                     NOT FOR PUBLICATION WITHOUT THE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-3038-16T3

IN THE MATTER OF
FRANK HARKCOM,
BAYSIDE STATE PRISON,
DEPARTMENT OF CORRECTIONS.
____________________________

           Argued July 10, 2018 – Decided August 31, 2018

           Before Judges O'Connor and Moynihan.

           On appeal from the New Jersey Civil Service
           Commission, Docket No. 2016-2769.

           William G. Blaney argued the cause for
           appellant Frank Harkcom (Blaney & Karavan, PC,
           attorneys; John R. Dominy, of counsel and on
           the brief).

           Adam K. Phelps, Deputy Attorney General,
           argued the cause for respondent Bayside State
           Prison (Gurbir S. Grewal, Attorney General,
           attorney;   Jason  W.   Rockwell,   Assistant
           Attorney General, of counsel; Adam K. Phelps,
           on the brief).

           Alan C. Stephens, Deputy Attorney General,
           argued the cause for respondent Civil Service
           Commission   (Gurbir   S.  Grewal,   Attorney
           General, attorney; Alan C. Stephens, on the
           statement in lieu of brief).

PER CURIAM
       Frank Harkcom appeals from the Civil Service Commission's

final    administrative    action   upholding   the   administrative      law

judge's (ALJ's) initial decision removing Harkcom from employment

as a senior corrections officer with the New Jersey Department of

Corrections (DOC).      He argues: the ALJ, by denying his motion for

a directed verdict, shifted the burden of proof to him, effectively

forcing him to testify; and that the "Commission's wholesale

adoption of the [ALJ's initial decision] improperly relied" on

prior disciplinary infractions which the ALJ excluded for purposes

of    determining   a   penalty.    We   determine    the   motion   at   the

conclusion of the DOC's case was mistakenly denied and reverse.

       In a disciplinary action that preceded the matter here under

review, Harkcom was removed from service following his arrest for

both suspicion of and driving under the influence, and for reckless

driving.     After he was found guilty of reckless driving only,

resulting in a driver's license suspension, his removal was reduced

to a ten-day suspension.      He was subsequently required to reapply

for employment as an officer with the DOC.1

       Based on its review, the DOC preferred charges against Harkcom

alleging he falsified his reapplication by failing to report: a



1
    Harkcom does not challenge the DOC's reapplication requirement.



                                     2                               A-3038-16T3
1990 still-active final restraining order (FRO) issued against

him;2 harassment charges lodged in 2012 and 2013; and that he lost

his driver's license "due to reckless driving."3                Harkcom was

charged   with:   conduct   unbecoming    an   employee,     N.J.A.C.    4A:2-

2.3(a)(6);   other   sufficient    causes,     N.J.A.C.     4A:2-2.3(a)(12);

falsification:    intentional     misstatement       of   material    fact    in

connection with work, employment application, attendance, or in

any   record,   report   investigation,      84-17    (as   amended)    (C-8);

conduct unbecoming an employee, (C-11); prohibited by law from

possessing or using a firearm (law enforcement personnel), (D-23);

and violation of rule, regulation, policy, procedure, order or

administrative decision, (E-1).

      In its case-in-chief, a DOC Custody Recruitment Unit sergeant

who   regularly   conducted   investigations         of   employees    seeking

reinstatement, including Harkcom, identified database printouts

from the New Jersey Automated Complaint System (ACS) and the Family

Automated Case Tracking System (FACTS) that had been supplied to



2
 Although mentioned extensively by the Commission and DOC in their
merits briefs, we note the failure to disclose the temporary
restraining order (TRO) that preceded the FRO was not included in
either the preliminary or final notices of disciplinary action.
3
  The copy of the reapplication provided to us reveals Harkcom
disclosed that his license was suspended for six months and that
the suspension was current.    The ALJ did not make a finding
regarding this allegation.

                                    3                                  A-3038-16T3
him by other officers.      These documents – admitted into evidence

over Harkcom's hearsay objection because, according to the ALJ,

they were relied on by the sergeant in making his recommendation

that Harkcom's application not move forward – were alleged by the

DOC to show proof that Harkcom had knowledge of the 1990 FRO and

the 2012 and 2013 harassment charges.              Harkcom's knowledge of

these three incidents – undisclosed by him when he completed his

reapplication – was a required element of the DOC's charges

inasmuch as Harkcom averred he never had notice of same.              During

the DOC's case-in-chief, Harkcom moved the FRO into evidence.               He

highlighted that the blank portion of the FRO addressing service

of the order was not completed and contended the document did not

show that he was served.

