NOT FOR PUBLICATION WITHOUT THE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-2987-18T2
IN THE MATTER OF MONIQUE
SMITH, IRVINGTON TOWNSHIP,
DEPARTMENT OF PUBLIC
SAFETY.
______________________________
Argued telephonically September 21, 2020 –
Decided October 2, 2020
Before Judges Rothstadt and Mayer.
On appeal from the New Jersey Civil Service
Commission, Docket No. 2018-1878.
Steven D. Altman argued the cause for appellant
(Benedict & Altman, attorneys; Steven D. Altman and
Joshua Altman, on the briefs.)
David I. Solomon argued the cause for respondent
Irvington Township Department of Public Safety
(Florio Perrucci Steinhardt Cappelli Tipton & Taylor,
LLC, attorneys; Lester E. Taylor and Michael P.
Marotta on the brief).
Gurbir S. Grewal, Attorney General, attorney for
respondent Civil Service Commission (Jonathan S.
Sussman, Deputy Attorney General, on the statement in
lieu of brief).
PER CURIAM
Petitioner Monique Smith appeals from a final agency decision by the
Civil Service Commission (Commission) finding support for three of the nine
disciplinary charges filed against her by respondent Irvington Township
Department of Public Safety (Police Department) resulting in her suspension for
ninety working days. In addition, she appeals the denial of her request for
attorney's fees. For the reasons that follow, we vacate the Commission's
decision and remand the matter to the Commission for referral to the
Administrative Law Judge (ALJ) to set forth findings of fact and conclusions of
law separate from the fact-findings and conclusions reached by the Law Division
judge in Smith's criminal matter.
We provide a brief overview of the facts to give context to our decision.
Smith worked for the Police Department and was promoted to the rank of captain
in a ceremony held on January 5, 2015. Smith's boyfriend at the time, John
Sharpe James, terminated their relationship in an email message sent the day of
the promotion ceremony. After the ceremony and celebratory party, Smith went
to James's apartment to discuss the breakup and found James outside in his car.
Upon seeing Smith, James drove off, and Smith followed in her car. It was
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reported that Smith drove aggressively, and Smith admitted to driving over a
center island while following James's car.
As a result of this incident in January 2015, Smith was issued with two
motor vehicle summonses and six other violations. She was charged with
leaving the scene of an accident, N.J.S.A. 39:4-129, and reckless driving,
N.J.S.A. 39:4-96. Based on these charges, Smith was suspended by the Police
Department.
On June 23, 2015, Smith was criminally charged with second-degree
aggravated assault, N.J.S.A. 2C:12-1(b)(1); fourth-degree unlawful possession
of a weapon, N.J.S.A. 2C:39-5(d); third-degree possession of a weapon for an
unlawful purpose, N.J.S.A. 2C:39-4(d); and fourth-degree criminal mischief,
N.J.S.A. 2C:17-3(a)(1), related to the January 2015 incident with James. Prior
to trial, the State dismissed the aggravated assault charge and amended the
criminal mischief charge to a disorderly persons charge.
The possession charges were presented to a jury, and the jury found Smith
not guilty. Thereafter, the parties agreed to allow the criminal trial judge to
decide the remaining charges by way of a bench trial. In a twenty-two page
written decision, the criminal trial judge found Smith guilty of reckless driving
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but not guilty of disorderly persons criminal mischief and leaving the scene of
an accident.
Subsequent to the issuance of the criminal trial judge's decision, the
Commission issued a preliminary notice of disciplinary action asserting nine
charges against Smith. Four of the charges asserted conduct unbecoming a
public employee, N.J.A.C. 4A:2-2.3(a)(6), and five of the charges were for other
sufficient causes, N.J.A.C. 4A:2-2.3(a)(12). The Police Department conducted
a disciplinary hearing, which resulted in a final notice of disciplinary action
imposing a six-month working-day suspension without pay commencing
January 6, 2015.
Smith appealed to the Commission, and the matter was referred to the
Office of Administrative Law (OAL). An ALJ conducted two days of hearings.
An investigating detective for the Police Department and the Director of Public
Safety testified for Irvington. Smith did not present any witnesses.
After completion of the testimony, the ALJ rendered a written decision.
Her written decision relied on the factual findings of the trial judge in Smith's
criminal proceeding.
The ALJ concluded "almost entirely based upon [the criminal trial judge's]
decision, . . . that Irvington has proved by a preponderance of the credible
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evidence that Captain Smith drove recklessly, including some minor contact
with the vehicle of her former boyfriend." She expressly noted, "there was little
evidence adduced that was not derivative of the prior criminal proceedings."
