NOT FOR PUBLICATION WITHOUT THE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-3194-17T1
IN THE MATTER OF
KEVIN NEWSOM, NEW
JERSEY STATE PRISON.
__________________________
Argued May 1, 2019 – Decided July 30, 2019
Before Judges Accurso, Vernoia and Moynihan.
On appeal from the New Jersey Civil Service
Commission, Docket No. 2015-2238.
Donald C. Barbati argued the cause for appellant Kevin
Newsom (Crivelli & Barbati LLC, attorneys; Frank
Michael Crivelli and Donald C. Barbati, on the brief).
Steven Michael Gleeson, Deputy Attorney General,
argued the cause for respondent Civil Service
Commission (Gurbir S. Grewal, Attorney General,
attorney; Melissa Dutton Schaffer, Assistant Attorney
General, of counsel; Steven Michael Gleeson, on the
brief).
PER CURIAM
Appellant Kevin Newsom forwarded an order to show cause to the Civil
Service Commission (Commission) seeking to reopen an administrative law
judge's (ALJ) recommended decision to remove him from his position as a
corrections sergeant with the New Jersey State Prison for striking a handcuffed,
leg-shackled and restrained inmate in the face with an extended baton, 1 – a
decision deemed adopted by the Commission, N.J.S.A. 40A:14-204. Appellant
urged the Commission to vacate his removal and summarily reverse the adopted
decision and reinstate him or, alternatively, remand the matter for a new hearing
because he received exculpatory information subsequent to his receipt of the
Commission's decision.
He appeals from the final agency decision from a Commission director
who determined appellant's "request to be an untimely petition for
reconsideration, and given [appellant's] lack of pursuit of administrative
remedies, there is not a basis to reopen the final administrative decision in this
matter. Accordingly, no further action will be taken, and . . . the matter [was]
closed." Recognizing our limited scope of review, we determine the
Commission's decision to reject appellant's order to show cause on procedural
1
The ALJ concluded appellant violated N.J.A.C. 4A:2-2.3(a)(6), conduct
unbecoming a public employee, and N.J.A.C. 4A:2-2.3(a)(12), other sufficient
cause. N.J.A.C. 4A:2-2.3(a)(12) was formerly codified as N.J.A.C. 4A:2-
2.3(a)(11). 43 N.J.R. 2691(a) (Nov. 7, 2011); 44 N.J.R. 576(a) (Mar. 5, 2012).
A-3194-17T1
2
grounds without consideration of the merits was clearly arbitrary, capricious and
unreasonable, In re Herrmann, 192 N.J. 19, 27 (2007), and reverse.
In making this determination, 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.
[Id. at 28 (quoting Mazza v. Bd. of Trs., Police &
Firemen's Ret. Sys., 143 N.J. 22, 25 (1995)).]
We recognize the Commission's interpretation of statutes it is charged with
enforcing is entitled to our deference but we are not bound by its interpretation
of any strictly legal issue. Bowser v. Bd. of Trs., Police & Firemen's Ret. Sys.,
455 N.J. Super. 165, 170-71 (App. Div. 2018). "When an agency's decision is
manifestly mistaken . . . the interests of justice authorize a reviewing court to
shed its traditional deference to agency decisions." P.F. v. N.J. Div. of
Developmental Disabilities, 139 N.J. 522, 530 (1995).
The Commission based its rejection of appellant's order to show cause on
N.J.A.C. 4A:2-1.6 which in pertinent part provides:
A-3194-17T1
3
(a) Within 45 days of receipt of a decision, a party to
the appeal may petition the . . . Commission for
reconsideration.
(b) A petition for reconsideration shall be in writing
signed by the petitioner or his or her representative and
must show the following:
1. The new evidence or additional information not
presented at the original proceeding, which would
change the outcome and the reasons that such evidence
was not presented at the original proceeding; or
2. That a clear material error has occurred.
The Commission argues the order to show cause did not meet the regulation's
filing requirements.
