                            NOT FOR PUBLICATION WITHOUT THE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-5313-16T2

IN THE MATTER OF
ANTONIO CRUZ,
CITY OF NEWARK.
___________________________

                Argued March 7, 2019 – Decided April 15, 2019

                Before Judges Simonelli, Whipple and Firko.

                On appeal from the New Jersey Civil Service
                Commission, Docket No. 2017-1988.

                Craig S. Gumpel argued the cause for appellant Antonio
                Cruz.

                France H. Casseus, Assistant Corporation Counsel,
                argued the cause for respondent City of Newark
                (Kenyatta K. Stewart, Corporation Counsel, attorney;
                France H. Casseus, on the brief).

                Pamela N. Ullman, Deputy Attorney General, argued
                the cause for respondent Civil Service Commission
                (Gurbir S. Grewal, Attorney General, attorney; Melissa
                Dutton Schaffer, Assistant Attorney General, of
                counsel; Pamela N. Ullman, on the brief).

PER CURIAM
      Appellant Antonio Cruz appeals from the July 14, 2017 final decision of

the Civil Service Commission (Commission) upholding the City of Newark's

(City) Final Notice of Disciplinary Action (FNDA) removing him from his

employment. We affirm.

                                        I.

      On October 27, 2014, appellant began his employment with the City as a

firefighter. He reported to work on June 25, 2016, and fell asleep while having

a cup of coffee with Captain Orlando Alvarez. After appellant spilled his coffee,

Alvarez told him to clean it up but appellant only partially complied and left the

kitchen. Shortly thereafter, the fire station received an emergent phone call from

St. James Hospital and the firefighters on duty reported to the fire truck with the

exception of appellant, who was assigned as the driver that day. The firefighters

blew the fire truck's horn, sounded the siren, paged appellant on the intercom,

and searched for him, to no avail. He failed to report to the fire truck and the

crew left without him in light of the emergency. After returning to the fire

house, Captain Alvarez and others looked for appellant but could not find him,

prompting Alvarez to notify his superior, Battalion Chief Steven P. DeCeuster.

Eventually, appellant was found asleep in an empty room at the firehouse.




                                                                           A-5313-16T2
                                        2
      DeCeuster and Alvarez tried to awaken appellant by shouting his name

and kicking his boot, which evoked a limited response. Based upon appellant's

condition, DeCeuster suspected he was under the influence of a controlled

dangerous substance (CDS) and unfit for duty.       Appellant was ordered to

undergo drug and alcohol testing at Concentra Medical Center in Elizabeth that

morning, which yielded positive results for alcohol, cocaine, benzodiazepines

and alprazolam, which were not prescribed. 1 He was suspended "based on being

unfit for duty" on June 25, 2016.

      On June 27, 2016, the City served a Preliminary Notice of Disciplinary

Action (PNDA) charging appellant with violations of the New Jersey

Administrative Code, the Newark Fire Department General Orders, and the

Newark Fire Department Rules and Regulations. Appellant requested a limited




1
   Benzodiazepines are "[a] class of compounds with antianxiety, hypnotic,
anticonvulsant, and skeletal muscle relaxant properties." Stedman's Medical
Dictionary 213 (28th ed. 2006).

Alprazolam is prescribed "to treat anxiety disorders and panic disorders . . . .
[and] is in a class of medications called benzodiazepines." Alprazolam,
MedicinePlus,     https://medlineplus.gov/druginfo/meds/a684001.html      (last
visited March 22, 2019).



                                                                        A-5313-16T2
                                       3
purpose hearing, which took place on July 25, 2016. The City decided to

continue appellant's suspension without pay.

      Detective Dwayne Cobbs of the Department of Public Safety, Fire

Division, Internal Affairs, conducted an investigation and determined that

appellant was unfit for duty.    Following a three-day departmental hearing,

appellant was found guilty of the charges set forth in the PNDA and on

December 16, 2016, the City issued a FNDA finding that appellant was

terminated from his position as a firefighter effective June 25, 2016. The FNDA

sustained the charges, finding appellant: failed to perform his duties; performed

his duties incompetently and inefficiently; neglected his duties; had chronic or

excessive absenteeism; demonstrated conduct unbecoming a public employee;

and other sufficient cause.

