                            NOT FOR PUBLICATION WITHOUT THE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-4086-17T3

IN THE MATTER OF JOSEPH
MAGLIONE, EWING TOWNSHIP
POLICE DEPARTMENT.
_______________________________

                Argued October 3, 2019 – Decided October 24, 2019

                Before Judges Fuentes, Mayer and Enright.

                On appeal from the New Jersey Civil Service
                Commission, Docket No. 2018-1233.

                Donald C. Barbati argued the cause for appellant
                Joseph Maglione (Crivelli & Barbati, LLC, attorneys;
                Donald C. Barbati and Frank Michael Crivelli, on the
                briefs).

                Susan Lynn Swatski argued the cause for respondent
                Ewing Township Police Department (Hill Wallack,
                LLP, attorneys; Susan Lynn Swatski, of counsel and on
                the brief).

                Gurbir S. Grewal, Attorney General, attorney for
                respondent Civil Service Commission (Dominic Larue
                Giova, Deputy Attorney General, on the statement in
                lieu of brief).

PER CURIAM
      Joseph Maglione appeals from a final decision of the Civil Service

Commission (Commission), upholding his removal from employment with the

Ewing Township Police Department (Department) for numerous violations of

Departmental Rules and Regulations regarding a high-risk missing child

investigation. We affirm.

      After a lengthy hearing, an administrative law judge (ALJ) accepted the

testimony from the Department's witnesses as credible. On the other hand, the

ALJ concluded Maglione's testimony, denying any violations of the

Departmental Rules and Regulations, was not credible.            The ALJ found

Maglione's

             actions or lack thereof, if not intentional, were grossly
             negligent in the handling of a high-risk missing child.
             This was compounded by his lack of candor in his
             [Internal Affairs Department] interview and calls into
             question his fitness to be a supervising officer. Such
             conduct places not only the public[,] but the
             Department at risk.

The ALJ affirmed the Department's termination of Maglione's employment.

      The hearing testimony provided by the witnesses is recited at length in the

ALJ's initial decision. We provide a summary of the ALJ's factual findings.

      On May 20, 2017, the Department received a telephone call, reporting a

missing eleven-year old child. Based on the child's age, he was deemed a "high-


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                                        2
risk" missing person.    Investigations of high-risk missing children require

officers to follow protocols set forth in the Department's Guidelines and the

Attorney General's Directives. Officers are required to search inside and outside

the residence of the missing child; treat the place where the child was last seen

as a crime scene; establish a command post; notify supervisors in the chain of

command; contact the on-call detective; notify the county's Child Abduction

Response Team (CART); and contact the K-9 unit in the Department.

      Lieutenant Maglione, the on-duty supervisor on the date of the incident,

and Officer Paul Dorio responded to the missing child call. Both officers spoke

to the missing child's parents. However, neither officer searched the interior or

exterior of the child's home and did not establish a crime scene or command post

at the residence. Nor did the officers issue a "Be on the Look Out" (BOLO)

order to notify adjacent municipalities of the missing child.

      Maglione told Dorio to call the Mercer County Prosecutor's Office and the

officer who worked in the child's school. Maglione did not instruct Dorio to

contact CART to ensure their involvement in the missing child investigation.

Nor did Maglione call his superiors regarding the child's disappearance.

      The next day, the Department first learned the child was missing. The on-

call detective contacted CART. The staff at CART said they were not contacted


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                                        3
the prior evening by either Maglione or Dorio. The on-call detective called the

child's school seeking to contact the missing child's friends. Within hours

thereafter, the juvenile was found unharmed.

      The Department initiated an internal affairs investigation into the events

related to the child's disappearance. The investigation concluded Maglione

edited Dorio's incident report several times and determined significant

information was missing from Dorio's report despite Maglione's approval of th e

document. The internal affairs investigator found Maglione had been untruthful

many times during the course of the Department's investigation.

      The ALJ upheld the Department's disciplinary charges in an April 3, 2018

Initial Decision. On May 4, 2018, the Commission accepted and adopted the

ALJ's thorough and comprehensive factual findings and legal conclusions.

      Maglione presents the following arguments on appeal:

            I. THE CIVIL SERVICE COMMISSION ERRED IN
            ACCEPTING AND ADOPTING THE INITIAL
            DECISION OF THE ALJ.      AS SUCH, THE
            COMMISSION'S DECISION MUST BE REVERSED.

            II. THE ALJ'S CREDIBILITY DETERMINATIONS
            WERE     ERRONEOUS      AND   INHERENTLY
            INCONSISTENT. GIVEN THE DETERMINATIONS
            SERVED AS THE UNDERPINNING FOR THE
            INITIAL DECISION, THE INITIAL DECISION
            SHOULD HAVE BEEN REJECTED BY THE
            COMMISSION.

