Kyle Forcinito v. Borough of Clayton

• Court: New Jersey Superior Court Appellate Division
• Decided: July 25, 2024
• Docket: A-0433-23
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-0433-23

KYLE FORCINITO,

Plaintiff-Appellant,

v.

BOROUGH OF CLAYTON,

Defendant-Respondent. _________________________

Submitted May 29, 2024 – Decided July 25, 2024

Before Judges Sumners and Rose.

Op appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Docket No. L-0512-23.

Hegge & Confusione, LLC, attorneys for appellant (Michael Confusione, of counsel and on the briefs).

Brown & Connery, LLP, attorneys for respondent (William F. Cook, and Arlette Leyba, on the brief).

PER CURIAM

Plaintiff Kyle Forcinito began his employment as a police officer with the

Borough of Clayton Police Department in 2015 and served admirably for almost eight years with no prior disciplinary charges and received commendations for

his service. However, after testing positive for steroids while competing in a

June 2022 United States Bodybuilding Federation (USBF) competition,

followed by another positive test for steroids conducted by the police

department's internal affairs unit four months later, Forcinito was placed on

administrative leave. He was later served with a Preliminary Notice of

Disciplinary Action recommending termination, based on conduct unbecoming

an officer by testing positive for banned substances; violating the Attorney

General's policy governing Drug Screening for Police Officers; and violating

departmental rules regarding high ethical standards by cheating in the

bodybuilding competition, failure to notify his supervisor he used medication

that would impair his senses, and disobeying drug laws.

A one-day departmental trial was conducted by an appointed hearing

officer. The Borough presented the testimony of Captain Lauren Franklin and

Chief Andrew Davis regarding the police department's investigation and

Forcinito's violation of department and Attorney General drug policy.

According to the Borough, it had no choice but to terminate Forcinito because

the Attorney General's drug policy "make[s] no exception for intent" and affords

"no discretion" as to his punishment. Forcinito testified that his ingestion of

A-0433-23 2 anabolic contaminants to compete in bodybuilding competitions was

unintentional. He had never "purchased any illegal steroids" because he feared

losing his father's support and his police officer position. If disciplined, he

requested he not be terminated.

The hearing officer issued a written decision sustaining the Borough's

charges and terminating Forcinito. The hearing officer determined Forcinito's

defense that he did not intentionally or knowingly ingest the banned substances

was not credible given his prior notice and awareness of the drug testing policies

governing his position. Adopting the hearing officer's conclusions, the Borough

thereafter served Forcinito a Final Notice of Disciplinary Action, terminating

his employment.

Forcinito subsequently filed a complaint in lieu of prerogative writs

requesting a trial de novo "dismiss[ing] the charges against him, or, in the

alternative, modifying the excessive and disproportionate penalty imposed upon

him." After hearing the parties' arguments, the judge reserved decision. The

judge subsequently issued an order and written decision dismissing the action

and denying Forcinito any relief.

Before us, Forcinito argues the hearing officer's findings are not

controlling and the judge failed to conduct independent findings of fact. He

A-0433-23 3 claims the judge erroneously relied on an unadmitted hearsay email by the non-

testifying Andrew L. Falzon, M.D, New Jersey Department of Health Chief State

Medical Examiner, to Captain Franklin stating that an anabolic substance

drostanonlone found in Forcinito's system must be taken via intramuscular

injection and not through a supplement. The judge agreed with the hearing

officer that the email undermined Forcinito's defense that he unknowingly

ingested tainted supplements. Forcinito contends because neither the hearing

officer nor the judge relied on "substantial credible evidence," discipline less

than termination is "warranted." Lastly, Forcinito contends the offense does not

warrant termination and progressive discipline should be considered to lessen

his penalty considering his "unblemished" employment. We find insufficient

merit in these arguments to warrant extensive discussion, R. 2:11-3(e)(1)(E),

and affirm, adding only the following brief comments.

Pursuant to N.J.S.A. 40A:14-150, actions like this are heard de novo to

ensure that a neutral, unbiased forum will review the disciplinary decision. In

re Disciplinary Procs. of Phillips, 117 N.J. 567, 580 (1990). While a trial judge

conducting a de novo review must give deference to the credibility

determinations drawn by the original tribunal, those initial findings are not

controlling. State v. Johnson, 42 N.J. 146, 157 (1964); Donofrio v. Haag Bros.,

A-0433-23 4 Inc., 10 N.J. Super. 258, 262 (App. Div. 1950). Instead, "careful sifting and

weighing of the evidence and independent findings of fact . . . are the hallmark

of a de novo trial." King v. Ryan, 262 N.J. Super. 401, 412 (App. Div. 1993).

We are amply satisfied that the judge faithfully adhered to these principles.

Our role is more limited than the trial judge's; we do not make new factual

findings but simply determine whether there was evidence to support the trial

judge's findings. Johnson, 42 N.J. at 161. Unless the decision under review is

"arbitrary, capricious or unreasonable" or "[un]supported by substantial credible

evidence in the record as a whole," a judge's de novo findings should not be

disturbed. See Henry v. Rahway State Prison, 81 N.J. 571, 580 (1980);

Campbell v. Dep't of Civ. Serv., 39 N.J. 556, 562 (1963). Our application of

this standard advocates against appellate intervention in the trial court's

decision.

The trial judge's well-reasoned decision reveals careful consideration and

evaluation of the hearing record. Even though Forcinito correctly points out the

judge considered Dr. Falzon's hearsay email, the judge's findings were not solely

based on this statement, and there is "a residuum of legally competent evidence"

supporting the judge's finding that Forcinito violated the department's and

Attorney General's drug policy. Ruroede v. Borough of Hasbrouck Heights, 214

A-0433-23 5 N.J. 338, 359-60 (2013) (citation omitted). There is no dispute that Forcinito

twice tested positive for banned substances that were not medically prescribed

or recommended, and for which he presented no expert testimony supporting his

claim that contaminated supplements caused his positive tests. In addition, the

prescription for intramuscular injections Forcinito provided to the department

was dated after he took the department's drug test.

As for Forcinito's discipline, the Attorney General's drug policy requires

a violator's termination and does not authorize a penalty short of termination.

The fact that Forcinito had an unblemished disciplinary record and served

admirably is of no significance under the violated policies.

Affirmed.

A-0433-23 6