      Appellant appealed, and the matter was transferred to the Office of

Administrative Law (OAL) for a hearing as a contested case. After a two-day

hearing, the Administrative Law Judge (ALJ) issued an Initial Decision on May

4, 2017, reversing appellant's termination and holding that the City should have

offered him a letter of conditional employment before removing him. In the

City's exceptions filed with the Commission, the City argued issuance of a letter

of conditional employment was purely discretionary. The Commission issued a


                                                                         A-5313-16T2
                                       4
Final Administrative Action on July 14, 2017, upholding appellant's removal

effective June 25, 2016, finding that "[w]hile . . . PDP-19A[2] provided for the

issuance of a letter of conditional employment, [the City] has persuasively

argued that the policy was discretionary." The Commission further noted that

"second chances for drug related infractions are not generally afforded public

safety employees, who, as compared with non-public safety employees, are held

to a stricter standard of conduct." Thus, the Commission concluded that:

             any use of an illegal drug constitutes a violation of the
             law and of a [firefighter's] duty to exhibit conduct, both
             on and off duty, that is commensurate with his position.
             Here, along with illegal drugs, the appellant had alcohol
             in his system (albeit not over the legal limit).
             Moreover, the actual alleged misconduct, sleeping on
             duty and missing assignments, was not disputed.
             Finally, the appellant was not a long term employee as
             he had been serving as a [firefighter] for less than two
             years prior to the date in question. Under these
             circumstances, the appellant's offense is sufficiently
             egregious to warrant his removal. Accordingly, the
             Commission concludes that the penalty imposed by the
             appointing authority is neither unduly harsh nor
             disproportionate to the offense and should be upheld.

This appeal followed.




2
    PDP-19A contains the City's drug testing policy.
                                                                          A-5313-16T2
                                         5
                                       II.

      On appeal, appellant challenges the Commission's decision as arbitrary,

capricious, and unreasonable because it failed to adopt the ALJ's findings of fact

and conclusions of law; the City failed to adhere to its long-standing policy of

providing conditional letters of employment; appellant's conduct was not

sufficiently egregious to warrant removal; he had no notice that such conduct

was prohibited; and his removal was disproportionate and shocking to one's

sense of fairness. We disagree with these contentions.

      "Appellate courts have 'a limited role' in the review of [agency]

decisions."   In re Stallworth, 208 N.J. 182, 194 (2011) (quoting Henry v.

Rahway State Prison, 81 N.J. 571, 579 (1980)). "[A] 'strong presumption of

reasonableness attaches to [an agency decision].'" In re Carroll, 339 N.J. Super.

429, 437 (App. Div. 2001) (quoting In re Vey, 272 N.J. Super. 199, 205 (App.

Div. 1993)). "In order to reverse an agency's judgment, [we] must find the

agency's decision to be 'arbitrary, capricious, or unreasonable, or [] not

supported by substantial credible evidence in the record as a whole. '"

Stallworth, 208 N.J. at 194 (second alteration in original) (quoting Henry, 81

N.J. at 579-80; In re Proposed Quest Acad. Charter Sch. of Montclair Founders

Grp., 216 N.J. 370, 385 (2013)).


                                                                          A-5313-16T2
                                        6
            In determining whether agency action is arbitrary,
            capricious, or unreasonable, [we] must examine:

                  (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.

            [Stallworth, 208 N.J. at 194 (quoting In re Carter, 191
            N.J. 474, 482-83 (2007)).]

      We "may not substitute [our] own judgment for the agency's, even though

[we] might have reached a different result." Ibid. (quoting Carter, 191 N.J. at

483). "This is particularly true when the issue under review is directed to the

agency's special 'expertise and superior knowledge of a particular field.'" Id. at

195 (quoting In re Herrmann, 192 N.J. 19, 28 (2007)). Furthermore, "[i]t is

settled that '[a]n administrative agency's interpretation of statutes and

regulations within its implementing and enforcing responsibility is ordinarily

entitled to our deference.'" E.S. v. Div. of Med. Assistance & Health Servs.,

412 N.J. Super. 340, 355 (App. Div. 2010) (second alteration in original)

(quoting Wnuck v. N.J. Div. of Motor Vehicles, 337 N.J. Super. 52, 56 (App.


                                                                          A-5313-16T2
                                        7
Div. 2001)). "Nevertheless, 'we are not bound by the agency's legal opinions.'"