    In moving for a directed verdict at the conclusion of the

DOC's case, Harkcom argued the DOC had not produced any competent

evidence – other than the FRO which did not contain information

about service on him – and that the residuum rule precluded a

finding for the DOC whose hearsay evidence failed to prove that

Harkcom   had   requisite   knowledge   of   the    charges   and   the   FRO

undisclosed on his reapplication.

    The ALJ concluded the hearsay nature of the database records

went "to the overall weight" he would give them at the conclusion

of the case.    He continued:

                                   4                                 A-3038-16T3
            I don't view the [r]esiduum [r]ule to have
            hearsay documents carry the day for a motion
            to dismiss.

                 Furthermore as we all know in this
            tribunal our job is to gather the evidence,
            to hear testimony to -- as you pointed out,
            to admit competent documents to make a
            determination on those documents and to get
            into a posture where if necessary, you know,
            Civil Service Commission, I know right now we
            don't necessarily have a Civil Service
            Commission, but the way the procedure works
            is the Civil Service Commission and then if
            necessary an Appellate Division can review the
            record and I am further going to deny the
            motion because if -- in my opinion if we didn’t
            and the case gets appealed and we get remanded
            for further testimony and I would like to
            avoid that step if, you know, if the Appellate
            Division overrules me based on the denial of
            the motion I can live with that. I'd rather
            not have to be here six months from now
            rehearing a part of this so for that -- for
            those two reasons I'm going to deny the
            motion.

      Echoing an argument made during the motion that it would be

"patently unfair" to require Harkcom to take the stand to refute

charges that were sustained only by hearsay, effectively allowing

the   DOC   to   present    competent   evidence   from   Harkcom   himself,

Harkcom's counsel called his client to testify only because his

motion was denied.         That testimony formed the basis for a large

segment of the ALJ's findings.

      In considering all the evidence after both parties rested,

the ALJ found the sergeant "relied on [the ACS and FACTS] printouts



                                        5                            A-3038-16T3
to determine that [Harkcom] had knowledge of the [2012 and 2013]

harassment charges, and the FRO, and therefore falsified his

reapplication by omitting the same."      He noted the sergeant

          had no personal knowledge of whether [Harkcom]
          was aware of the harassment complaints but did
          indicate that they appeared to be signed by a
          citizen, not law enforcement. Upon review of
          the 2012 complaint, [the sergeant] determined
          the alleged perpetrator was a Mr. W, who
          resided at . . . a location [Harkcom] did not
          reside at during the time frame. . . .

               [The sergeant] reviewed a [c]ertified
          [c]opy of the [r]estraining [o]rder provided
          by [Harkcom's] counsel and maintained the
          position that even though it lacked any
          indication that it was served on [Harkcom]
          that he believed [Harkcom] was served. He had
          no reason to doubt the accuracy of the
          [FACTS].

     Although the ALJ concluded Harkcom failed to include in his

reapplication two other charges originally set forth in his 1997

application,4   the   ALJ's   findings   that   Harkcom   knew   of   the

harassment charges and FRO were based on Harkcom's testimony – not

on the evidence adduced during the DOC's case:

               I do not [find Harkcom] to be a credible
          witness and his testimony regarding his
          knowledge of the 1990 TRO and FRO, as well as
          the 2012 and 2013 [harassment] complaints
          filed   against  him,   is  not   believable.

4
  Harkcom listed a 1981 criminal mischief conviction and 1989
disorderly conduct offense in his 1997 initial DOC application but
did not include them in his reapplication. These charges do not
appear in either the preliminary or final notice of disciplinary
action.

                                   6                             A-3038-16T3
           [Harkcom] testified that he did not know about
           the 1990 TRO and FRO, or the 2012 and 2013
           harassment complaints when he reapplied for
           employment in 2015.    However, [Harkcom] was
           aware of the 1990 restraining orders even
           though he denies he was served with the TRO
           or FRO. Even if taken as true that he was not
           served the documents, [Harkcom] admitted his
           ex[-]wife told him about the TRO, and that he
           knew the Salem Sheriff had delivered something
           to his parents' house. That [Harkcom] was not
           aware of or simply forgot about an incident
           serious enough to [rise] to the level of a TRO
           and FRO being entered against him is not
           credible.

                Similarly, [Harkcom] testified that he
           did not purposely fail to disclose the 2012
           and 2013 harassment complaints because he was
           never aware of them. By his own admission,
           however, [Harkcom] went to [c]ourt, and
           mediation, to have the harassment complaints
           dismissed. As a result, I FIND as FACT that
           [Harkcom] was aware of the 1990 TRO and the
           FRO and also the 2012 and 2013 [harassment]
           charges filed against him and [failed] to
           disclose them on his 2015 reapplication.

