment following a de novo hearing. Nhan is a compulsive gambler. He was originally
disciplined in 2013 for various infractions, including the accumulation of
substantial gambling debts that led to suicidal statements and discharging his
service weapon. In 2015, Nhan pled guilty to departmental violations pursuant
to a settlement agreement that called for a sixty-five-day suspension without
pay. He was never permitted to carry his service weapon after the suicidal
statements.
In 2016, the police department filed another disciplinary action based on
Nhan's lie to a therapist, Dr. Glass, during a follow up fitness-for-duty
evaluation. Nhan misrepresented that he had long since stopped gambling when
in fact he continued to gamble and had only reduced the extent of his gambling
activity. A forensic psychologist appointed by the police department, Dr.
Guller, examined Nhan and determined that he was unfit to serve as a police
officer.
The matter was referred for an evidentiary hearing after which the hearing
officer sustained the disciplinary charges and termination of employment.
Superior Court Judge James P. Savio conducted a de novo review of the record
and found that the disciplinary charges had been proved by a preponderance of
the evidence and that termination was appropriate.
A-4341-18T2 2 Nhan claims on appeal that (1) the 2015 settlement agreement precludes
the City from imposing further discipline based on prior events, (2) there was
insufficient evidence to support his conviction for untruthfulness when he
misrepresented his ongoing gambling activity during the fitness-for-duty
evaluation, and (3) there was insufficient evidence to support the determination
he is unfit to serve as a police officer. After reviewing the record in light of the
applicable legal principles, we affirm Nhan's termination of employment
substantially for the reasons set forth in Judge Savio's detailed and well-
reasoned written opinion.
I.
We presume the parties are familiar with the facts surrounding the
disciplinary infractions, which are thoroughly recounted in Judge Savio's ten -
page single-spaced opinion. We do not repeat them here.
II.
We begin our analysis by acknowledging the legal principles that apply.
First, in a disciplinary action, the truth of the charge must be proved by a
preponderance of the evidence. In re Phillips, 117 N.J. 567, 575 (1990) (citing
Atkinson v. Parsekian, 37 N.J. 143, 149 (1962)). N.J.S.A. 40A:14-150 governs
the review of disciplinary convictions in non-civil service municipalities such
A-4341-18T2 3 as Atlantic City. That statute provides that the Superior Court "shall hear the
cause de novo on the record below and may either affirm, reverse[,] or modify
such conviction." N.J.S.A. 40A:14-150. In a de novo proceeding, the Superior
Court does not apply an abuse of discretion standard to the findings made by the
hearing officer. Rather, the Law Division judge makes his or her own findings
of fact based on the record below. Phillips, 117 N.J. at 578.
Appellate courts play "a limited role in reviewing the de novo
proceeding." Id. at 579. An appellate court's "function on appeal is not to make
new factual findings but simply to decide whether there was adequate evidence
before the [Law Division] to justify its finding of guilt." Ibid. (quoting State v.
Johnson, 42 N.J. 146, 161 (1964)). The de novo findings should not be disturbed
unless we find the decision below was either (1) "arbitrary, capricious[,] or
unreasonable" or (2) that the decision was not supported "by substantial credible
evidence in the record as a whole." Ibid.
III.
We first address Nhan's claim the settlement agreement precludes the
imposition of discipline based on any prior events because the agreement
"specifically and unconditionally resolved all disputes between the parties that
had occurred from 2012 to 2015." We reject Nhan's contention.
A-4341-18T2 4 In his written opinion, Judge Savio noted:
On June 26, 2015[,] Nhan and the City of Atlantic City entered into a "settlement agreement and general release" related to the preliminary notice of disciplinary action dated November 27, 2013. Under the terms of the agreement, Nhan agreed to plead guilty to the four charges and accepted a suspension of six months. In paragraph two of the settlement agreement and general release, "employee, for himself, his heirs, executors, administrators, successors, and assigns hereby releases and forever discharges the City and its departments, clinical subdivisions . . . [.]" The release provides that it shall "apply to known, unknown, unsuspected and anticipated claims, liens, injuries and damages up to and including the date of the agreement."
Nhan relies on the last sentence of the quoted portion of the settlement
agreement for the proposition that the City "released" him from the
consequences of any pre-agreement actions. The sentence Nhan relies on,
however, cannot be read in isolation but rather must be interpreted in the context
of the section of the settlement agreement concerning release of claims. That
section speaks only to Nhan's release of the City's liability. The section reads
in its entirety:
2. Release of Claims. Employee, for himself, his heirs, executors, administrators, successors, and assigns hereby releases and forever discharges the City and its departments, political subdivisions, successors, and assigns, and their respective past, present and future representatives, council members, commissioners, officers, agents, employees, citizens, insurance
A-4341-18T2 5 carriers, successors, and assigns, and the estate(s) of theirs from any and all action, causes of action, lawsuits, claims, charges, debts, sums of money, accounts, covenants, contracts, demands of any nature whatsoever, whether in law or in equity, or with any individual, agency, organization, or governmental body, whether known or unknown, which Employee ever had, now has, or can, shall, or may have under any contract, tort or common law theory, and/or under any Federal, State, local statute, including but not limited 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 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-4341-18T2
KIEN NHAN,
Plaintiff-Appellant,
v.