A.B. v. Div. of Med. Assistance & Health Servs., 407 N.J. Super. 330, 340 (App.

Div. 2009) (quoting Levine v. State, Dep't of Transp., 338 N.J. Super. 28, 32

(App. Div. 2001)). "Statutory and regulatory construction is a purely legal issue

subject to de novo review." Ibid.

      The burden of proving that an agency's action is arbitrary, capricious, or

unreasonable is on the challenger. Bueno v. Bd. of Trs., Teachers' Pension &

Annuity Fund, 422 N.J. Super. 227, 234 (App. Div. 2011).

      Appellant first argues that the Commission's decision was arbitrary,

capricious, and unreasonable because it failed to adopt the ALJ's findings of fact

and conclusions of law. This argument is clearly without merit, as it is well-

established that "[t]he Commission has de novo review over public employee

disciplinary matters." In re Restrepo, Dep't of Corr., 449 N.J. Super. 409, 426

(App. Div. 2017). Thus, the Commission was not bound by the ALJ's findings.

                                       III.

      Appellant next argues that the Commission's decision was arbitrary,

capricious and unreasonable because the City was required to provide him with

an opportunity to execute a conditional letter of employment prior to his

removal. He argues that this requirement was negotiated by the City and the


                                                                          A-5313-16T2
                                        8
Newark Firefighters' Union (NFU), was incorporated into the City's disciplinary

action policies, PDP-19 and PDP-19A, and has been followed, without

exception, since its implementation. The Commission and the City both counter

that the policy regarding the use of conditional letters of employment is not

mandatory but discretionary and, therefore, the City was not obligated to execute

a conditional letter of employment to appellant. Furthermore, the City argues

that PDP-19 and PDP-19A are not negotiated policies and "[t]here is nothing in

the collective bargaining agreement between the City and NFU which addresses

a letter of conditional employment."

      As noted by the City, the only negotiated agreement between it and the

NFU is the collective negotiations agreement (CNA), which became effective

January 1, 2013, and remained in effect at the time of appellant's termination.

The CNA provides that the City has the right to suspend, discharge, or take other

disciplinary action against an employee "for good and just cause." The CNA

also provides, "[i]t is agreed that nothing herein shall in any way prohibit the

City from discharging or otherwise disciplining any employee, regardless of

his/her seniority, for good and just cause."

      Appellant argues that "good and just cause" for termination was not met

here because "the negotiated policy between the City and the [NFU]" does not


                                                                         A-5313-16T2
                                        9
permit a firefighter who tests positive for drugs the first time to be terminated.

The CNA neither sets forth a requirement that the City execute a conditional

letter of employment, nor does it contain any reference to conditional letters of

employment.      The only document that addresses conditional letters of

employment is PDP-19A, which is not a negotiated policy or an agreement

between the City and NFU.

      In addition to providing the City with the right to discharge an employee

for "good and just cause" the collective negotiations agreement provides that

"[i]t is understood that employees shall comply with all . . . rules and

regulations" and "[i]n the event that the employee(s) shall refuse to comply with

a rule or regulation . . . the City shall have the right, as its option, to suspend or

discharge the offending employee(s)." Accordingly, the City retained the right

and "option" to discharge a recalcitrant employee. Although a positive drug test

may not mandate termination, the City has the option to terminate an employee

who violates a rule or regulation, rendering such a violation "good and just

cause" for termination.

      We further reject appellant's argument that the City did not establish

"good and just cause according to law" because it failed to adhere to its

ostensibly "long-standing" policy of providing conditional letters of


                                                                              A-5313-16T2
                                         10
employment and "where feasible an employer should afford an opportunity for

rehabilitation to an employee handicapped by substance abuse[,]" quoting In re

Walden, 2009 N.J. CSC LEXIS 1559 (Dec. 4, 2009).3

      Although we have acknowledged the need to accommodate employees

handicapped by substance abuse, "[r]efusal to continue employment of a

handicapped person is lawful where employment in a particular position would

be hazardous to that individual or to others." In re Cahill, 245 N.J. Super. 397,

401 (App. Div. 1991). Saliently, we have stated that improper performance of

a firefighter's duties "can result in serious harm to persons and property" and,

where a firefighter is terminated from his employment following a positive drug

test, "[t]he nature of [his] job duties satisfies the city's burden of proving with a

reasonable certainty that his handicap would probably cause injury to himself or

to others." Id. at 400-01.

