IN THE MATTER OF JESSICA GARCIA, UNION CITY, DEPARTMENT OF PUBLIC SAFETY (NEW JERSEY CIVIL SERVICE COMMISSION)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any cou rt." 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-3163-16T4

IN THE MATTER OF JESSICA
GARCIA, UNION CITY,
DEPARTMENT OF PUBLIC
SAFETY.
____________________________

Argued September 26, 2018 – Decided June 19, 2019

Before Judges Fuentes, Accurso and Moynihan.

On appeal from the New Jersey Civil Service
Commission, Docket No. 2015-401.

Joseph William Tartaglia argued the cause for appellant
Jessica Garcia (Caruso Smith Picini, PC, Timothy
Richard Smith, of counsel; Steven J. Kaflowitz, on the
brief).

Juan Carlos Fernandez argued the cause for respondent
Union City Department of Public Safety (O'Toole
Scrivo Fernandez Weiner Van Lieu, LLC, attorneys;
Kenneth B. Goodman, of counsel and on the brief).

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

PER CURIAM
 Jessica Garcia appeals from the Final Decision of the Civil Service

Commission (Commission) upholding the decision of the City of Union City

(City) to terminate her employment as a police officer, effective July 1, 2014.

The Commission's decision was memorialized in a Final Administrative Action

dated February 27, 2017. After considering the record developed and the

evidence presented by the parties at an evidentiary hearing held before an

Administrative Law Judge (ALJ), the Commission adopted the ALJ's Initial

Decision in which she found the City proved, by a preponderance of the

evidence, that appellant: (1) engaged in conduct unbecoming a public employee,

N.J.A.C. 4A:2-2.3(a)(6); (2) was insubordinate by failing to follow and carry

out a lawful order of a superior officer, N.J.A.C. 4A:2-2.3(a)(2); and (3)

neglected her duty by failing to properly secure her service weapon, N.J.A.C.

4A:2-2.3(a)(7).

Appellant argues the Commission erred in adopting the ALJ's Initial

Decision because the record developed at the evidentiary hearing does not

contain competent evidence to support the City's action to terminate her

employment as a police officer. We reject this argument and affirm. We gather

the following facts from the record developed before the ALJ.

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 I

At all times relevant to this case, appellant resided in Monroe Township,

Middlesex County, with Corey Corbo, a fellow Union City police officer. On

the evening of June 11, 2014, Monroe Township Police Officer Jamey DiGrazio

responded to appellant's residence in response to an emergency first aid call of

an unconscious, unresponsive man who appeared to be in cardiac distress. By

the time DiGrazio arrived, paramedics were in appellant's bedroom providing

medical assistance to a man who was later identified as Corey Corbo. Appellant

was also present.

At the hearing before the ALJ, DiGrazio testified appellant told him Corbo

"had done a bump of cocaine about five days ago." She also told DiGrazio that

Corbo and she were Union City police officers and asked him not tell anyone

about this incident. DiGrazio denied appellant's request and informed the

paramedics of Corbo's alleged ingestion of cocaine and documented appellant's

improper request in his incident report. When questioned by appellant's counsel,

DiGrazio conceded he did not find any illicit drugs in the residence and did not

ask appellant how she knew Corbo had used cocaine. Monroe Township Police

Detective Sergeant Keith Saloom testified he directed DiGrazio to forward a

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copy of the incident report to the Internal Affairs Bureau of the Union City

Police Department.

Union City Police Chief Richard Molinari testified that in June 2014, he

was "informed" emergency medical staff had responded to appellant's residence

to provide medical aid to Corbo. According to Molinari, appellant was listed as

"the reporting party." Molinari also became aware that appellant told the

Monroe Township Police Department that Corbo had done a "bump of cocaine."

As part of Molinari's testimony, the ALJ admitted into evidence a copy of a

report prepared by the Monroe Township Police Department dated "around"

June 13, 2014. Molinari also testified that he "was informed" that Corbo was

hospitalized on June 12, 2014.

Based on the information available to him at the time, Molinari testified

he believed he had "reasonable suspicion" to order appellant to take a drug

screening test. However, before ordering appellant to submit to such a test, he

contacted the Hudson County Prosecutor's Office (HCPO) to confirm he had the

authority to proceed in this fashion. An Assistant Prosecutor with the HCPO

agreed with Molinari that under these circumstances, he had the authority as the

Chief of Police to order appellant to submit to a drug test. Molinari ordered

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Lieutenant Ramon Vasquez to contact appellant and order her to report to the

Union City Police Department.