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                                       4
            III. THE ALJ ERRED IN DETERMINING THE
            DEPARTMENT MET ITS BURDEN OF PROOF TO
            SUSTAIN   THE   DISCIPLINARY  CHARGES
            LODGED AGAINST MAGLIONE. THIS FURTHER
            SUPPORTED REVERSAL OF THE INITIAL
            DECISION.

            1. The ALJ failed to recognize the Department failed
            to prove Maglione should be responsible for Officer
            Dorio's deficiencies in contacting CART and/or the On-
            Call Detective.

            2. The ALJ failed to recognize the Department failed
            to prove Maglione should be responsible for Officer
            Dorio's deficiencies in the search of the missing child's
            residence.

            3. The Department did not establish Maglione had an
            imperative obligation to contact the On-Call Detective
            and establish a command post and/or crime scene.
            Moreover, the Department failed to establish Maglione
            failed to send out the required BOLO message. As such,
            the ALJ's determinations to sustain these charges
            should have been reversed.

            4. The ALJ erroneously determined the Department
            established Maglione was untruthful.

            IV. THE ALJ AND COMMISSION ERRED IN
            AFFIRMING MAGLIONE'S REMOVAL FROM
            EMPLOYMENT. SUCH A PENALTY DEFIES THE
            PRINCIPLES OF PROGRESSIVE DISCIPLINE AND
            IS "SHOCKING TO ONE'S SENSE OF FAIRNESS."

      "An appellate court affords a 'strong presumption of reasonableness' to an

administrative agency's exercise of its statutorily delegated responsibilities."


                                                                        A-4086-17T3
                                       5
Lavezzi v. State, 219 N.J. 163, 171-72 (2014) (quoting City of Newark v. Nat.

Res. Council, Dep't of Envtl. Prot., 82 N.J. 530, 539 (1980)). We will not

overturn an agency's decision "in the absence of a showing that it was arbitrary,

capricious or unreasonable, or that it lacked fair support in the evidence . . . ."

Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963).

      We give "due regard to the opportunity of the one who heard the witnesses

to judge their credibility." Logan v. Bd. of Review, 299 N.J. Super. 346, 348

(App. Div. 1997) (citing Jackson v. Concord Co., 54 N.J. 113, 117 (1969)). We

will not disturb an ALJ's credibility findings unless they were "arbitrary or not

based on sufficient credible evidence in the record as a whole." Cavalieri v. Bd.

of Trs. of PERS, 368 N.J. Super. 527, 537 (App. Div. 2004). After reviewing

the record, we find no basis to second-guess the ALJ's evaluation of witness

credibility.

      We are further satisfied that the ALJ's findings are amply supported by

the credible testimony and documentary evidence adduced during the hearing.

On the date of the juvenile's disappearance, Maglione's actions, or lack thereof,

violated multiple protocols issued by the Department, warranting imposition of

a severe penalty.




                                                                           A-4086-17T3
                                        6
        We next consider Maglione's argument that removal from office was an

inappropriate penalty and progressive discipline should have been imposed. Our

standard of review is whether the penalty "shocks one's sense of fairness." In re

Hendrickson, 235 N.J. 145, 150 (2018). "[N]either this court nor our Supreme

Court 'regard[] the theory of progressive discipline as a fixed and immutable

rule to be followed without question.'" In re Restrepo, 449 N.J. Super. 409, 425

(App. Div. 2017) (second alteration in original) (quoting In re Carter, 191 N.J.

474, 484 (2007)). "[P]rogressive discipline is not a necessary consideration

when . . . the misconduct is severe, when it is unbecoming to the employee's

position or renders the employee unsuitable for continuation in the position, or

when application of the principle would be contrary to the public interest." In

re Herrmann, 192 N.J. 19, 33 (2007). Even a single incident can be egregious

enough to warrant removal without reliance on progressive-discipline policies.

Ibid.

        Several of these considerations are applicable here.     In deciding to

terminate Maglione, the ALJ and the Commission emphasized his numerous

violations of the Department's Rules and Regulations, lack of veracity

throughout the internal affairs investigation and during the administrative

hearing, and refusal to take responsibility for his actions. The Commission


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                                       7
concluded that the substantial evidence in the record regarding Maglione's

failure to follow rules, procedures, and guidelines in searching for the high -risk

missing child warranted his termination. There is no legal or factual basis to

disturb this decision. Moreover, Maglione's absence of judgment demonstrated

gross negligence and lack of fitness to continue working in the Department. The

public's interest would not be served by implementing progressive discipline

under these circumstances.

      Having reviewed the ALJ's detailed findings, we discern no legal error in

the ALJ's decision to terminate Maglione's employment. Termination was not

disproportionate or unreasonable under the circumstances, and does not shock

our sense of fairness.

      Affirmed.




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