      The Commission duly relied on these principles, finding that although

"[t]he court in Cahill did consider that an employer, where feasible, should

afford an opportunity for rehabilitation to an employee handicapped by

substance abuse, it did not mandate that a [firefighter] should not be removed


3
  In his reply brief, appellant argues that he has provided evidence that he was
an "addict" as defined in PDP-19A. This does not change our analysis.


                                                                             A-5313-16T2
                                        11
for a first positive drug test." 4 Thus, while the Commission acknowledged that

there is a general preference for providing an addict with an opportunity for

rehabilitation, it found that, due to appellant's contumacious behavior in his

position as a firefighter, removal was justified.

      Further, appellant argues that the Commission should have reversed his

removal because the City had a long-standing policy of providing conditional

letters of employment to first-time drug users and he should have been treated

in accordance with that policy. In support of his argument, appellant relies on

In re Larino, 2011 N.J. CSC LEXIS 586 (May 18, 2011), where the Commission

upheld the termination of a firefighter who tested positive for marijuana and

benzodiazepines, finding that the offense was "sufficiently egregious to warrant

his removal." Id. at *16. In Larino, the Commission cited to Cahill, but noted

"[t]he fact that [the firefighter in] Cahill was provided with a 'second chance'

only demonstrates that such agreements and policies exist, but it does not require

that a second chance be given when such policies or agreements did not exist in



4
  Appellant argues there is nothing in the record to support the assertion that an
opportunity for rehabilitation is not mandated where employment in a particular
position would be hazardous. We have clearly stated that "[r]efusal to continue
employment of a handicapped person is lawful where employment in a particular
position would be hazardous to that individual or to others." Cahill, 245 N.J.
Super. at 401.
                                                                          A-5313-16T2
                                       12
the first place." Id. at *13. Appellant contends that the Commission failed to

follow its own precedent that second chances should be given whenever a policy

or an agreement exists providing for same. But, the Commission's decision in

Larino did not provide that second chances must be provided whenever a policy

exists; rather, it merely stated that a second chance is not required when such

policies do not exist. Ibid.

        In its decision, the Commission found that although "PDP-19A provided

for the issuance of a letter of conditional employment . . . the policy was

discretionary." We agree. In reaching its conclusion, the Commission noted

that PDP-19A is an addendum to PDP-19, which includes a disclaimer providing

that:

             This policy and procedure is not intended nor should it
             be construed as changing the status of an employee-at-
             will or imposing a requirement of showing of cause
             upon an adverse personnel action when not otherwise
             required by statute, contract or other provision. This
             policy is subject to modification or cancellation, by the
             City in whole or in part, at any time, and it is not
             intended nor should it be construed as providing an
             employee with past practice or vested rights.

             [(Emphasis added).]

In challenging this disclaimer, appellant argues that it is only set forth in PDP-

19 and not PDP-19A, which sets forth the policy regarding conditional letters of


                                                                          A-5313-16T2
                                       13
employment, and it "contains no disclaimer language." He also argues that the

disclaimer is unenforceable because it is not bold typed, underlined, or set off

from the rest of the policy. Appellant raises this argument for the first time on

appeal; it is not jurisdictional in nature; and does not substantially implicate the

public interest.   Zaman v. Felton, 219 N.J. 199, 226-27 (2014); State v.

Robinson, 200 N.J. 1, 20 (2009) (reiterating the principle of not considering an

issue raised for the first time on appeal absent an exception).

      Notwithstanding this established precedent, we will address the merits of

the argument. PDP-19A clearly provides that it is an addendum to PDP-19 and

it "has been implemented to supplement the current Disciplinary Action Policy,

i.e. PDP-19."      Thus, we conclude it was not arbitrary, capricious, or

unreasonable for the Commission to find that the disclaimer contained in PDP-

19 also applied to the policies in PDP-19A.

      "[A] disclaimer must be separated from or set off in a way to attract

attention[.]" Nicosia v. Wakefern Food Corp., 136 N.J. 401, 415 (1994). A

disclaimer is enforceable "when it is so written that a reasonable person against

whom it is to operate ought to have noticed it." Ibid. (quoting N.J.S.A. 12A:1-

201(10)). The reader's attention may be drawn to the disclaimer by using

different type, or by underlining or setting off the disclaimer by a different color


                                                                            A-5313-16T2
                                        14
or border. Ibid. Although the entirety of the disclaimer contained in PDP-19 is

not set off in different type, it is located on the first page of PDP-19 and is

introduced by a bolded, underlined, and capitalized heading reading,

"DISCLAIMER". Therefore, the spirit and intent of Nicosia has been satisfied.