In her written decision, the ALJ relied on the criminal trial judge's
decision based on the doctrine of collateral estoppel. Because Smith did not
appeal the criminal trial judge's decision, the ALJ concluded she "must accept
[the criminal trial judge's determinations] as having been previously adjudicated
against [Smith], after she had a full and fair opportunity to be heard."
Relying on the criminal trial judge's written decision, the ALJ concluded
there was "credible proof presented that [Smith] recklessly pursued James in her
vehicle and that the necessary supporting facts of such were incorporated into
his finding of her guilt on the reckless driving charge" thereby supporting charge
two of conduct unbecoming a public employee as well as charge three of other
sufficient causes. The ALJ suspended Smith for ninety days and awarded her
one-half of the attorney's fees requested "as the prevailing party."
Smith filed written exceptions to the ALJ's decision with the Commission.
The Commission "accepted and adopted the [f]indings of [f]act" of the ALJ and
affirmed her suspension but held the ninety-day suspension was based on
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"working" days. In addition, the Commission reversed the ALJ's award of
attorney's fees.
On appeal, Smith raises four issues: (1) procedural deficiencies during the
disciplinary process require the disciplinary findings be vacated; (2) the findings
related to the disciplinary violations must be vacated for lack of competent
evidence and a failure to prove by a preponderance of the evidence; (3) the
ninety working-day suspension was an error; and (4) counsel fees should have
been awarded to Smith as the prevailing party.
An appellate court has "a limited role" in the review of administrative
agency decisions. Henry v. Rahway State Prison, 81 N.J. 571, 579 (1980). We
may reverse an agency's decision "if it is arbitrary, capricious or unreasonable
or . . . not supported by substantial credible evidence in the record as a whole."
Id. at 579-80 (citing Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963)).
In determining if an agency's decision is arbitrary, capricious, or unreasonable,
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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[In re Carter, 191 N.J. 474, 482-83 (2007) (quoting
Mazza v. Bd. of Trs., 143 N.J. 22, 25 (1995)).]
Smith argues the ALJ's fact-findings were deficient because she
improperly adopted the factual findings of the criminal trial judge under the
doctrine of collateral estoppel. We agree.
"A court has broad discretion to determine whether application of
collateral estoppel is appropriate." Adelman v. BSI Fin. Servs., Inc., 453 N.J.
Super. 31, 39-40 (App. Div. 2018), certif. denied, 236 N.J. 628 (2019) (citing
Parklane Hosiery Co. v. Shore, 439 U.S. 322, 331 (1979)).
[F]or the doctrine of collateral estoppel to apply to
foreclose the relitigation of an issue, the party asserting
the bar must show that: (1) the issue to be precluded is
identical to the issue decided in the prior proceeding;
(2) the issue was actually litigated in the prior
proceeding; (3) the court in the prior proceeding issued
a final judgment on the merits; (4) the determination of
the issue was essential to the prior judgment; and (5)
the party against whom the doctrine is asserted was a
party to or in privity with a party to the earlier
proceeding.
[Olivieri v. Y.M.F. Carpet, Inc., 186 N.J. 511, 521
(2006) (quoting In re Estate of Dawson, 136 N.J. 1, 20-
21 (1994)).]
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Application of collateral estoppel is prohibited "if a party has not had a 'full and
fair opportunity to litigate an issue.'" State v. McKinney, 223 N.J. 475, 493
(2015) (quoting State v. K.P.S., 221 N.J. 266, 278 (2015)).
Here, Smith correctly argues the doctrine of collateral estoppel was
inapplicable. Smith's reckless driving guilty verdict in the criminal matter was
not "identical" to a charge of conduct unbecoming a public employee. More
importantly, the conduct unbecoming issue was never presented or litigated
before the criminal trial judge. Because the doctrine of collateral estoppel was
inapplicable, the ALJ was required to set forth her own findings of fact in
deciding that Smith's actions constituted a disciplinary violation.
Having reviewed the record, the ALJ's decision was not supported by
substantial credible evidence in the record before the OAL. As a result, the
Commission's adoption of the ALJ's findings was fatally flawed. Absent
independent findings by the ALJ, untethered to the findings by the judge in
Smith's criminal trial, the matter must be remanded to the Commission. The
Commission shall refer the matter to the OAL for the ALJ to determine whether
Smith's reckless driving constituted conduct unbecoming of an officer and other
sufficient causes to warrant discipline without reliance upon the criminal trial
judge's fact-findings.
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Because we vacate and remand the matter to Commission, we need not
address Smith's remaining arguments on appeal. Those arguments may be
presented at the remand proceeding.
Vacated and remanded. We do not retain jurisdiction.
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