STATE OF NEW JERSEY VS. AL QUAADIR GREEN(01-10-4345, ESSEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-0825-14T2

IN THE MATTER OF
BASEM ZAGHLOUL
CITY OF NEWARK
POLICE DEPARTMENT.

Submitted December 14, 2016 – Decided March 10, 2017

Before Judges Alvarez and Accurso.

On appeal from the Civil Service Commission,
Docket No. 2012-2210.

Fusco & Macaluso Partners, LLC, attorneys for
appellant Basem Zaghloul (Amie E. DiCola, on
the brief).

Willie L. Parker, Corporation Counsel,
attorney for respondent City of Newark
(Corinne E. Rivers, Assistant Corporation
Counsel, on the brief).

Christopher S. Porrino, Attorney General,
attorney for respondent Civil Service
Commission (Pamela N. Ullman, Deputy Attorney
General, on the statement in lieu of brief).

PER CURIAM

Basem Zaghloul, a Newark police officer, appeals from the

October 1, 2014 final decision of the Civil Service Commission

(Commission) imposing a ten-day suspension. We affirm.
 A preliminary notice of disciplinary action (PNDA) dated

October 24, 2011, charged Zaghloul with the following violations:

charge one, violations of Newark Police Department Rules and

Regulations, Chapter 3:1.1 and N.J.A.C. 4A:2-2.3(a)(6), conduct

unbecoming a public employee; charge two, insubordination in

violation of Newark Police Department Rules and Regulations,

Chapter 18:8 and N.J.A.C. 4A:2-2.3(a)(2); charge three, a

violation of Newark Police Department Rules and Regulations,

Chapter 5:4.1, obedience to orders; charge four, violation of

Newark Police Department Rules and Regulations, Chapter 5:1.2, use

of foul language; and charge five, violation of Newark Police

Department Rules and Regulations, Chapter 3:1.2-4, demonstration

of respect.

The charges arose from an October 12, 2011 incident when

Zaghloul stopped by his office, while on vacation, to drop off a

check for a fundraiser. Detective Stacey Pickett and Detective

Antonia Rosa happened to be in the midst of reviewing forms

Zaghloul had recently completed and were discussing errors he had

made. Zaghloul became angry when the women told him about their

concerns and, during the conversation which ensued, he referred

to Pickett as "baby" and "sunshine." When Pickett told Zaghloul

to address her as either "Stacey" or "Pickett," Zaghloul became

irate. The discussion rapidly deteriorated until he began to yell

2 A-0825-14T2
profanities at Pickett, telling her "I don't give an F about this

work. I don't give an F about you. F you."

Sergeant Beatrice Golden, the supervisor, entered Pickett's

office shortly after the confrontation began. The argument could

be heard in areas accessible to the public, not just to the police.

Pickett and Rosa testified that Zaghloul ignored Golden's order

when she told him to leave the building. On his way out, Zaghloul

either kicked or pulled a chair over onto the floor and went into

the deputy chief's office.

The final notice of disciplinary action (FNDA) imposed a ten-

day suspension on the charges. Zaghloul appealed, and the matter

was transmitted to the Office of Administrative Law (OAL) for a

hearing under the Administrative Procedure Act, N.J.S.A. 52:14B-1

to -15, and the Uniform Administrative Procedure Rules, N.J.A.C.

1:1-1.1 to -21.6.

At the hearing, a number of documents were introduced through

the testimony of Sergeant Julio Benavente. He conducted the

internal affairs investigation, including the taking of

statements. He said that Zaghloul had been reassigned to patrol

duty, and that the deputy chief had told him he was transferred

because of the incident.

Unfortunately, although the OAL hearing began on October 22,

2012, it did not resume until over a year later on November 18,

3 A-0825-14T2
2013. On that date, counsel for the City of Newark (City) stated

that she had noticed two additional witnesses, Deputy Chief Israel

Caraballo and Golden. Even though the ALJ waited for over an

hour, neither appeared.

Zaghloul's attorney then moved to dismiss the matter because

in his view "the City hasn't completed [its] case." The ALJ asked

Zaghloul's attorney if he planned to proffer Zaghloul as a witness,

and his attorney responded that "he should not be forced into

testifying . . . ." The attorney argued that it was unfair that

the State had not produced the two witnesses as they were

"crucial." The ALJ pointed out that he also had the opportunity

to subpoena them, and that even if Caraballo and Golden did not

appear, the City had the option of resting on the testimony of the

witnesses it had produced. Hence, the ALJ denied the motion to

dismiss. She also said there was no reason to continue the matter,

although Zaghloul's attorney had not requested a postponement.

The ALJ closed the record and directed that counsel simultaneously

submit their summations in writing.

The ALJ held that the appointing authority had met its burden

of proof by a preponderance of the credible evidence. In support

of the decision, she recounted Benavente's testimony regarding

Pickett and Rosa's incident reports, which included the initial

descriptions of the argument between Zaghloul and Pickett, and

4 A-0825-14T2
their description of Golden's order to Zaghloul to leave the

building, which he ignored.

The ALJ credited Rosa and Pickett's testimony that Zaghloul

began to yell profanities and wave his arms in an angry manner

when they began to talk to him about his work. Both witnesses

said Golden ordered Zaghloul to leave the building, and he instead

knocked a chair over and walked into the deputy chief's office.

The ALJ specifically rejected Zaghloul's argument that he did

not have the opportunity to "put in a defense" or to "testify"

because of Caraballo and Golden's failure to appear. No

interlocutory appeals were taken, nor any subpoenas served by

Zaghloul on any officers. He could have testified, but chose not

to. In considering the appropriate sanction, she noted that no

mitigating factors had been presented which warranted a reduction

in the penalty.