      Appellant further argues that the City's use of conditional letters of

employment is not discretionary because the City has a long and consistent

history of offering such letters and the record fails to establish "that each and

every time a firefighter received a conditional letter, it was based on the

discretionary authority of the City." Our review of the record reveals that the

language set forth in the conditional letters of employment issued by the City

indicates they were offered to firefighters who tested positive for CDS use at the

discretion of the fire directors.

      Two of the letters appellant proffered provided that, on account of positive

drug screens, the firefighters would be terminated effective the date of the test;

but "as a result of your willingness to participate in a rehabilitation program, it

is [the fire director's] decision to hold your termination in abeyance." Based on

two other firefighters' willingness to participate in a rehabilitative program, the

fire director indicated "I will agree to continue [A.D.'s] employment with the




                                                                           A-5313-16T2
                                       15
City" and "it is my decision to hold [certain] conditions as terms for [R.S's]

continued employment with the City[.]" (Emphasis added). 5

      In addition to the language used in the conditional letters of employment,

the discretionary nature of the policy regarding such letters is set forth in the

disciplinary action policy, PDP-19, which provides: "A Department Director

may bypass the progressive discipline system and recommend the initiation of a

major disciplinary action against an employee . . . in instances where the

Director believes that the employee's conduct justifies such divergence." The

policy further sets forth the conduct which "may result in a major disciplinary

action[,]" including "[i]nability to perform duties[,]" "[c]onduct unbecoming a

public employee[,]" "[n]eglect of duty[,]" and "[v]iolation of any of the . . .

personnel policies and procedures of the City or the rules and regulations of the

employing department or agency . . . ." Each of these grounds were included in

appellant's notices of disciplinary action.




5
    Although appellant provides copies of multiple conditional letters of
employment in his appendix, he only quotes language from one letter in his
brief, the only one that does not contain discretionary language. It does provide
that the subject firefighter had previously been served with a PNDA, "which
provided for [his] removal for duties of employment[,]" thus indicating that a
positive drug test is cause for termination.
                                                                         A-5313-16T2
                                       16
        The principle of progressive discipline can be applied to downgrade the

penalty for a current offense "for an employee who has a substantial record of

employment that is largely or totally unblemished by significant disciplinary

infractions." Herrmann, 192 N.J. at 33. However,

              progressive discipline is not a necessary consideration
              when reviewing an agency head's choice of penalty
              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.

              [Ibid.]

Accordingly, progressive discipline need not apply where the appointing

authority determines that an employee's conduct "has so utterly rendered [him

or] her devoid of the trust that [the appointing authority] must place in its . . .

workers . . . ." Id. at 37. Under these circumstances, the appointing agency's

"judgment should not be lightly second-guessed." Ibid.

        In a recent Commission decision, In re Meeks, 2019 N.J. CSC LEXIS 68

(Feb. 8, 2019), cited by appellant, a City 6 firefighter was removed after being

arrested for possession of marijuana and drug paraphernalia and testing positive

for drug use. Id. at *5-6. Meeks was offered a conditional letter of employment


6
    Also a City of Newark firefighter.
                                                                           A-5313-16T2
                                         17
which provided that any violation of the terms would result in an automatic

discharge. Id. at *3-4. The letter required Meeks to "refrain from the use of

illegal drugs, and any mood-altering substance and the abuse of alcohol for the

duration of [his] career with the City." Id. at *27. Approximately two years

later, Meeks tested positive for drugs and was terminated from his position as a

City firefighter. Id. at *16-17. Meeks appealed his removal, and the ALJ issued

an initial decision, subsequently adopted by the Commission, finding that his

removal was appropriate. Appellant relies on the ALJ's initial decision, which

states "[c]onditional [l]etters of [e]mployment are used in administrative cases

where the employee has tested positive for drugs or alcohol."7 Id. at *9.

