                                NOT FOR PUBLICATION WITHOUT THE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-4341-18T2

KIEN NHAN,

          Plaintiff-Appellant,

v.

CITY OF ATLANTIC CITY,

     Defendant-Respondent.
____________________________

                    Submitted January 21, 2020 – Decided April 17, 2020

                    Before Judges Messano, Ostrer and Susswein.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Atlantic County, Docket No. L-0107-18.

                    Jacobs & Barbone, PA, attorneys for appellant (Louis
                    Michael Barbone, of counsel and on the brief).

                    Blaney & Karavan, PC, attorneys for respondent (Frank
                    Guaracini, III, of counsel and on the brief).

PER CURIAM

          Appellant, Kien Nhan, is a former Atlantic City police sergeant who

appeals from the trial court's order upholding his termination of employment
following a de novo hearing. Nhan is a compulsive gambler. He was originally

disciplined in 2013 for various infractions, including the accumulation of

substantial gambling debts that led to suicidal statements and discharging his

service weapon. In 2015, Nhan pled guilty to departmental violations pursuant

to a settlement agreement that called for a sixty-five-day suspension without

pay. He was never permitted to carry his service weapon after the suicidal

statements.

      In 2016, the police department filed another disciplinary action based on

Nhan's lie to a therapist, Dr. Glass, during a follow up fitness-for-duty

evaluation. Nhan misrepresented that he had long since stopped gambling when

in fact he continued to gamble and had only reduced the extent of his gambling

activity.   A forensic psychologist appointed by the police department, Dr.

Guller, examined Nhan and determined that he was unfit to serve as a police

officer.

      The matter was referred for an evidentiary hearing after which the hearing

officer sustained the disciplinary charges and termination of employment.

Superior Court Judge James P. Savio conducted a de novo review of the record

and found that the disciplinary charges had been proved by a preponderance of

the evidence and that termination was appropriate.


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      Nhan claims on appeal that (1) the 2015 settlement agreement precludes

the City from imposing further discipline based on prior events, (2) there was

insufficient evidence to support his conviction for untruthfulness when he

misrepresented his ongoing gambling activity during the fitness-for-duty

evaluation, and (3) there was insufficient evidence to support the determination

he is unfit to serve as a police officer. After reviewing the record in light of the

applicable legal principles, we affirm Nhan's termination of employment

substantially for the reasons set forth in Judge Savio's detailed and well-

reasoned written opinion.

                                         I.

      We presume the parties are familiar with the facts surrounding the

disciplinary infractions, which are thoroughly recounted in Judge Savio's ten -

page single-spaced opinion. We do not repeat them here.

                                        II.

      We begin our analysis by acknowledging the legal principles that apply.

First, in a disciplinary action, the truth of the charge must be proved by a

preponderance of the evidence. In re Phillips, 117 N.J. 567, 575 (1990) (citing

Atkinson v. Parsekian, 37 N.J. 143, 149 (1962)). N.J.S.A. 40A:14-150 governs

the review of disciplinary convictions in non-civil service municipalities such


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as Atlantic City. That statute provides that the Superior Court "shall hear the

cause de novo on the record below and may either affirm, reverse[,] or modify

such conviction." N.J.S.A. 40A:14-150. In a de novo proceeding, the Superior

Court does not apply an abuse of discretion standard to the findings made by the

hearing officer. Rather, the Law Division judge makes his or her own findings

of fact based on the record below. Phillips, 117 N.J. at 578.

      Appellate courts play "a limited role in reviewing the de novo

proceeding." Id. at 579. An appellate court's "function on appeal is not to make

new factual findings but simply to decide whether there was adequate evidence

before the [Law Division] to justify its finding of guilt." Ibid. (quoting State v.

Johnson, 42 N.J. 146, 161 (1964)). The de novo findings should not be disturbed

unless we find the decision below was either (1) "arbitrary, capricious[,] or

unreasonable" or (2) that the decision was not supported "by substantial credible

evidence in the record as a whole." Ibid.

                                       III.

      We first address Nhan's claim the settlement agreement precludes the

imposition of discipline based on any prior events because the agreement

"specifically and unconditionally resolved all disputes between the parties that

had occurred from 2012 to 2015." We reject Nhan's contention.


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       In his written opinion, Judge Savio noted:

              On June 26, 2015[,] Nhan and the City of Atlantic City
              entered into a "settlement agreement and general
              release" related to the preliminary notice of disciplinary
              action dated November 27, 2013. Under the terms of
              the agreement, Nhan agreed to plead guilty to the four
              charges and accepted a suspension of six months. In
              paragraph two of the settlement agreement and general
              release, "employee, for himself, his heirs, executors,
              administrators, successors, and assigns hereby releases
              and forever discharges the City and its departments,
              clinical subdivisions . . . [.]" The release provides that
              it shall "apply to known, unknown, unsuspected and
              anticipated claims, liens, injuries and damages up to
              and including the date of the agreement."

