NOT FOR PUBLICATION WITHOUT THE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-1605-16T4
JUAN VILLALOBOS,
Appellant,
v.
NEW JERSEY STATE PAROLE BOARD,
Respondent.
__________________________________
Argued May 30, 2018 – Decided June 12, 2018
Before Judges Fisher, Moynihan and Natali.
On appeal from the Civil Service Commission,
CSC Docket No. 2015-3042.
Sanford R. Oxfeld argued the cause for
appellant (Oxfeld Cohen, PC, attorneys;
Sanford R. Oxfeld, of counsel; John Branigan,
on the brief).
Gregory R. Bueno, Deputy Attorney General,
argued the cause for respondent New Jersey
State Parole Board (Gurbir S. Grewal, Attorney
General, attorney; Melissa Dutton Schaffer,
Assistant Attorney General, of counsel;
Gregory R. Bueno and Suzanne Davies, Deputy
Attorney General, on the brief).
Gurbir S. Grewal, Attorney General, attorney
for respondent New Jersey Civil Service
Commission (Debra A. Allen, Deputy Attorney
General, on the statement in lieu of brief).
PER CURIAM
Juan Villalobos appeals from a final determination of the
Civil Service Commission (Commission) terminating his position as
a senior parole officer with the New Jersey State Parole Board
(Board) for misappropriating union funds. The Commission adopted
the decision of the Administrative Law Judge (ALJ). We affirm.
Because ALJ Thomas R. Betancourt comprehensively detailed the
relevant factual and procedural history in his written opinion,
we briefly recount those facts necessary to provide context for
our decision.
Villalobos was a parole officer with the Board from 1994 to
2013. During that period, he also held numerous executive
positions with his union, Police Benevolent Association (PBA)
Local 326, including recording secretary, vice-president,
president and state delegate. On December 9, 2013, the Bergen
County Prosecutor charged Villalobos with theft by deception for
improperly withdrawing $5270 in union funds to pay personal legal
expenses related to his divorce and current family members'
immigration issues.
The next day, the Board issued an initial Preliminary Notice
of Disciplinary Action (PNDA) and suspended Villalobos with pay
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pending a Loudermill1 hearing for conduct unbecoming a public
employee in violation of N.J.A.C. 4A:2-2.3. The PNDA identified
the specific criminal and administrative charges and notified
Villalobos that he was in "jeopardy of removal" because of his
"indictment"2 by the Bergen County Prosecutor.
Less than a week later, Villalobos participated in a
Loudermill hearing. The hearing officer issued a written decision
the same day. Like the PNDA, the decision detailed the charges
and informed Villalobos that he was at risk of being removed from
his employment with the Board. He also concluded that there was
sufficient evidence to suspend Villalobos with pay pending a formal
disciplinary hearing. Villalobos was served with a copy of the
hearing officer's decision.
Villalobos was accepted into the Bergen County Pretrial
Intervention (PTI) Program and ordered to repay the
misappropriated funds. He was granted an early release of PTI and
his record was expunged.
The Board issued a second PNDA on September 2, 2014.
Villalobos was again notified that he was charged with conduct
1
Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 546 (1985).
2
As criminal proceedings were initiated by summons and complaint,
the PNDA's reference to an indictment was in error.
3 A-1605-16T4
unbecoming a public employee and that he could lose his job because
of the charges that led to his arrest.
Next, the Board held a formal disciplinary hearing. The
hearing officer concluded Villalobos' conduct was unbecoming of a
public employee in violation of N.J.A.C. 4A:2-2.3(a)(6), (11), and
recommended Villalobos be terminated from his position as a parole
officer. The Board issued a Final Notice of Disciplinary Action
(FNDA) affirming the conduct unbecoming charge and Villalobos'
firing. Villalobos appealed his termination and the matter was
transferred to the Office of Administrative Law (OAL) as a
contested case.
The ALJ presided over a five-day hearing. He considered
testimony from twelve witnesses and examined documentary evidence
introduced by the parties including five unauthorized checks that
formed the basis of the charges.
The ALJ determined that four of the checks — nos. 2016, 2017,
2560 and 2937 — were issued from 2008 to 2010 to Anayancy R.
