IN THE MATTER OF RICHARD C. WILLIAMS, JR. (CIVIL SERVICE COMMISSION) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE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-3257-15T4
IN THE MATTER OF RICHARD C.
WILLIAMS, JR.
Submitted April 23, 2018 – Decided June 27, 2018
Before Judges Ostrer and Rose.
On appeal from the New Jersey Civil Service
Commission, CSC Docket No. 2011-1335.
Blaney & Karavan, PC, attorneys for appellant
(Frank Guaracini, III, on the brief).
Levin Pisetzner Levin, attorneys for
respondent (Joseph A. Levin, on the brief).
PER CURIAM
This matter returns to us after a remand to the Civil Service
Commission ("Commission") "for a de novo hearing and initial
decision" before a different administrative law judge ("ALJ"),
following the disqualification of the first ALJ because of a
conflict of interest. In re Richard C. Williams, Jr., No. A-0837-
11 (App. Div. Aug. 6, 2013) (slip op. at 11), certif. denied, 217
N.J. 53 (2014). At issue is the City of Atlantic City's removal
of Richard C. Williams, Jr. from his firefighter position pursuant
to departmental charges, including conduct unbecoming a public
employee, N.J.A.C. 4A:2-2.3(a)(6). On remand, another ALJ
conducted a hearing and, unlike the first ALJ, reversed the City's
termination of Williams' employment. The City appeals from the
Commission's final decision, adopting the ALJ's decision, which
denied admission of witness testimony adduced at the hearing before
the first ALJ. We affirm.
I.
We incorporate by reference the facts and procedural history
set forth in the second ALJ's December 21, 2015 initial decision.
In sum, the charges against Williams stem from allegations that
he exposed himself and ejaculated in front of a group of females
during an unscheduled tour of the firehouse when he was on duty.
The group was comprised of C.W. her sister, T.P., and two friends,
D.N. and A.S.1 C.W. also claimed Williams improperly allowed her
and A.S. to wear fire gear during the tour. C.W., T.P., and D.N.
testified at the hearing before the first ALJ.
Following remand, five years after the incident occurred, the
City filed a motion to admit into evidence the prior testimony of
1
C.W. and D.N. were adults at the time of the incident, but T.P.
and A.S. were sixteen years old. We use initials to protect their
privacy.
2 A-3257-15T4
C.W., T.P., and D.N., claiming they were unavailable, pursuant to
N.J.R.E. 804. Williams opposed the motion on several grounds,
including the ALJ's need to assess the witnesses' credibility
through "live-testimony." On the first day of the hearing, the
City produced testimony from an assistant solicitor regarding his
attempts to contact the witnesses. The judge denied the motion.
Pertinent to this appeal,2 the solicitor acknowledged he did
not seek police assistance to locate D.N. Rather, he attempted
to find D.N. through social media. The solicitor sent
correspondence to D.N. via certified and regular mail advising
that "her appearance [in court] may be required." He also
attempted to hand-deliver the letter without success. Eventually,
the solicitor contacted D.N.'s mother who indicated that D.N. was
in Maryland, but was "unavailable because she just had a surgical
procedure." Telephonic attempts to contact the Maryland motor
vehicle administration were unsuccessful. Although he contacted
"various courts in the [S]tate of Maryland" the solicitor did not
request any record checks, nor contact the prison system. The
solicitor did not retain a locator service.
2
C.W. and T.P. eventually appeared on the second day of the
hearing, but there was only enough time for C.W. to testify. The
City's motion was, therefore, rendered moot as to C.W.
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Although T.P. appeared at the second day of the hearing with
C.W., time did not permit her testimony. T.P. did not return to
court on February 6, 2015, the third and final day of the hearing.