       Nhan relies on the last sentence of the quoted portion of the settlement

agreement for the proposition that the City "released" him from the

consequences of any pre-agreement actions. The sentence Nhan relies on,

however, cannot be read in isolation but rather must be interpreted in the context

of the section of the settlement agreement concerning release of claims. That

section speaks only to Nhan's release of the City's liability. The section reads

in its entirety:

              2. Release of Claims. Employee, for himself, his heirs,
              executors, administrators, successors, and assigns
              hereby releases and forever discharges the City and its
              departments, political subdivisions, successors, and
              assigns, and their respective past, present and future
              representatives, council members, commissioners,
              officers, agents, employees, citizens, insurance

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                                          5
            carriers, successors, and assigns, and the estate(s) of
            theirs from any and all action, causes of action,
            lawsuits, claims, charges, debts, sums of money,
            accounts, covenants, contracts, demands of any nature
            whatsoever, whether in law or in equity, or with any
            individual, agency, organization, or governmental
            body, whether known or unknown, which Employee
            ever had, now has, or can, shall, or may have under any
            contract, tort or common law theory, and/or under any
            Federal, State, local statute, including but not limited to
            . . . ; and any other Federal, State, or local equal
            employment opportunity laws, regulations, or
            ordinances; or under a theory of negligence;
            interference with contract/business advantage, fraud;
            intentional infliction of emotional distress; and/or any
            other duty or obligation of any kind or description.
            This release shall apply to all known, unknown,
            unsuspected, and anticipated claims, liens, injuries, and
            damages up to and including the day and date of this
            Agreement.

      There is no comparable provision in this subsection, or in any other part

of the three-page settlement agreement, in which the City releases Nhan from

responsibility for his actions occurring before the agreement was executed. In

short, nothing in the text of the agreement precludes the City from considering

actions occurring before the settlement agreement. But even if we were to read

into the agreement a proviso whereby prior conduct could not be the basis for

future discipline, we believe Dr. Guller's psychological fitness evaluation,

conducted after the agreement was executed, provides an ample basis to support

Nhan's termination.

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                                        6
                                       IV.

      Nhan next contends the de novo court "simply refused to analyze and

determine anew whether [he] committed an act of untruthfulness." Nhan further

argues that the evidence was insufficient to prove untruthfulness, claiming that

although he admitted he lied to Dr. Glass when he said he had stopped gambling,

that lie does not rise to the level of untruthfulness within the meaning of the

applicable police department rule. 1 We disagree.

      The written opinion confirms that Judge Savio understood that the City

has the burden of proving the charges by a preponderance of the evidence. Judge

Savio also recognized the high standards that police officers meet. See, e.g.,

Phillips, 117 N.J. at 577 (opining that police officers are held to a high standard

of conduct). The court concluded that Nhan had "agreed to be truthful with

therapists to aid in their diagnosis and formulation of a plan for his return to

duty," and that Nhan "was untruthful when he responded to questions about

gambling posed by [Dr. Glass]."




1
   Atlantic City Police Department Rule 3:5-7 reads: "Employees shall not
knowingly lie, give misleading information, or falsify oral or written
communications in any official report when it is reasonable to expect that the
information may be relied upon because of the employee's affiliation with this
department."
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                                        7
      It bears noting that Judge Savio affirmed Nhan's conviction for this charge

after finding that Nhan's testimony at the hearing was "illogical," "incredible, "

and "the result of a willful lie proffered because Nhan would have this court

order his reinstatement as an Atlantic City police officer and he was willing to

say whatever he had to say to increase his chances of reinstatement."

      We conclude that Judge Savio made his own credibility findings and did

not simply defer to the hearing officer. Furthermore, defendant's admitted lie to

Dr. Glass was, without question, material and substantial, especially when

viewed in the context of a follow up fitness-for-duty examination. Kahn's fitness

depended to a great extent on how he was addressing his gambling addiction and

whether he was resisting treatment. That addiction was directly associated with

his suicidal statements and misuse of his service firearm. Even if Nhan earnestly

believed he was no longer suicidal, it was incumbent upon him to be truthful

about his gambling activities during a fitness-for-duty psychological evaluation.

We note in this regard that petitioner's gambling addiction presents risks besides

depression, suicide, and misuse of a service firearm. His addiction also makes

him more vulnerable to extortion and bribery matters of substantial concern with

respect to the duties of a sworn police officer.       We therefore reject any

suggestion that the lie he told to Dr. Glass was inconsequential.


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                                        8
      In sum, Judge Savio's ruling with respect to Nhan's untruthfulness is

supported by substantial credible evidence and was not arbitrary, capricious, or

unreasonable. Phillips, 117 N.J. at 579.

                                       V.

      Finally, Nhan contends that Judge Savino uncritically "accepted" Dr.

Guller's opinion. This contention lacks sufficient merit to warrant discussion.

Rule 2:11-3(e)(1)(E). We add only that Nhan did not present expert testimony

to counter the opinion expressed by the City's expert.

      Affirmed.




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