      Although the ALJ's decision in Meeks recognizes that conditional letters

of employment are sometimes used, we disagree with appellant's claim that the

City was required to offer him a conditional letter. On the contrary, the ALJ in

Meeks acknowledged that "[a]n employee may be removed for egregious

conduct without regard to progressive discipline" and "[a]bsence of judgment

alone can be sufficient to warrant termination if the employee is in a sensitive




7
   The issue before the ALJ and the Commission in Meeks, unlike this matter,
was not whether Meeks was entitled to a conditional letter of employment but
rather, whether he engaged in the alleged conduct. Id. at *2.
                                                                        A-5313-16T2
                                      18
position that requires public trust in the agency's judgment." Id. at *34-35.

Moreover, the ALJ further provided that progressive discipline is not necessary

            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.

            Thus, progressive discipline has been bypassed when
            an employee engages in severe misconduct, especially
            when the employee's position involves public safety
            and the misconduct causes risk of harm to persons or
            property.

            [Id. at *40-41 (quoting Herrmann, 192 N.J at 33).]

The holding in Meeks does not alter our analysis.

      Applying these principles, we discern no reason to disturb the

Commission's decision to affirm the penalty of removal. Because of its severity

and egregiousness, appellant's misconduct did not require application of

progressive discipline.

                                     IV.

      Next, appellant challenges the Commission's finding that his removal was

appropriate because he engaged in egregious behavior. The Commission noted

that although the concept of progressive discipline is often considered in

determining a penalty,


                                                                       A-5313-16T2
                                     19
               it is well established that where the underlying conduct
               is of an egregious nature, the imposition of a penalty up
               to and including removal is appropriate, regardless of
               an individual's disciplinary history. See Henry v.
               Rahway State Prison, 81 N.J. 571 (1980). It is settled
               that the theory of progressive discipline is not "a fixed
               and immutable rule to be followed without question."
               Rather, it is recognized that some disciplinary
               infractions are so serious that removal is appropriate
               notwithstanding a largely unblemished prior record.
               See Carter v. Bordentown, 191 N.J. 474, 484 (2007).

The Commission further noted that firefighters "hold very unique positions, and

any disregard for the law is unacceptable in a [firefighter] who operates in the

context of a paramilitary organization." In light of appellant's position as a

firefighter, the Commission found that his conduct was "sufficiently egregious

to warrant his removal." We agree.

      Appellant argues that "testing positive for a controlled substance is not

egregious conduct[,]" and does not "warrant bypassing of progressive

discipline."    The Commission and the City both counter that concepts of

progressive discipline are not appropriate in all cases.            Moreover, the

Commission argues that "[i]n this case, the Commission reasonably determined

that a [firefighter] who came to work under the influence of drugs and alcohol

. . . caused a substantial risk of harm to persons or property and should therefore

be removed from employment."


                                                                           A-5313-16T2
                                         20
      The concept of progressive discipline provides that "a firefighter's prior

disciplinary record [is] 'inherently relevant' to determining an appropriate

penalty for a subsequent offense" and "reject[s] the argument that a proposed

sanction must be based on the severity of the current infraction alone." Carter,

191 N.J. at 483. Thus, our courts have found that "just cause for dismissal could

be found where there ha[s] been 'habitual tardiness' or 'chronic misconduct'" and

"an employee's past record [can] properly be considered in fashioning the

'appropriate penalty for the current specific offense.'" Stallworth, 208 N.J. at

195-96 (quoting W. New York v. Bock, 38 N.J. 500, 522-23 (1962)).

      Although appellant was not working in a law enforcement capacity, we

have recognized that a firefighter's position is of such a nature that the "negligent

or improper performance of the duties of a firefighter can result in serious harm

to persons and property . . . ." In re Jackson, 294 N.J. Super. 233, 236 (App.

Div. 1996). Moreover, as noted in the Final Administrative Action, "[t]he

Commission has long recognized that [firefighters] hold very unique positions,

and any disregard for the law is unacceptable in a [firefighter] who operates in

the context of a paramilitary organization." See also Larino, 2011 N.J. CSC

LEXIS at *15. A firefighter's positive drug test constituted conduct that was

sufficiently egregious to warrant removal because "any use of an illegal drug


                                                                             A-5313-16T2
                                        21
constitutes a violation of the law and of a [firefighter's] duty to exhibit conduct,

both on and off duty, that is commensurate with his position." Ibid.; see also In

re Baker, City of E. Orange, Fire Dep't, 2011 N.J. CSC LEXIS 949, *23 (June

1, 2011) ("It is essential for the safety of the public and for the protection of

property that a firefighter not use cocaine . . . . As such, [appellant's] use of

cocaine is particularly egregious in view of the nature of his employment

. . . ."); Walden 2009 N.J. CSC LEXIS at *13 (Upholding the termination of

firefighter who was charged with driving while under the influence of alcohol,

finding that "[t]he charges are particularly egregious in light of the fact that the

appellant is a [firefighter] who holds an extremely visible position of trust.").