The solicitor contacted the mother of T.P. and C.W. who advised
that both of her daughters were moving to Georgia. Although the
solicitor did not serve T.P. with a new subpoena for the February
hearing, he had informed her that the initial subpoena "was a
continuing subpoena." The ALJ denied the City's renewed request
to admit the transcripts and the hearing proceeded. The City
called C.W. as a witness. On the third day of the hearing,
Williams testified on his own behalf, along with multiple lay and
character witnesses.
According to Williams, at some point during the firehouse
tour, C.W. asked if she could try on gear, and started dancing
around and "wanted to do a dance with a pole." Williams told C.W.
that she could not do so, but she asked, "[Y]ou wouldn't pay to
see us dance?" Williams then ended the tour and escorted the four
women from the firehouse.
C.W. testified at the hearing and gave a vastly different
version of the events. She claimed C.W. permitted her and A.W.
to try on the firefighters' equipment, but instructed them not to
take photographs "because they can get in trouble." C.W. asked
her friend to take a photograph of her only wearing a bra with
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firefighter's suspenders. C.W. further claimed that Williams
explicitly asked whether anyone would "give him a blowjob. . . .
[and] pulled out his penis." D.N. was "playing with him . . . to
make his penis hard" and he ejaculated. Williams kissed D.N.'s
breasts and gave D.N. twenty dollars.
In her written decision, the second ALJ determined C.W. was
not credible based on her "attitude and lack of candor on the
witness stand," which the ALJ found "troubling." Moreover, the
ALJ observed various inconsistencies in C.W.'s testimony. In
particular,
In her initial report, C.W. s[t]ated that she
and the other young women were dancing,
showing their breasts, giving oral sex, and
getting money from three firefighters
involved. In her later statements and
testimony, C.W. stated that there was no oral
sex, that there was no touching, that only one
firefighter was involved, and that only D.N.
received money. The sexual activity allegedly
occurred through pants that had been unzipped.
Then the story changed to occurring with the
pants unbuttoned and taken down. Moreover,
C.W. waited two months before making any
accusations, and then told [a City police
aide] whom she did not know when she was
attending municipal court.
Conversely, the ALJ found credible the testimony of Williams and
his several character witnesses. Accordingly, the ALJ dismissed
the violations of departmental rules and regulations, and
reinstated Williams to his position as a City firefighter. Her
5 A-3257-15T4
initial decision was later deemed adopted as the Commission's
final agency decision, pursuant to N.J.S.A. 52:14B10(c), due to a
lack of quorum created by vacancies.
The ALJ's decision also detailed her reasons for denying the
City's motion. In doing so, she found the City "failed to show
that [T.P. and D.N.] were unavailable or were otherwise not subject
to process to compel them to testify at the hearing." This appeal
followed.
Although the City moved to admit the prior testimony pursuant
to N.J.R.E. 804, it primarily argues for the first time on appeal,
that the ALJ abused her discretion by failing to admit the
testimony under the evidentiary provisions contained in the
Administrative Code, i.e., N.J.A.C. 1:1-15.1 and N.J.A.C. 1:1-
15.5. In doing so, the City claims the New Jersey Rules of
Evidence should not have been applied here. See N.J.A.C. 52:14B-
10(a); N.J.A.C. 1:1-15.1(c); N.J.R.E. 101(a)(3). In the
alternative, the City renews its argument that the witnesses were,
nevertheless, "unavailable" pursuant to N.J.R.E. 804.
II.
Typically, where an agency issues a final decision, our review
is limited. Lavezzi v. State, 219 N.J. 163, 172 (2014). We will
not disturb the final determination of an agency unless shown that
it was "arbitrary, capricious or unreasonable, or it is not
6 A-3257-15T4
supported by substantial credible evidence in the record as a
whole." Id. at 171 (quoting Prado v. State, 186 N.J. 413, 427
(2006)). That deference extends to decisions relating to employee
discipline and punishment, including termination. In re Herrmann,
192 N.J. 19, 28 (2007); see also In re Carter, 191 N.J. 474, 486
(2007).