By filing the order to show cause, appellant did not seek reconsideration
of the prior decision. He sought to reopen the hearing to allow consideration of
evidence he contends was previously unavailable. Thus the regulation is
inapplicable. The new evidence not presented at the original proceeding was a
fifteen-minute-long videotaped statement by the injured inmate who was
interviewed by New Jersey Department of Corrections (DOC) investigators two
days after he was assaulted. Appellant alleges only a portion of the videotape –
approximately ninety seconds long – was supplied to appellant prior to the
administrative disciplinary hearing and that the portion supplied did not contain
any exculpatory evidence. In the video, the inmate claimed a large, white officer
A-3194-17T1
4
with a bald head struck him with a baton. In that appellant is African-American,
that evidence is ostensibly exculpatory and, in fairness, the Commission should
have considered appellant's application to reopen the case. Its decision to deny
the order to show cause on procedural grounds related to the inapposite
regulation presents one of those "rare circumstances in which an agency action
is clearly inconsistent with its statutory mission or other state policy" requiring
our intervention. In re Musick, 143 N.J. 206, 216-17 (1996).
Our Supreme Court discerned "[t]he Legislature's intent not to impose the
procedural requirements of courts of law on hearings before administrative
agencies is evidenced in N.J.S.A. 52:14B-10, which provides for the liberal
admission of evidence in a contested case." In re Kallen, 92 N.J. 14, 25 (1983).
N.J.S.A. 52:14B-10(a)(1) provides in part: "Any party in a contested case may
present his case or defense by oral and documentary evidence, submit rebuttal
evidence and conduct such cross-examination as may be required, in the
discretion of the administrative law judge, for a full and true disclosure of the
facts." ALJs are less restricted than courts in the conduct of administrative
hearings but are, nonetheless, compelled to observe "principles of basic
fairness." Kallen, 92 N.J. at 25 (quoting Kelly v. Sterr, 62 N.J. 105, 107 (1973)).
Those fairness principles and the stated legislative mandate that "[a]ll relevant
A-3194-17T1
5
evidence is admissible, except as otherwise provided" by statute in an effort to
educe a "full and true disclosure of the facts," N.J.S.A. 52:14B-10(a)(1),
undergird our conclusion that the Commission abused its discretion when it
dismissed appellant's request to reopen the case to allow consideration of th e
video.
After the inmate became involved in an altercation, a number of
corrections officers responded and were involved in restraining the inmate. The
video proof, "[a] new development or new evidence relating to established facts
or a material misapprehension concerning an essential matter which is critical
to an agency determination[,] can constitute a reasonable basis for
reconsideration by the agency," as can "matters not previously considered." In
re Parole Application of Trantino, 89 N.J. 347, 365 (1982). The Court in
Trantino stated, "Considerations of individual fairness, repose and party reliance
are relevant in terms of whether an agency proceeding should be reopened."
Ibid.
We acknowledge, "[i]n the absence of some legislative restriction,
administrative agencies have the inherent power to reopen or to modify and to
rehear orders that have been entered." Burlington Cty. Evergreen Park Mental
Hosp. v. Cooper, 56 N.J. 579, 600 (1970). That power "may be invoked by
A-3194-17T1
6
administrative agencies to serve the ends of essential justice and the policy of
the law." Handlon v. Town of Belleville, 4 N.J. 99, 106-07 (1950). We conclude
appellant deserves an opportunity for the Commission to decide whether to
exercise that inherent power in light of the legislative goal of a "full and true
disclosure of the facts." N.J.S.A. 52:14B-10(a)(1).
We are mindful of the need for finality of administrative decisions. In re
Hill, 241 N.J. Super. 367, 371 (App. Div. 1990). But the Commission's decision
to reject on procedural grounds appellant's application to reopen the case in
order to present the video he claims was not heretofore available to him "is
clearly a mistaken one and so plainly unwarranted that the interests of justice
demand intervention and correction." Campbell v. N.J. Racing Comm'n, 169
N.J. 579, 587-88 (2001) (quoting Clowes v. Terminix Int'l, Inc., 109 N.J. 575,
588 (1988)). We, therefore, reverse the Commission's decision and remand this
matter for the Commission to consider appellant's application to reopen the
hearing. We express no opinion on the merits of the application.
Reversed and remanded. We do not retain jurisdiction.
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7