CITY OF ATLANTIC CITY,
Defendant-Respondent. ____________________________
Submitted January 21, 2020 – Decided April 17, 2020
Before Judges Messano, Ostrer and Susswein.
On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-0107-18.
Jacobs & Barbone, PA, attorneys for appellant (Louis Michael Barbone, of counsel and on the brief).
Blaney & Karavan, PC, attorneys for respondent (Frank Guaracini, III, of counsel and on the brief).
PER CURIAM
Appellant, Kien Nhan, is a former Atlantic City police sergeant who
appeals from the trial court's order upholding his termination of employment following a de novo hearing. Nhan is a compulsive gambler. He was originally
disciplined in 2013 for various infractions, including the accumulation of
substantial gambling debts that led to suicidal statements and discharging his
service weapon. In 2015, Nhan pled guilty to departmental violations pursuant
to a settlement agreement that called for a sixty-five-day suspension without
pay. He was never permitted to carry his service weapon after the suicidal
statements.
In 2016, the police department filed another disciplinary action based on
Nhan's lie to a therapist, Dr. Glass, during a follow up fitness-for-duty
evaluation. Nhan misrepresented that he had long since stopped gambling when
in fact he continued to gamble and had only reduced the extent of his gambling
activity. A forensic psychologist appointed by the police department, Dr.
Guller, examined Nhan and determined that he was unfit to serve as a police
officer.
The matter was referred for an evidentiary hearing after which the hearing
officer sustained the disciplinary charges and termination of employment.
Superior Court Judge James P. Savio conducted a de novo review of the record
and found that the disciplinary charges had been proved by a preponderance of
the evidence and that termination was appropriate.
A-4341-18T2 2 Nhan claims on appeal that (1) the 2015 settlement agreement precludes
the City from imposing further discipline based on prior events, (2) there was
insufficient evidence to support his conviction for untruthfulness when he
misrepresented his ongoing gambling activity during the fitness-for-duty
evaluation, and (3) there was insufficient evidence to support the determination
he is unfit to serve as a police officer. After reviewing the record in light of the
applicable legal principles, we affirm Nhan's termination of employment
substantially for the reasons set forth in Judge Savio's detailed and well-
reasoned written opinion.
I.
We presume the parties are familiar with the facts surrounding the
disciplinary infractions, which are thoroughly recounted in Judge Savio's ten -
page single-spaced opinion. We do not repeat them here.
II.
We begin our analysis by acknowledging the legal principles that apply.
First, in a disciplinary action, the truth of the charge must be proved by a
preponderance of the evidence. In re Phillips, 117 N.J. 567, 575 (1990) (citing
Atkinson v. Parsekian, 37 N.J. 143, 149 (1962)). N.J.S.A. 40A:14-150 governs
the review of disciplinary convictions in non-civil service municipalities such
A-4341-18T2 3 as Atlantic City. That statute provides that the Superior Court "shall hear the
cause de novo on the record below and may either affirm, reverse[,] or modify
such conviction." N.J.S.A. 40A:14-150. In a de novo proceeding, the Superior
Court does not apply an abuse of discretion standard to the findings made by the
hearing officer. Rather, the Law Division judge makes his or her own findings
of fact based on the record below. Phillips, 117 N.J. at 578.
Appellate courts play "a limited role in reviewing the de novo
proceeding." Id. at 579. An appellate court's "function on appeal is not to make
new factual findings but simply to decide whether there was adequate evidence
before the [Law Division] to justify its finding of guilt." Ibid. (quoting State v.
Johnson, 42 N.J. 146, 161 (1964)). The de novo findings should not be disturbed
unless we find the decision below was either (1) "arbitrary, capricious[,] or
unreasonable" or (2) that the decision was not supported "by substantial credible
evidence in the record as a whole." Ibid.
III.
We first address Nhan's claim the settlement agreement precludes the
imposition of discipline based on any prior events because the agreement
"specifically and unconditionally resolved all disputes between the parties that
had occurred from 2012 to 2015." We reject Nhan's contention.
A-4341-18T2 4 In his written opinion, Judge Savio noted:
On June 26, 2015[,] Nhan and the City of Atlantic City entered into a "settlement agreement and general release" related to the preliminary notice of disciplinary action dated November 27, 2013. Under the terms of the agreement, Nhan agreed to plead guilty to the four charges and accepted a suspension of six months. In paragraph two of the settlement agreement and general release, "employee, for himself, his heirs, executors, administrators, successors, and assigns hereby releases and forever discharges the City and its departments, clinical subdivisions . . . [.]" The release provides that it shall "apply to known, unknown, unsuspected and anticipated claims, liens, injuries and damages up to and including the date of the agreement."