Lieutenant Vasquez carried out Chief Molinari's instructions as ordered.

Chief Molinari testified appellant was aware of his order, understood she was

required to obey it, and made repeated assurances "she was on her way."

However, appellant did not report as ordered. Molinari also testified that

Captain Nichelle Luster contacted appellant and personally ordered her to report

for a drug test. Captain Luster later informed Chief Molinari that appellant had

"voluntarily" admitted herself into an inpatient substance abuse rehabilitation

facility.

Captain Luster testified appellant telephoned her at approximately seven

o'clock that evening, crying. Luster testified she made clear to appellant a

number of times that she was required to report and submit to a drug test.

According to Luster, appellant was very emotional and abruptly hung up the

phone crying. Appellant did not report nor take the drug test as ordered. On

June 14, 2014, Corbo's former wife called Captain Luster and informed her that

she had found a loaded handgun in a duffle bag on the floor of Corbo's hospital

room. In response to Chief Molinari's order, Luster recovered the handgun. The

serial number on the handgun established it was registered to appellant. The

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record shows appellant did not file a report disclosing that the weapon was

missing.

Appellant testified in her own defense. She denied placing her service

weapon in the duffle bag and did not know how it ended up there. However,

appellant admitted: (1) she was aware of Chief Molinari's order directing her to

report to the police station to submit to a drug test; (2) she knowingly did not

report as ordered; (3) she asked a fellow Union City police officer how long

cocaine stayed in a person's system; and (4) she voluntarily admitted herself into

an inpatient substance abuse rehabilitation facility because she was abusing

prescription medication.

Based on these uncontested facts and the nature of the disciplinary

infractions, the ALJ found the City presented sufficient competent evidence to

support its decision to terminate appellant's employment as a police officer. The

ALJ found: (1) appellant attempted to conceal the use of illicit drugs by a fellow

police officer; (2) Chief Molinari had reasonable suspicion to order appellant to

submit to a drug test; (3) appellant knowingly disobeyed Chief Molinari's order

to report to the Union City Police Department to submit to a drug test; and (4)

appellant knowingly, grossly negligently, or recklessly failed to secure her

loaded service weapon. Based on these findings, the ALJ concluded the City

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proved, by a preponderance of the evidence, that appellant was insubordinate,

N.J.A.C. 4A:2-2.3(a)(2), engaged in conduct unbecoming a public employee,

N.J.A.C. 4A:2-2.3(a)(6), and neglected her duty to secure her service weapon,

N.J.A.C. 4A:2-2.3(a)(7).

II

As an appellate court, we will overturn a State administrative agency's

decision only if it is arbitrary, capricious, or unreasonable. Henry v. Rahway

State Prison, 81 N.J. 571, 579-80 (1980). Our inquiry is limited to determining:

(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.

[In re Carter, 191 N.J. 474, 482 (2007) (quoting Mazza
v. Bd. of Trs., Police & Firemen's Ret. Sys., 143 N.J.
22, 25 (1995)).]

Finally, although we are not bound by an administrative agency's purely

legal determination, Francois v. Bd. of Trs., Pub. Emps. Ret. Sys., 415 N.J.

Super. 335, 348 (App. Div. 2010), we defer to the agency's interpretations of the

statutes and the implementing regulations it administers, unless such

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interpretation is "plainly unreasonable." In re Election Law Enf't Comm'n

Advisory Op. No. 01-2008, 201 N.J. 254, 260 (2010).

Here, the uncontested evidence supports the Commission's decision to

uphold the City's action terminating appellant's employment as a police officer.

Appellant attempted to conceal a fellow police officer's illicit drug use as well

as her own addiction to prescription medication. She knowingly disobeyed a

direct order from the Police Chief and failed to take basic measures to safeguard

her loaded service handgun. Appellant's belated attempts to address her

substance abuse problem were insubordinate and do not mitigate her pattern of

misconduct.

We have affirmed the termination of a police officer's employment for

infractions that went to the heart of the officer's ability to be trusted to function

appropriately in his or her position. Cosme v. E. Newark Twp. Comm., 304 N.J.

Super. 191, 206 (App. Div. 1997). Appellant's blatant disregard of the rules

governing her conduct goes to "the heart" of her ability to function as a police

officer. We discern no legal basis to disturb the Commission's decision

upholding the termination of appellant's employment as a police officer.

Affirmed.

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