However, "when the lack of a quorum attributable to vacancies
cause[s] the agency inaction [in response to an ALJ's
recommendation], the current version of the deemed-adopted statute
does not require traditional deferential appellate review of the
ALJ's decision." In re Hendrickson, 451 N.J. Super. 262, 266 (App.
Div.), certif. granted, 231 N.J. 143 (2017). Instead, we apply
the "standard of review for bench trials[,]" where we will affirm
an ALJ's factual findings "to the extent they are supported by
substantial credible evidence in the record." Id. at 273 (second
quotation citing Zaman v. Felton, 219 N.J. 199, 215 (2014)).
Thus, we will "not disturb the factual findings" unless we
are "convinced that they are so manifestly unsupported by[,] or
inconsistent with[,] the competent, relevant[,] and reasonably
credible evidence as to offend the interests of justice[.]"
D'Agostino v. Maldonado, 216 N.J. 168, 182 (2013) (fourth
alteration in original) (quoting Seidman v. Clifton Sav. Bank,
7 A-3257-15T4
S.L.A., 205 N.J. 150, 169 (2011)). Additionally, we defer to
credibility determinations because the judge "'hears the case,
sees and observes the witnesses, and hears them testify,' affording
[the judge] 'a better perspective than a reviewing court in
evaluating the veracity of a witness.'" Gnall v. Gnall, 222 N.J.
414, 428 (2015) (quoting Cesare v. Cesare, 154 N.J. 394, 412
(1998)).
However, "No deference will be accorded to . . . legal
conclusions; they will be reviewed de novo." In re Hendrickson,
451 N.J. Super. at 274 (citing Zaman, 219 N.J. at 216).
Nevertheless, we give substantial deference to the trial judge's
discretion on evidentiary rulings, Benevenga v. Digregorio, 325
N.J. Super. 27, 32 (App. Div. 1999), and "reverse a judgment based
on an evidentiary error only if we are convinced that the error
'was clearly capable of producing an unjust result.'" Manata v.
Pereira, 436 N.J. Super. 330, 343-44 (App. Div. 2014) (quoting
Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 502 (1999)).
As in Hendrickson, the ALJ's decision here was deemed adopted
because the Commission, for reasons beyond its control, could not
muster a quorum. Applying the bench trial standard of review, we
find the second ALJ properly excluded the prior testimony of T.P.
and D.N.
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Initially, we address the City's newly-minted argument that
the ALJ failed to admit the prior testimony pursuant to N.J.A.C.
1:1-15.12, under the plain error standard of review. R. 2:10-2;
see also Pressler & Verniero, Current N.J. Court Rules, cmt. 2.1
on R. 2:10-2 (2018) (recognizing the applicability of Rule 2:10-2
in administrative appeals). In particular, the City claims the
ALJ did make the requisite credibility evaluation in excluding the
prior testimony. N.J.A.C. 1:1-15.12(a) provides:
If there was a previous hearing in the same
or related matter which was electronically or
stenographically recorded, a party may, unless
the judge determines that it is necessary to
evaluate credibility, offer the transcript of
a witness in lieu of producing the witness at
the hearing provided that the witness'
testimony was taken under oath, all parties
were present at the proceeding and were
afforded a full opportunity to cross-examine
the witness.
[(emphasis added).]
The City's argument is unpersuasive. The ALJ referenced
N.J.A.C. 1:1-15.12 in her written decision, and explicitly cited
the credibility issue at the conclusion of the solicitor's
testimony recounting his attempts to locate the witnesses. While
we acknowledge colloquy between counsel and a judge cannot
substitute for the judge's factual findings and legal conclusions,
Pardo v. Dominquez, 382 N.J. Super. 489, 492 (App. Div. 2006),
there was ample evidence in the record to support the ALJ's
9 A-3257-15T4
determination that it was necessary for her to evaluate the
credibility of T.P. and D.N.
