IN THE MATTER OF JUSTINE BRANHAM, CITY OF NEWARK(CIVIL SERVICE COMMISSION)

NOT FOR PUBLICATION WITHOUT THE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-1791-15T4

IN THE MATTER OF
JUSTINE BRANHAM, CITY
OF NEWARK.
—————————————————————————

Submitted September 12, 2017 – Decided September 28, 2017

Before Judges Hoffman and Gilson.

On appeal from the New Jersey Civil Service
Commission, Docket No. 2011-312.

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

Kenyatta Stewart, Acting 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

Appellant Justine Branham, an officer with Newark Police

Department (NPD), appeals from the December 18, 2015 final agency

decision of the Civil Service Commission (Commission), dismissing

her appeal of a six-day suspension from work. The Commission
concluded Branham released her right to pursue the administrative

appeal as part of a settlement of a civil discrimination suit she

had filed against the City of Newark (City). We affirm.

I.

Branham's six-day suspension resulted from an incident that

occurred on May 17, 2010. Following the incident, the NPD deputy

director charged Branham with violating department rules and

regulations, alleging insubordination, failure to take

responsibility for her own actions, and failure to obey orders.

Branham appealed her suspension to the Commission, which

referred the case to the Office of Administrative Law (OAL).

Approximately ten months after Branham appealed her suspension to

the Commission, she filed a discrimination suit in the Law

Division; her complaint included two paragraphs specifically

referencing her six-day suspension. At Branham's request, the OAL

stayed its proceedings pending the outcome of the civil suit.

On November 11, 2013, Branham settled her civil suit for a

sum of money, signing a broadly-worded release (the Release),1

1
The first paragraph of the Release states, in pertinent part:

I release and give up any and all claims and
rights which I may have against you. This
Releases all claims, including those of which
I am not aware and those not mentioned in this
Release. This Release applies to claims

2 A-1791-15T4
which made no exception for the pending appeal before the

Commission.

Following the settlement, the City moved for summary decision

in the OAL matter. The Administrative Law Judge (ALJ) held that

neither she nor the Commission could enforce the civil settlement

or remand the matter back to the civil court. Accordingly, the

ALJ dismissed the matter for lack of subject-matter jurisdiction.

Upon review, the Commission adopted the ALJ's recommendation

to dismiss the appeal, but based the dismissal on another ground.

The Commission held that it had the ability to determine whether

the terms of a duly executed settlement included the settlement

of the disciplinary appeal. The Commission then found that

Branham's civil settlement included a release of the claims at

issue in the administrative appeal. The Commission therefore

upheld the dismissal of the administrative appeal, which left the

six-day suspension in place. This appeal followed.

II.

Our review of actions by an administrative agency is limited.

In re Herrmann, 192 N.J. 19, 27 (2007). We "should not disturb

an administrative agency's determinations or findings unless there

is a clear showing that (1) the agency did not follow the law; (2)

resulting from anything which has happened up
to now.

3 A-1791-15T4
the decision was arbitrary, capricious, or unreasonable; or (3)

the decision was not supported by substantial evidence." In re

Application of Virtua-West Jersey Hosp. Voorhees for a Certificate

of Need, 194 N.J. 413, 422 (2008); Circus Liquors, Inc. v.

Governing Body of Middletown Twp., 199 N.J. 1, 9-10 (2009).

However, "because questions of law are the province of the judicial

branch, we are in no way bound by an agency's interpretation of a

statute or its determination of a strictly legal issue." Russo

v. Bd. of Trs., Police & Firemen's Ret. Sys., 206 N.J. 14, 27

(2011) (citations omitted). This court "appl[ies] de novo review

to an agency's interpretation of a statute or case law." Ibid.