      We have also acknowledged the unique nature of a firefighter's position

by refusing to challenge a finding that "the negligent or improper performance"

of a firefighter's position "can result in serious harm to persons and property[,]"

and concluding that such a conclusion is "obvious to anyone even superficially

familiar with the performance of a firefighter's duties[,]" and that "[a] firefighter

under the influence of drugs cannot do the job." Cahill, 245 N.J. Super. at

400-01. Even though a firefighter does not operate in a law enforcement setting,

the position "involves public safety" and the use of drugs or alcohol while




                                                                             A-5313-16T2
                                        22
operating in that position "causes risk of harm to persons or property."

Stallworth, 208 N.J. at 197 (quoting Herrmann, 192 N.J. at 33).

      Reporting to work under the influence of alcohol and drugs, falling asleep

on duty to the point of being unresponsive, missing an emergent call, and being

unable to drive the fire truck on the day in question is inexcusable as a "first-

time positive drug test offender."8

      We maintain that "[w]ith firefighters, much as with commercial airline

pilots or brain surgeons, drug impairment increases exponentially the risk s to

others, and must correspondingly affect the extent of an employer's

accommodation efforts which may be reasonable in the circumstances."

Jackson, 294 N.J. Super. at 237. We conclude that the Commission did not act

arbitrarily, capriciously, or unreasonably in finding that Cruz's drug and alcohol


8
   Although the Commission did not consider appellant's prior disciplinary
history in reviewing his termination, the record reveals that he was previously
confronted by Captain Vincent Capriglione, who noted that while appellant was
assigned to his company, he was "regularly tardy," "always appeared tired and
slept a lot" and he "missed a few call assignments." Thus, although the drug
test, which resulted in his termination, was appellant's first positive drug test, he
had been previously disciplined for conduct similar to his conduct on June 25,
2016, which lead to his termination. Appellant therefore did have previous
instances of misconduct which had been called to his attention. See Herrmann,
192 N.J. at 30 (noting that an employee's "past record," for purposes of
progressive discipline, includes instances of misconduct that have been
previously called to the attention of the employee).


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use, and his resulting conduct on June 25, 2016, was sufficiently egregious to

warrant his removal.

                                        V.

      Appellant next argues that the Commission erred because its findings were

"inconsistent with [its] own view that an employee cannot be responsible for

conduct in the absence of notice that such conduct is prohibited." Relying on

the Commission's decision in In re Collins Newark Sch. Dist., 2017 N.J. CSC

LEXIS 239 (Apr. 6, 2017), appellant argues that "a civil service employee

cannot be held responsible for an action in the absence of a policy or regulation

to guide him."9

      In Collins, the Commission found that the Newark Public School District's

decision to suspend an appellant was not justified because the suspension

stemmed from a determination that the appellant had a duty to inform the school

district that his license was suspended, despite the absence of any written policy

requiring the same.    Id. at *4. The Commission rescinded his suspension

because there was a lack of notice, written or otherwise, that he had a



9
  Appellant also argues that "in the absence of a policy, differing interpretations
ensue as to what is appropriate." We cannot accept that he believed arriving to
work under the influence of drugs and alcohol, when he was assigned to drive
the firetruck, was appropriate.
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                                       24
responsibility to report his license suspension and "a civil service employee

cannot be held responsible for an action in the absence of a policy or regulation

to guide him." Id. at *15-16. Appellant argues that the same principle should

be applied here. We disagree.

      Although appellant contends he reasonably believed he would receive a

conditional letter of employment in lieu of termination if he tested positive for

drug or alcohol use, the issue in Collins was not whether the appellant was aware

of the degree of discipline he would receive; rather, it was whether the appellant

was aware of his responsibilities regarding the action for which he was charged.