For example, T.P.'s statement to the City's police detective
contradicted her testimony before the first ALJ. During her
interview with the detective, T.P. identified Williams from a
photo array and specifically denied that he was involved in any
misconduct. However, when she testified at the first hearing,
T.P. recanted that statement. By the time she testified, T.P.'s
sister C.W. had filed a civil lawsuit against the City and Williams
Contrary to the City's claims, D.N.'s prior testimony was
inconsistent with C.W.'s version of events. D.N. claimed C.W.
offered to perform oral sex on the firefighter, and C.W., alone,
walked around the firehouse. Thus, the ALJ rhetorically asked at
the conclusion of the solicitor's testimony,
If they testified one way and then changed
their mind and testified another way, how do
I know which one is real and which one is
[no]t unless I have the opportunity to see
them and see how they testify and see how they
[a]re exposed on cross-examination? Which is
really the heart of our system when . . .
credibility is an issue.
Here, the ALJ's decision denying admission of the prior
testimony rested on her explicit recognition, on the record at the
conclusion of the hearing, that "credibility is really the issue
[here]." We thus discern no error, much less plain error, in the
10 A-3257-15T4
ALJ's evidentiary decision. Her need to observe and hear T.P. and
D.N. testify was both implicitly and explicitly expressed on the
record and in her written decision. Gnall, 222 N.J. at 428.
Nor are we persuaded that the ALJ erred by failing to admit
the transcripts pursuant to the Code's "residuum rule" set forth
in N.J.A.C. 1:1-15.5(b). Although the City did not argue admission
of the prior testimony on that basis, the ALJ acknowledged the
residuum rule in her written decision. In any event, pursuant to
N.J.A.C. 1:1-15.1(c), "All relevant evidence is admissible except
as otherwise provided [in the Code]." Because N.J.A.C. 1:1-15.12
specifically pertains to prior testimony, the residuum rule is not
triggered here.
Finally, we agree with the ALJ that neither T.P. nor D.N. was
shown to be unavailable within the meaning of N.J.R.E. 804. The
City's argument rests on Rule 804(a)(4)'s catch-all provision,
defining "unavailable" to include absence from a hearing due to
"death, physical or mental illness or infirmity, or other cause,
and the proponent of the statement is unable by process or other
reasonable means to procure the declarant's attendance at trial
. . . " (emphasis added). The City argues T.P. and D.N. were
unavailable to testify before the second ALJ due to "other cause."
Specifically, T.P. refused to comply with her continuing subpoena,
11 A-3257-15T4
and D.N. could not be located. The City's claims are belied by
the record.
While T.P. may have been under a continuing subpoena pursuant
to N.J.A.C. 1:1-11.1(b), the record is devoid of proof that she
was, in fact, informed of the February 6, 2015 continuation date
of the hearing. Rather, the solicitor testified that T.P. and
C.W. "said . . . they would be available for . . . future hearings."
The solicitor attempted to contact T.P. telephonically concerning
the February 6 hearing, but never spoke with T.P. That was the
extent of his attempts to produce her for the hearing. As the ALJ
aptly found, T.P. "responded to process at the first scheduled
hearing date, and there is no reason to believe that she would not
have been available had she been timely and personally served with
a notice to attend the hearing in February."
We likewise agree with the ALJ's determination that the City's
efforts to locate D.N. were insufficient. The ALJ found, "Other
than a few telephone calls to state agencies, with no written
follow-up or request, or the use of a locator service, [the City]
gave up on its efforts to locate [D.N.], or to determine whether
she would be subject to [the] interstate subpoena process."
We conclude from our review of the record that the ALJ's
decision was supported by sufficient credible evidence in the
record. Accordingly, the Commission's decision adopting that
12 A-3257-15T4
decision was not arbitrary, capricious or unreasonable. We,
therefore, discern no basis to alter the Commission's decision.
See In Re Young, 202 N.J. 50, 70 (2010).
Affirmed.
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