As a matter of public policy, the courts of this State favor

the enforcement of settlement agreements. Brundage v. Estate of

Carambio, 195 N.J. 575, 601 (2008); see also Nolan v. Lee Ho, 120

N.J. 465, 472 (1990) (holding that settlements will usually be

honored "absent compelling circumstances"). This policy

acknowledges the self-evident "notion that the parties to a dispute

are in the best position to determine how to resolve a contested

matter in a way which is least disadvantageous to everyone."

Jennings v. Reed, 381 N.J. Super. 217, 226-27 (App. Div. 2005)

(quoting Peskin v. Peskin, 271 N.J. Super. 261, 275 (App. Div.),

certif. denied, 137 N.J. 165 (1994)); see also Dragon v. N.J.

Dep't of Envtl. Prot., 405 N.J. Super. 478, 491 (App. Div.)

4 A-1791-15T4
(recognizing general ability to settle administrative proceedings)

certif. denied, 199 N.J. 517 (2009). "Consequently, courts 'strain

to give effect to the terms of a settlement wherever possible.'"

Jennings, supra, 381 N.J. Super. at 227 (quoting Dep't of Pub.

Advocate v. N.J. Bd. of Pub. Utils., 206 N.J. Super. 523, 528

(App. Div. 1985)).

Once the parties agree on the essential terms "and manifest

an intention to be bound by those terms, they have created an

enforceable contract." Weichert Co. Realtors v. Ryan, 128 N.J.

427, 435 (1992). "An agreement to settle a lawsuit is a contract

which, like all contracts, may be freely entered into and which a

court, absent a demonstration of 'fraud or other compelling

circumstances,' should honor and enforce as it does other

contracts." Pascarella v. Bruck, 190 N.J. Super. 118, 124-25

(App. Div.) (quoting Honeywell v. Bubb, 130 N.J. Super. 130, 136

(App. Div. 1974)), certif. denied, 94 N.J. 600 (1983). To undo a

settlement agreement, there must be "clear and convincing

evidence" warranting such action. De Caro v. De Caro, 13 N.J. 36,

42 (1953).

Branham makes three arguments. First, she contends that the

administrative appeal is not a claim or right within the meaning

of the release in the civil settlement. Second, she claims that

the disciplinary administrative appeal is not barred by collateral

5 A-1791-15T4
estoppel. Finally, she contends that she could not have settled

her administrative matter without the "consent" of her counsel in

the administrative matter. We reject these arguments and conclude

they lack sufficient merit to warrant discussion in a written

opinion. R. 2:11-3(e)(1)(E). We add the following comments.

Our plenary review of the Release confirms the plain intention

of the parties to resolve all of Branham's claims, without

exception. There is nothing ambiguous about the language selected

by the parties to memorialize their agreement.

Furthermore, the circumstances surrounding the execution of

the Release, see N.J.S.A. 52:14B-9(d) ("[u]nless precluded by law,

informal disposition may be made of any contested case by

stipulation, agreed settlement, or consent order"), confirm that

Branham released and gave up "any and all claims and rights" which

she had against the City. The parties reached the settlement at

the courthouse, with the benefit of counsel; both attorneys

questioned Branham in open court, confirming that the parties had

reached "a full and final settlement." The Commission properly

enforced the Release in the absence of any proof that it was the

product of fraud, overreaching, or unconscionability.

The Commission, like a court, cannot rewrite contracts to

favor a party, for the purpose of giving that party a better

bargain. Relief is not available merely because enforcement of

6 A-1791-15T4
the contract causes oppression, improvidence, or because it

produces hardship to one of the parties. Brunswick Hills Racquet

Club, Inc. v. Route 18 Shopping Ctr. Assocs., 182 N.J. 210, 223

(2005). Neither an agency nor a court can "'abrogate the terms

of a contract' unless there is a settled equitable principle, such

as fraud, mistake, or accident, allowing for such intervention."

Id. at 224 (quoting Dunkin' Donuts of America, Inc. v. Middletown

Donut Corp., 100 N.J. 166, 183 (1985)). The record is bereft of

any such evidence.

Affirmed.

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