In contradistinction, the CNA clearly provided that the City firefighters were

required to comply with the department's rules and regulations and "[i]n the

event that the employee(s) shall refuse to comply with a rule or regulation . . .

the City shall have the right, as its option, to suspend or discharge the offending

employee(s)." PDP-19A provided that "City employees shall not possess or use

any controlled dangerous substance," and PDP-19 provides that "[a]

[d]epartment [d]irector may bypass the progressive discipline system and

recommend the initiation of a major disciplinary action against an employee

. . . in instances where the [d]irector believes that the employee's conduct




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                                       25
justifies such divergence." 10 Thus, appellant was clearly aware of the City's

policy prohibiting illicit CDS use.

                                         VI.

      In his final argument, appellant argues that his removal was so

disproportionate to his conduct as to be shocking to one's sense of fairness. We

disagree. As we stated, an agency action must "be sustained unless there is a

clear showing that it is arbitrary, capricious, or unreasonable, or that it lacks fair

support in the record." Herrmann, 192 N.J. at 27-28. "That deferential standard

applies to the review of disciplinary sanctions as well." Id. at 28. "A reviewing

court should alter a sanction imposed by an administrative agency only 'when

necessary to bring the agency's action into conformity with its delegated

authority. The [c]ourt has no power to act independently as an administrative

tribunal or to substitute its judgment for that of the agency.'" Ibid. (quoting In


10
   A copy of the fire department's rules and regulations were not provided, but
were accessed at http://newarkfd.com/wp-content/uploads/2017/03/NFD-Rules-
and-Regulations.pdf. Appellant's FNDA lists the rules and regulations violated
by him, including: "Member shall . . . set examples to subordinates and peers
in dignity, sobriety, courtesy skill and the observance of discipline"; and
"Members shall not commit any act nor shall they be guilty of any omission that
constitutes neglect of duty." Although not included in the FNDA, Article
twenty-eight of the rules and regulations also provides that "[t]he addiction of
any Member to the use of intoxicating beverages, narcotics or other controlled
dangerous substances shall be considered an act against the best interests of the
Department, justifying the dismissal of the Member from the Department."
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                                         26
re Polk, 90 N.J. 550, 578 (1982)). Thus, in reviewing a dismissal action, "the

question for the court[] is 'whether such punishment is "so disproportionate to

the offense, in the light of all the circumstances, as to be shocking to one's sense

of fairness."'" Carter, 191 N.J. at 484 (quoting Polk, 90 N.J. at 578).

      Moreover, "[a]s a general rule, in reviewing administrative agency

decisions, we accord substantial deference to an agency head's choice of remedy

or sanction, seeing it as a matter of broad discretion, . . . especially where

considerations of public policy are implicated." Herrmann, 192 N.J. at 34-35

(alteration in original) (quoting Div. of State Police v. Jiras, 305 N.J. Super. 476,

482 (App. Div. 1997)).

      Although "[t]he Commission has de novo review over public employee

disciplinary matters[,]" courts "'have a limited role in reviewing a decision of an

administrative agency' and will overturn the decision only if it is 'arbitrary,

capricious or unreasonable or is not supported by substantial credible evidence

in the record as a whole.'" Restrepo, 449 N.J. Super. at 426 (quoting Henry, 81

N.J. at 579-80).

      The Commission concluded that, in light of the circumstances, appellant's

conduct was "sufficiently egregious to warrant his removal" and his removal

was "neither unduly harsh nor disproportionate to the offense and should be


                                                                             A-5313-16T2
                                        27
upheld."    In making this determination, the Commission: engaged in a

painstaking review of the ALJ's decision; analyzed the policies implemented by

the City; and considered the parties' arguments in the context of Commission

and court precedent. Consideration was also given to the nature of the offense,

the theory of progressive discipline, and appellant's position as a firefighter.

      The Commission's decision was clearly supported by the record and

removal was not "so disproportionate to the offense, in light of all the

circumstances, as to be shocking to one's sense of fairness." Herrmann, 192 N.J.

at 28-29 (quoting Polk, 90 N.J. at 578).

      The question is not whether we would have reached the same decision,

but whether the Commission's decision was "shocking" to our "sense of

fairness." We are satisfied that the Commission adequately explained its reasons

for removing appellant, and its determination in that regard was not arbitrary,

capricious, or inconsistent with applicable law.

      Affirmed.




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