Nhan relies on the last sentence of the quoted portion of the settlement
agreement for the proposition that the City "released" him from the
consequences of any pre-agreement actions. The sentence Nhan relies on,
however, cannot be read in isolation but rather must be interpreted in the context
of the section of the settlement agreement concerning release of claims. That
section speaks only to Nhan's release of the City's liability. The section reads
in its entirety:
2. Release of Claims. Employee, for himself, his heirs, executors, administrators, successors, and assigns hereby releases and forever discharges the City and its departments, political subdivisions, successors, and assigns, and their respective past, present and future representatives, council members, commissioners, officers, agents, employees, citizens, insurance
A-4341-18T2 5 carriers, successors, and assigns, and the estate(s) of theirs from any and all action, causes of action, lawsuits, claims, charges, debts, sums of money, accounts, covenants, contracts, demands of any nature whatsoever, whether in law or in equity, or with any individual, agency, organization, or governmental body, whether known or unknown, which Employee ever had, now has, or can, shall, or may have under any contract, tort or common law theory, and/or under any Federal, State, local statute, including but not limited to . . . ; and any other Federal, State, or local equal employment opportunity laws, regulations, or ordinances; or under a theory of negligence; interference with contract/business advantage, fraud; intentional infliction of emotional distress; and/or any other duty or obligation of any kind or description. This release shall apply to all known, unknown, unsuspected, and anticipated claims, liens, injuries, and damages up to and including the day and date of this Agreement.
There is no comparable provision in this subsection, or in any other part
of the three-page settlement agreement, in which the City releases Nhan from
responsibility for his actions occurring before the agreement was executed. In
short, nothing in the text of the agreement precludes the City from considering
actions occurring before the settlement agreement. But even if we were to read
into the agreement a proviso whereby prior conduct could not be the basis for
future discipline, we believe Dr. Guller's psychological fitness evaluation,
conducted after the agreement was executed, provides an ample basis to support
Nhan's termination.
A-4341-18T2 6 IV.
Nhan next contends the de novo court "simply refused to analyze and
determine anew whether [he] committed an act of untruthfulness." Nhan further
argues that the evidence was insufficient to prove untruthfulness, claiming that
although he admitted he lied to Dr. Glass when he said he had stopped gambling,
that lie does not rise to the level of untruthfulness within the meaning of the
applicable police department rule. 1 We disagree.
The written opinion confirms that Judge Savio understood that the City
has the burden of proving the charges by a preponderance of the evidence. Judge
Savio also recognized the high standards that police officers meet. See, e.g.,
Phillips, 117 N.J. at 577 (opining that police officers are held to a high standard
of conduct). The court concluded that Nhan had "agreed to be truthful with
therapists to aid in their diagnosis and formulation of a plan for his return to
duty," and that Nhan "was untruthful when he responded to questions about
gambling posed by [Dr. Glass]."
1 Atlantic City Police Department Rule 3:5-7 reads: "Employees shall not knowingly lie, give misleading information, or falsify oral or written communications in any official report when it is reasonable to expect that the information may be relied upon because of the employee's affiliation with this department." A-4341-18T2 7 It bears noting that Judge Savio affirmed Nhan's conviction for this charge
after finding that Nhan's testimony at the hearing was "illogical," "incredible, "
and "the result of a willful lie proffered because Nhan would have this court
order his reinstatement as an Atlantic City police officer and he was willing to
say whatever he had to say to increase his chances of reinstatement."
We conclude that Judge Savio made his own credibility findings and did
not simply defer to the hearing officer. Furthermore, defendant's admitted lie to
Dr. Glass was, without question, material and substantial, especially when
viewed in the context of a follow up fitness-for-duty examination. Kahn's fitness
depended to a great extent on how he was addressing his gambling addiction and
whether he was resisting treatment. That addiction was directly associated with
his suicidal statements and misuse of his service firearm. Even if Nhan earnestly
believed he was no longer suicidal, it was incumbent upon him to be truthful
about his gambling activities during a fitness-for-duty psychological evaluation.
We note in this regard that petitioner's gambling addiction presents risks besides
depression, suicide, and misuse of a service firearm. His addiction also makes
him more vulnerable to extortion and bribery matters of substantial concern with
respect to the duties of a sworn police officer. We therefore reject any
suggestion that the lie he told to Dr. Glass was inconsequential.
A-4341-18T2 8 In sum, Judge Savio's ruling with respect to Nhan's untruthfulness is
supported by substantial credible evidence and was not arbitrary, capricious, or
unreasonable. Phillips, 117 N.J. at 579.
Finally, Nhan contends that Judge Savino uncritically "accepted" Dr.
Guller's opinion. This contention lacks sufficient merit to warrant discussion.
Rule 2:11-3(e)(1)(E). We add only that Nhan did not present expert testimony
to counter the opinion expressed by the City's expert.
Affirmed.
A-4341-18T2 9