      Concluding        the    DOC     proved     the      conduct      unbecoming,

falsification      and    other      sufficient     cause    charges,     the     ALJ

commented that Harkcom's assertions – the DOC failed to prove the

charges against him by credible, competent evidence; the omissions

on his reapplication were inadvertent, done without knowledge of

the   existence    of    the   omitted        incidents;    the   DOC    failed    to

authenticate the database documents; and those documents failed

to indicate Harkcom received notice of the omitted incidents –

"would   have   some     merit"      if   Harkcom   had     testified     that    the

                                          7                                 A-3038-16T3
harassment and domestic violence incidents had not occurred and

the DOC was unable to corroborate the incidents.        The ALJ found:

             The   documents   presented,   however,   were
             obtained during the course of [the sergeant's]
             background investigation. There has been no
             evidence that [the sergeant] or anyone else
             manufactured these documents or that [the
             sergeant] harbored any ill will toward
             [Harkcom]. Furthermore, [Harkcom] testified
             as to the events surrounding the documents in
             question which gives this tribunal the ability
             to more fully rely upon these documents.

      We recognize our "limited role" in reviewing the Commission's

final decision.     Henry v. Rahway State Prison, 81 N.J. 571, 579

(1980).      "An appellate court affords a 'strong presumption of

reasonableness' to an administrative agency's exercise of its

statutorily delegated responsibilities."        Lavezzi v. State, 219

N.J. 163, 171 (2014) (quoting City of Newark v. Nat. Res. Council,

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

disturb an administrative agency's determinations or findings

unless there is a clear showing that (1) the agency did not follow

the   law;    (2)   the   decision   was   arbitrary,   capricious,    or

unreasonable; or (3) the decision was not supported by substantial

evidence."    In re Application of Virtua-West Jersey Hosp. Voorhees

for a Certificate of Need, 194 N.J. 413, 422 (2008).          See also

Circus Liquors, Inc. v. Governing Body of Middletown Twp., 199

N.J. 1, 9-10 (2009).      "We may not vacate an agency determination


                                     8                          A-3038-16T3
because of doubts as to its wisdom or because the record may

support more than one result[,]" In re N.J. Pinelands Comm'n

Resolution PC4-00-89, 356 N.J. Super. 363, 372 (App. Div. 2003),

but are "obliged to give due deference to the view of those charged

with the responsibility of implementing legislative programs,"

ibid.

     "The burden of demonstrating that the agency's action was

arbitrary,     capricious    or   unreasonable    rests    upon     the   [party]

challenging the administrative action."               In re Arenas, 385 N.J.

Super. 440, 443-44 (App. Div. 2006); see also McGowan v. N.J.

State Parole Bd., 347 N.J. Super. 544, 563 (App. Div. 2002); Barone

v. Dep't of Human Servs., 210 N.J. Super. 276, 285 (App. Div.

1986), aff'd, 107 N.J. 355 (1987).

     We first note that Harkcom's motion for a directed verdict,

made at the conclusion of the DOC's case, was actually a motion

for an involuntary dismissal – the administrative equivalent of a

motion under Rule 4:37-2(b).            See Altomare v. Cesaro, 70 N.J.

Super.   54,    56   (App.   Div.     1961)    (recognizing    a    motion     for

involuntary     dismissal    occurs    "[a]t    the    close   of   plaintiff's

proofs" while a directed verdict takes place "at the close of the

entire case"); see also Brill v. Guardian Life Ins. Co. of Am.,

142 N.J. 520, 535-36 (1995) (discussing the difference between



                                        9                                 A-3038-16T3
involuntary dismissal, directed verdict, judgment notwithstanding

the verdict, and summary judgment).

       Although the DOC was not bound by the rules of evidence in

the    administrative     proceeding,         N.J.S.A.     52:14B-10(a)(1),      and

hearsay – subject to the ALJ's discretion                    – was admissible,

N.J.A.C. 1:1-15.5(a), "some legally competent evidence must [have]

exist[ed] to support each ultimate finding of fact to an extent

sufficient to provide assurances of reliability and to avoid the

fact   or   appearance     of    arbitrariness,"         N.J.A.C.   1:1-15.5(b).

"Hearsay    may   be    employed    to   corroborate       competent    proof,    or

competent proof may be supported or given added probative force

by hearsay testimony."          Weston v. State, 60 N.J. 36, 51 (1972).