Zaghloul filed exceptions to the ALJ's decision. On October

1, 2014, the Commission "accepted and adopted the [f]indings of

[f]act and [c]onclusion."

On appeal, Zaghloul raises the following two points:

POINT ONE
THE COURT SHOULD REVERSE THE CIVIL SERVICE
COMMISSION'S FINAL ADMINISTRATIVE ACTION
BECAUSE [THE ALJ'S] DECISION WAS MANIFESTLY
MISTAKEN AND NOT SUPPORTED BY THE RECORD AS
[] ZAGHLOUL HAD A RIGHT TO RELY ON THE CITY
OF NEWARK'S SUBPOENAS, THE CITY OF NEWARK

5 A-0825-14T2
 WOULD NOT HAVE SUFFERED PREJUDICE IF THERE WAS
A SHORT ADJOURNMENT OF THE HEARING, AND [THE
ALJ'S] ACTIONS TO THE CONTRARY WERE ARBITRARY
AND CAPRICIOUS.

POINT TWO
THE COURT SHOULD REVERSE THE CIVIL SERVICE
COMMISSION'S FINAL ADMINISTRATIVE ACTION
BECAUSE THE PENALTY IMPOSED BY THE CIVIL
SERVICE COMMISSION WAS DISPROPORTIONATE IN
LIGHT OF ALL THE CIRCUMSTANCE[S] AS []
ZAGHLOUL WAS ALREADY DEMOTED AND TRANSFERRED
FOR HIS ACTIONS ON OCTOBER 12, 2011 WHEN HE
WAS ADMINISTRATIVELY CHARGED.

I.

Appellate courts have a "limited role" in reviewing

administrative agency decisions. In re Stallworth, 208 N.J. 182,

194 (2011). An agency's judgment may only be reversed if it was

"arbitrary, capricious, [] unreasonable, or [] not supported by

substantial credible evidence in the record as a whole." Ibid.

(second alteration in original) (quoting Henry v. Rahway State

Prison, 81 N.J. 571, 579-80 (1980)). "The application of those

principles is not limited to whether a violation warranting

discipline has been proven; this 'deferential standard applies to

the review of disciplinary sanctions as well.'" Id. at 195

(quoting In re Herrmann, 192 N.J. 19, 28 (2007)).

II.

Pickett and Rosa's testimony was straightforward. Zaghloul

lost his temper when told not to refer to Pickett by anything

6 A-0825-14T2
other than her name, and when Pickett and Rosa criticized his

work. He used foul language, engaged in threatening and

inappropriate behavior, including knocking over a chair as he left

the room and stormed into his superior's office, disregarding the

supervising officer's order to leave the building. Uncontroverted

credible evidence proved the charges.

The decision of the ALJ, adopted by the Commission, enjoys a

presumption of reasonableness. In light of the testimony, it was

not arbitrary, capricious, or unreasonable. It was supported by

substantial, credible evidence in the record as a whole. See

Stallworth, supra, 208 N.J. at 194.

We further note that on the last day of the hearing, counsel

did not request that the ALJ carry the matter so he might subpoena

Caraballo and Golden. Zaghloul had the option to issue his own

subpoenas for those witnesses if he viewed them as critical to his

defense and could have done so after the first day of the hearing.

Obviously, Zaghloul had the opportunity to testify, but proceeded

instead on the theory that the police department's proofs were

inadequate. That he now regrets the strategic choices he made

does not make the Commissioner's decision erroneous.

III.

Benavente mentioned that Zaghloul had been assigned to patrol

duty and that the deputy chief said it happened because of the

7 A-0825-14T2
incident. No evidence was introduced that the transfer was action

taken against him. Although hearsay is admissible in an OAL

proceeding, we know nothing about the particulars of the transfer.

See N.J.A.C. 1:1-15.5(b) ("Notwithstanding the admissibility of

hearsay evidence [in administrative proceedings] some legally

competent evidence must exist to support each ultimate finding of

fact . . ."). Without that information, Zaghloul's argument that

he has been punished twice for the same offense is untenable. The

details regarding his reassignment are simply unknown. He had

worked in the office where the incident occurred only a short

time, and we cannot speculate as to the conditions of that

assignment, or the actual circumstances surrounding his return to

patrol detail. The connection Zaghloul makes between the

reassignment and punishment lacks record support.

It is commonplace that a police officer is a "special kind

of public employee" who "represents law and order to the citizenry

and must present an image of personal integrity and dependability

in order to have the respect of the public." In re Carter, 191

N.J. 474, 486 (2007) (quoting Twp. of Moorestown v. Armstrong, 89

N.J. Super. 560, 566 (App. Div. 1965), certif. denied, 47 N.J. 80

(1966)). That high standard is one a police officer voluntarily

undertakes upon acceptance of his employment in the service of the

8 A-0825-14T2
public. In re Phillips, 117 N.J. 567, 577 (1990) (citing In re

Emmons, 63 N.J. Super. 136, 142 (App. Div. 1960)).

In disciplinary actions involving police officers, "courts

should take care not to substitute their own views of whether a

particular penalty is correct for those of the body charged with

making that decision." Carter, supra, 191 N.J. at 486.

Thus, we do not find fault with the Commission's decision

that the ten-day suspension was proper. In light of Zaghloul's

conduct on the day in question, the Commission's decision is not

arbitrary, unreasonable, or capricious.

Affirmed.

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