Hausman, Esq., an immigration attorney working with Villalobos'
current wife's family. The last check at issue — no. 2612 — was
issued on January 6, 2010, in the amount of $3000 and made payable
to Charles C. Abut, Esq., Villalobos' divorce mediator.
Before the ALJ, Villalobos defended his conduct not by
claiming the disputed funds were appropriately related to union
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business — he conceded the money was used for personal legal
expenses — rather, he maintained the checks were authorized and
issued consistent with then existing PBA Local 326 practices and
procedures. Two witnesses played a critical role at trial on this
central point: Villalobos and Kenneth Metallides, a senior parole
officer and former PBA Local 326 treasurer.
Metallides testified that PBA Local 326 maintained general,
political action committee, and annuity accounts. He stated that
the union's regular and ordinary practice required checks
exceeding $500 issued from the union's accounts to be presented
to the executive board for approval and signed by the treasurer
and either the president or the state delegate. Metallides stated
that it was his practice as treasurer to leave behind both signed
and unsigned blank checks when he went on vacation. In December
2009, he left signed, blank checks with Villalobos, but expected
that they would be used for "[u]nion expenses or [u]nion
expenditures" and only in an emergency.
Metallides testified that upon returning from vacation in
January, he noticed that Villalobos had issued multiple checks in
his absence, including check no. 2612, a pre-signed check that
Villalobos co-signed. According to Metallides, check no. 2612 was
disbursed contrary to union policies as it was issued without his
or the board's approval.
5 A-1605-16T4
Metallides testified that he emailed Villalobos concerning
check no. 2612 and other checks written from the general account
and asked for documentation supporting the expenditures. He also
verbally asked Villalobos for clarification as to the purpose of
check no. 2612. Villalobos responded that check no. 2612 related
to an arbitration. Metallides understood Villalobos' explanation
to mean that the check was a union expenditure for an arbitrator,
a common practice.
Villalobos testified that the checks at issue were approved
in a manner consistent with PBA Local 326's practices and that
check no. 2612 was a loan. He confirmed that if a member requests
funds from the union's accounts, the item was placed on the meeting
agenda for discussion and vote. If approved, a check was issued
and the transaction noted in the meeting minutes. He also
maintained that the minutes would confirm the board authorized the
expenditures reflected in the checks.3
Villalobos disputed Metallides' testimony that he regularly
left blank, signed checks behind when he went on vacation. He
stated that Metallides knowingly signed the disputed checks and
maintained check no. 2612 was presented to the executive board for
3
Neither party offered into evidence any of the board minutes.
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approval. Villalobos denied having received the email from
Metallides inquiring into checks written from the general account.
In his written decision, the ALJ determined that the Board
met its burden of proof by a preponderance of the competent and
credible evidence. He characterized Metallides' testimony as
"compelling" and found him to be an "extremely credible" witness.
The ALJ specifically deemed his testimony regarding leaving signed
blank checks in his office while on vacation "very credible."
Conversely, the ALJ did not believe Villalobos. He
characterized his testimony as "disingenuous" and observed that
he did not respond directly to questions but rather "seemed to
spin [his] answers." The ALJ based his adverse credibility
findings in part on Villalobos' "not believable" testimony that
he failed to receive Metallides' email regarding check no. 2612.
He further concluded that Villalobos' testimony that the $3000
check was brought to the attention of the board "defie[d]
credulity" as Metallides was on vacation at the time the check was
issued and no executive meeting was scheduled.
The ALJ considered Villalobos' conduct in the context of his
status as a law enforcement officer which required Villalobos to
be held "to a higher standard." In affirming the decision of the
hearing officer, the ALJ substantiated the charge of conduct
unbecoming a public official warranting termination:
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It is abundantly clear from the record that
[Villalobos] used [PBA Local] 326's account
to pay personal legal expenses related to his
divorce and for the family of his future wife.
[Villalobos] was appropriately charged with
theft by deception in violation of N.J.S.A.
2C:20-4. Notwithstanding that [Villalobos]
entered into PTI, received early termination
of PTI and had the record expunged, the
underlying fact that [he] misused union funds
is more than sufficient to sustain a finding
of conduct unbecoming a public employee. It
is also a sustained charge[] that warrants a
penalty of removal.
On November 15, 2016, the Commission adopted the ALJ's findings
of fact and conclusions of law.
