STATE OF NEW JERSEY VS. AL QUAADIR GREEN(01-10-4345, ESSEX COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE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-0825-14T2
IN THE MATTER OF
BASEM ZAGHLOUL
CITY OF NEWARK
POLICE DEPARTMENT.
Submitted December 14, 2016 – Decided March 10, 2017
Before Judges Alvarez and Accurso.
On appeal from the Civil Service Commission,
Docket No. 2012-2210.
Fusco & Macaluso Partners, LLC, attorneys for
appellant Basem Zaghloul (Amie E. DiCola, on
the brief).
Willie L. Parker, Corporation Counsel,
attorney for respondent City of Newark
(Corinne E. Rivers, Assistant Corporation
Counsel, on the brief).
Christopher S. Porrino, Attorney General,
attorney for respondent Civil Service
Commission (Pamela N. Ullman, Deputy Attorney
General, on the statement in lieu of brief).
PER CURIAM
Basem Zaghloul, a Newark police officer, appeals from the
October 1, 2014 final decision of the Civil Service Commission
(Commission) imposing a ten-day suspension. We affirm.
A preliminary notice of disciplinary action (PNDA) dated
October 24, 2011, charged Zaghloul with the following violations:
charge one, violations of Newark Police Department Rules and
Regulations, Chapter 3:1.1 and N.J.A.C. 4A:2-2.3(a)(6), conduct
unbecoming a public employee; charge two, insubordination in
violation of Newark Police Department Rules and Regulations,
Chapter 18:8 and N.J.A.C. 4A:2-2.3(a)(2); charge three, a
violation of Newark Police Department Rules and Regulations,
Chapter 5:4.1, obedience to orders; charge four, violation of
Newark Police Department Rules and Regulations, Chapter 5:1.2, use
of foul language; and charge five, violation of Newark Police
Department Rules and Regulations, Chapter 3:1.2-4, demonstration
of respect.
The charges arose from an October 12, 2011 incident when
Zaghloul stopped by his office, while on vacation, to drop off a
check for a fundraiser. Detective Stacey Pickett and Detective
Antonia Rosa happened to be in the midst of reviewing forms
Zaghloul had recently completed and were discussing errors he had
made. Zaghloul became angry when the women told him about their
concerns and, during the conversation which ensued, he referred
to Pickett as "baby" and "sunshine." When Pickett told Zaghloul
to address her as either "Stacey" or "Pickett," Zaghloul became
irate. The discussion rapidly deteriorated until he began to yell
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profanities at Pickett, telling her "I don't give an F about this
work. I don't give an F about you. F you."
Sergeant Beatrice Golden, the supervisor, entered Pickett's
office shortly after the confrontation began. The argument could
be heard in areas accessible to the public, not just to the police.
Pickett and Rosa testified that Zaghloul ignored Golden's order
when she told him to leave the building. On his way out, Zaghloul
either kicked or pulled a chair over onto the floor and went into
the deputy chief's office.
The final notice of disciplinary action (FNDA) imposed a ten-
day suspension on the charges. Zaghloul appealed, and the matter
was transmitted to the Office of Administrative Law (OAL) for a
hearing under the Administrative Procedure Act, N.J.S.A. 52:14B-1
to -15, and the Uniform Administrative Procedure Rules, N.J.A.C.
1:1-1.1 to -21.6.
At the hearing, a number of documents were introduced through
the testimony of Sergeant Julio Benavente. He conducted the
internal affairs investigation, including the taking of
statements. He said that Zaghloul had been reassigned to patrol
duty, and that the deputy chief had told him he was transferred
because of the incident.
Unfortunately, although the OAL hearing began on October 22,
2012, it did not resume until over a year later on November 18,
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2013. On that date, counsel for the City of Newark (City) stated
that she had noticed two additional witnesses, Deputy Chief Israel
Caraballo and Golden. Even though the ALJ waited for over an
hour, neither appeared.
Zaghloul's attorney then moved to dismiss the matter because
in his view "the City hasn't completed [its] case." The ALJ asked
Zaghloul's attorney if he planned to proffer Zaghloul as a witness,
and his attorney responded that "he should not be forced into
testifying . . . ." The attorney argued that it was unfair that
the State had not produced the two witnesses as they were
"crucial." The ALJ pointed out that he also had the opportunity
to subpoena them, and that even if Caraballo and Golden did not
appear, the City had the option of resting on the testimony of the
witnesses it had produced. Hence, the ALJ denied the motion to
dismiss. She also said there was no reason to continue the matter,
although Zaghloul's attorney had not requested a postponement.
The ALJ closed the record and directed that counsel simultaneously
submit their summations in writing.
The ALJ held that the appointing authority had met its burden
of proof by a preponderance of the credible evidence. In support
of the decision, she recounted Benavente's testimony regarding
Pickett and Rosa's incident reports, which included the initial
descriptions of the argument between Zaghloul and Pickett, and
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their description of Golden's order to Zaghloul to leave the
building, which he ignored.
The ALJ credited Rosa and Pickett's testimony that Zaghloul
began to yell profanities and wave his arms in an angry manner
when they began to talk to him about his work. Both witnesses
said Golden ordered Zaghloul to leave the building, and he instead
knocked a chair over and walked into the deputy chief's office.
The ALJ specifically rejected Zaghloul's argument that he did
not have the opportunity to "put in a defense" or to "testify"
because of Caraballo and Golden's failure to appear. No
interlocutory appeals were taken, nor any subpoenas served by
Zaghloul on any officers. He could have testified, but chose not
to. In considering the appropriate sanction, she noted that no
mitigating factors had been presented which warranted a reduction
in the penalty.