"But in the final analysis for a court to sustain an administrative

decision, which affects the substantial rights of a party, there

must be a residuum of legal and competent evidence in the record

to support it."        Ibid.

       The DOC does not contend that the database documents were

non-hearsay or exceptions to the hearsay rule.                Indeed, no witness

testified to qualify the database documents as admissible non-

hearsay or hearsay exceptions, or to authenticate those documents.

As such, the DOC failed to present competent evidence in its case-

in-chief    to    prove   the   charges       based   on    the   two   harassment

complaints or the FRO.             The admitted FRO, arguably competent

                                         10                                A-3038-16T3
evidence, contained no information to prove Harkcom's knowledge

of same.    The service section of the FRO was not completed; as

such, no knowledge-related deduction could be drawn from that

document.    Harkcom's knowledge of the harassment complaints and

FRO was proved by hearsay alone.      Absent competent evidence of

that required element of the DOC's charges, Harkcom's motion should

have been granted.     See Pitts v. Newark Bd. of Educ., 337 N.J.

Super. 331, 340 (App. Div. 2001) (considering a motion under Rule

4:37-2(b), and concluding dismissal was appropriate when evidence

of an essential element of a plaintiff's case could not rationally

be found by the fact-finder).    The ALJ's denial of the motion was

not supported by the evidence.    We view the ruling as "clearly a

mistaken one and so plainly unwarranted that the interests of

justice demand intervention and correction."     Clowes v. Terminix

Int'l, Inc., 109 N.J. 575, 588 (1988) (quoting State v. Johnson,

42 N.J. 146, 162 (1964)).

            While this feeling of "wrongness" is difficult
            to define, because it involves the reaction
            of [a] trained judge[] in the light of [the
            judge's] judicial and human experience, it can
            well be said that that which must exist in the
            reviewing mind is a definite conviction that
            the judge went so wide of the mark, a mistake
            must have been made.          This sense of
            "wrongness" can arise in numerous ways -- from
            manifest lack of inherently credible evidence
            to support the finding, obvious overlooking
            or underevaluation of crucial evidence, a
            clearly unjust result, and many others.

                                 11                          A-3038-16T3
              [Id. at 588-89 (quoting Johnson, 42 N.J. at
              162).]

     We recognize evidence introduced by the DOC in its case-in-

chief included proof that Harkcom failed to disclose his criminal

mischief charge and conviction from 1981 and his 1989 disorderly

conduct   –    divulged   in    his   initial   DOC   application   –   on   his

reapplication.5      The ALJ ultimately found Harkcom's failure to

disclose those incidents supported the DOC's charges, but did not

mention them in deciding the motion.              Although those charges –

proved by competent evidence – could have buttressed both a denial

of defendant's motion and an ultimate finding of falsification and

conduct unbecoming, the DOC did not include those incidents in the

preliminary     or   final     notices   of   disciplinary   action;    it   was

improper to consider them for any purpose.

     While we disagree with Harkcom's argument that the denial of

his motion "improperly shifted the burden of proof" to him and

required his testimony,6 we determine the judge should have granted


5
  Harkcom's 1997 application was admitted into evidence in the
DOC's case-in-chief over Harkcom's counsel's objection who argued
the criminal mischief and disorderly conduct charges from the
1980s "can't be [relevant] because he's not charged with [them]."
The ALJ admitted the document stating, "I'm certainly going to
hear whatever arguments you have with regard to the weight and the
relevancy of it when I render a decision."
6
  In our view, after the ALJ denied his motion, instead of
testifying, Harkcom could have preserved his involuntary dismissal
argument for appeal and rested.

                                         12                             A-3038-16T3
the motion based on the DOC's evidence – without considering

Harkcom's testimony.       See Verdicchio v. Ricca, 179 N.J. 1, 30-31

n.4 (2004) (commenting that the "better practice" is for a trial

court to decide a Rule 4:37-2(b) motion at the conclusion of

plaintiff's proofs, in that a "reservation requires defendant to

put forth a case," and that the ultimate ruling on the motion

"must disregard evidence adduced on the defense case").             The case

should not have proceeded past Harkcom's motion; as such we reverse

the decisions by the ALJ and the Commission removing him from

DOC's employ.

     Because    of   our   reversal,   we   need   not   address   Harkcom's

argument that the ALJ improperly used his prior disciplinary

infractions, which had been excluded for purposes of determining

a penalty, and that the Commission adopted wholesale the ALJ's

sanction.

     Reversed.




                                   13                                A-3038-16T3
