NOT FOR PUBLICATION WITHOUT THE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
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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
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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.
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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.
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[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
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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.
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