On appeal, Villalobos contends the decision of the Commission
was not supported by a preponderance of the competent and credible
evidence and that he was not sufficiently put on notice of the
charges against him. We disagree.
Appellate review of an administrative agency decision is
limited. In re Herrmann, 192 N.J. 19, 27 (2007). A strong
presumption of reasonableness attaches to the Commission's
decision. In re Carroll, 339 N.J. Super. 429, 437 (App. Div.
2001). Appellant has the burden to demonstrate grounds for
reversal. McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544,
563 (App. Div. 2002).
Appellate courts generally defer to final agency actions,
only "reversing those actions if they are 'arbitrary, capricious
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or unreasonable or [if the action] is not supported by substantial
credible evidence in the record as a whole.'" N.J. Soc'y for the
Prevention of Cruelty to Animals v. N.J. Dep't of Agric., 196 N.J.
366, 384-85 (2008) (quoting Henry v. Rahway State Prison, 81 N.J.
571, 579-80 (1980) (alteration in original)). Under the arbitrary,
capricious, and unreasonable standard, our scope of review is
guided by three major inquiries: (1) whether the agency's decision
conforms with the relevant law; (2) whether the decision is
supported by substantial credible evidence in the record; and (3)
whether in applying the law to the facts, the administrative agency
clearly erred in reaching its conclusion. In re Stallworth, 208
N.J. 182, 194 (2011).
When an agency decision satisfies such criteria, we accord
substantial deference to the agency's fact-finding and legal
conclusions, acknowledging the agency's "expertise and superior
knowledge of a particular field." Circus Liquors, Inc. v.
Governing Body of Middletown Twp., 199 N.J. 1, 10 (2009) (quoting
Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992)).
We will not substitute our judgment for the agency's even though
we might have reached a different conclusion. Stallworth, 208
N.J. at 194; see also In re Taylor, 158 N.J. 644, 656 (1999).
Our deference to agency decisions "applies to the review of
disciplinary sanctions as well." Herrmann, 192 N.J. at 28. "In
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light of the deference owed to such determinations, when reviewing
administrative sanctions, 'the test . . . is whether such
punishment is so disproportionate to the offense, in light of all
the circumstances, as to be shocking to one's sense of fairness.'"
Id. at 28-29 (quoting In re Polk, 90 N.J. 550, 578 (1982)).
After thoroughly reviewing the record in light of the legal
principles and the standard of review, we are satisfied that the
Commission's decision was not arbitrary, capricious or
unreasonable and was supported by substantial credible evidence
in the record. According deference to the ALJ's credibility
determinations, there is substantial evidence in the record to
support the ALJ's factual findings and legal conclusions, which
the Commission adopted. Further, we conclude the penalty of
termination of a public officer who misappropriates union funds
for personal use was not so wide of the mark to justify our
substitution of the Commission's judgment. See In re Carter, 191
N.J. 474, 485 (2007) (recognizing that appellate courts have upheld
the removal of public officials "where the acts charged, with or
without any prior discipline, have warranted the imposition of
that sanction").
With respect to Villalobos' claim that he received inadequate
notice of the charges, the ALJ correctly concluded that the initial
PNDA adequately informed Villalobos of the charges and the Board's
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incorrect characterization of the summons and complaint as an
"indictment" did not render the notice deficient. Specifically,
the PNDA outlined Villalobos' criminal and administrative charges
and notified him that he was in jeopardy of being fired. Further,
the ALJ astutely noted that Villalobos received a second PNDA and
participated in a Loudermill hearing. Both the second PNDA and
the decision stemming from the Loudermill hearing indicated that
Villalobos could be dismissed as a parole officer as a result of
his alleged criminal behavior. The notice here was significantly
more detailed than that provided to the public employee in Town
of West New York v. Bock, 38 N.J. 500 (1962). In that case, the
PNDA did not advise the employee of the penalty of removal and the
Commission considered actions outside the scope of the charges
listed in the PNDA.
In light of the information contained in the multiple PNDAs
and presented at the Loudermill hearing, the ALJ appropriately
determined that Villalobos was provided with sufficient notice of
the charges to prepare a defense and was given all the process he
was due. See Bock, 38 N.J. at 520-21.
To the extent not addressed, Villalobos' remaining arguments
lack sufficient merit to warrant discussion in a written opinion.
R. 2:11-3(e)(1)(E).
Affirmed.
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