Zaghloul filed exceptions to the ALJ's decision. On October
1, 2014, the Commission "accepted and adopted the [f]indings of
[f]act and [c]onclusion."
On appeal, Zaghloul raises the following two points:
POINT ONE
THE COURT SHOULD REVERSE THE CIVIL SERVICE
COMMISSION'S FINAL ADMINISTRATIVE ACTION
BECAUSE [THE ALJ'S] DECISION WAS MANIFESTLY
MISTAKEN AND NOT SUPPORTED BY THE RECORD AS
[] ZAGHLOUL HAD A RIGHT TO RELY ON THE CITY
OF NEWARK'S SUBPOENAS, THE CITY OF NEWARK
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WOULD NOT HAVE SUFFERED PREJUDICE IF THERE WAS
A SHORT ADJOURNMENT OF THE HEARING, AND [THE
ALJ'S] ACTIONS TO THE CONTRARY WERE ARBITRARY
AND CAPRICIOUS.
POINT TWO
THE COURT SHOULD REVERSE THE CIVIL SERVICE
COMMISSION'S FINAL ADMINISTRATIVE ACTION
BECAUSE THE PENALTY IMPOSED BY THE CIVIL
SERVICE COMMISSION WAS DISPROPORTIONATE IN
LIGHT OF ALL THE CIRCUMSTANCE[S] AS []
ZAGHLOUL WAS ALREADY DEMOTED AND TRANSFERRED
FOR HIS ACTIONS ON OCTOBER 12, 2011 WHEN HE
WAS ADMINISTRATIVELY CHARGED.
I.
Appellate courts have a "limited role" in reviewing
administrative agency decisions. In re Stallworth, 208 N.J. 182,
194 (2011). An agency's judgment may only be reversed if it was
"arbitrary, capricious, [] unreasonable, or [] not supported by
substantial credible evidence in the record as a whole." Ibid.
(second alteration in original) (quoting Henry v. Rahway State
Prison, 81 N.J. 571, 579-80 (1980)). "The application of those
principles is not limited to whether a violation warranting
discipline has been proven; this 'deferential standard applies to
the review of disciplinary sanctions as well.'" Id. at 195
(quoting In re Herrmann, 192 N.J. 19, 28 (2007)).
II.
Pickett and Rosa's testimony was straightforward. Zaghloul
lost his temper when told not to refer to Pickett by anything
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other than her name, and when Pickett and Rosa criticized his
work. He used foul language, engaged in threatening and
inappropriate behavior, including knocking over a chair as he left
the room and stormed into his superior's office, disregarding the
supervising officer's order to leave the building. Uncontroverted
credible evidence proved the charges.
The decision of the ALJ, adopted by the Commission, enjoys a
presumption of reasonableness. In light of the testimony, it was
not arbitrary, capricious, or unreasonable. It was supported by
substantial, credible evidence in the record as a whole. See
Stallworth, supra, 208 N.J. at 194.
We further note that on the last day of the hearing, counsel
did not request that the ALJ carry the matter so he might subpoena
Caraballo and Golden. Zaghloul had the option to issue his own
subpoenas for those witnesses if he viewed them as critical to his
defense and could have done so after the first day of the hearing.
Obviously, Zaghloul had the opportunity to testify, but proceeded
instead on the theory that the police department's proofs were
inadequate. That he now regrets the strategic choices he made
does not make the Commissioner's decision erroneous.
III.
Benavente mentioned that Zaghloul had been assigned to patrol
duty and that the deputy chief said it happened because of the
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incident. No evidence was introduced that the transfer was action
taken against him. Although hearsay is admissible in an OAL
proceeding, we know nothing about the particulars of the transfer.
See N.J.A.C. 1:1-15.5(b) ("Notwithstanding the admissibility of
hearsay evidence [in administrative proceedings] some legally
competent evidence must exist to support each ultimate finding of
fact . . ."). Without that information, Zaghloul's argument that
he has been punished twice for the same offense is untenable. The
details regarding his reassignment are simply unknown. He had
worked in the office where the incident occurred only a short
time, and we cannot speculate as to the conditions of that
assignment, or the actual circumstances surrounding his return to
patrol detail. The connection Zaghloul makes between the
reassignment and punishment lacks record support.
It is commonplace that a police officer is a "special kind
of public employee" who "represents law and order to the citizenry
and must present an image of personal integrity and dependability
in order to have the respect of the public." In re Carter, 191
N.J. 474, 486 (2007) (quoting Twp. of Moorestown v. Armstrong, 89
N.J. Super. 560, 566 (App. Div. 1965), certif. denied, 47 N.J. 80
(1966)). That high standard is one a police officer voluntarily
undertakes upon acceptance of his employment in the service of the
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public. In re Phillips, 117 N.J. 567, 577 (1990) (citing In re
Emmons, 63 N.J. Super. 136, 142 (App. Div. 1960)).
In disciplinary actions involving police officers, "courts
should take care not to substitute their own views of whether a
particular penalty is correct for those of the body charged with
making that decision." Carter, supra, 191 N.J. at 486.
Thus, we do not find fault with the Commission's decision
that the ten-day suspension was proper. In light of Zaghloul's
conduct on the day in question, the Commission's decision is not
arbitrary, unreasonable, or capricious.
Affirmed.
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