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                   APPROVAL OF THE APPELLATE DIVISION
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     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-3257-15T4


IN THE MATTER OF RICHARD C.
WILLIAMS, JR.



           Submitted April 23, 2018 – Decided June 27, 2018

           Before Judges Ostrer and Rose.

           On appeal from the New Jersey Civil Service
           Commission, CSC Docket No. 2011-1335.

           Blaney & Karavan, PC, attorneys for appellant
           (Frank Guaracini, III, on the brief).

           Levin   Pisetzner   Levin,    attorneys   for
           respondent (Joseph A. Levin, on the brief).

PER CURIAM

     This matter returns to us after a remand to the Civil Service

Commission ("Commission") "for a de novo hearing and initial

decision" before a different administrative law judge ("ALJ"),

following the disqualification of the first ALJ because of a

conflict of interest.      In re Richard C. Williams, Jr., No. A-0837-

11 (App. Div. Aug. 6, 2013) (slip op. at 11), certif. denied, 217

N.J. 53 (2014).     At issue is the City of Atlantic City's removal
of Richard C. Williams, Jr. from his firefighter position pursuant

to departmental charges, including conduct unbecoming a public

employee,   N.J.A.C.   4A:2-2.3(a)(6).   On   remand,   another   ALJ

conducted a hearing and, unlike the first ALJ, reversed the City's

termination of Williams' employment.     The City appeals from the

Commission's final decision, adopting the ALJ's decision, which

denied admission of witness testimony adduced at the hearing before

the first ALJ.   We affirm.

                                 I.

     We incorporate by reference the facts and procedural history

set forth in the second ALJ's December 21, 2015 initial decision.

In sum, the charges against Williams stem from allegations that

he exposed himself and ejaculated in front of a group of females

during an unscheduled tour of the firehouse when he was on duty.

The group was comprised of C.W. her sister, T.P., and two friends,

D.N. and A.S.1   C.W. also claimed Williams improperly allowed her

and A.S. to wear fire gear during the tour.   C.W., T.P., and D.N.

testified at the hearing before the first ALJ.

     Following remand, five years after the incident occurred, the

City filed a motion to admit into evidence the prior testimony of


1
  C.W. and D.N. were adults at the time of the incident, but T.P.
and A.S. were sixteen years old. We use initials to protect their
privacy.


                                 2                           A-3257-15T4
C.W., T.P., and D.N., claiming they were unavailable, pursuant to

N.J.R.E. 804.         Williams opposed the motion on several grounds,

including the ALJ's need to assess the witnesses' credibility

through "live-testimony."         On the first day of the hearing, the

City produced testimony from an assistant solicitor regarding his

attempts to contact the witnesses.             The judge denied the motion.

       Pertinent to this appeal,2        the solicitor acknowledged he did

not seek police assistance to locate D.N.                  Rather, he attempted

to     find    D.N.   through   social       media.        The   solicitor      sent

correspondence to D.N. via certified and regular mail advising

that    "her   appearance   [in   court]      may     be   required."      He   also

attempted to hand-deliver the letter without success.                   Eventually,

the solicitor contacted D.N.'s mother who indicated that D.N. was

in Maryland, but was "unavailable because she just had a surgical

procedure."       Telephonic attempts to contact the Maryland motor

vehicle administration were unsuccessful.                  Although he contacted

"various courts in the [S]tate of Maryland" the solicitor did not

request any record checks, nor contact the prison system.                        The

solicitor did not retain a locator service.




2
  C.W. and T.P. eventually appeared on the second day of the
hearing, but there was only enough time for C.W. to testify. The
City's motion was, therefore, rendered moot as to C.W.

                                         3                                  A-3257-15T4
     Although T.P. appeared at the second day of the hearing with

C.W., time did not permit her testimony.    T.P. did not return to

court on February 6, 2015, the third and final day of the hearing.

The solicitor contacted the mother of T.P. and C.W. who advised

that both of her daughters were moving to Georgia.    Although the

solicitor did not serve T.P. with a new subpoena for the February

hearing, he had informed her that the initial subpoena "was a

continuing subpoena."    The ALJ denied the City's renewed request

to admit the transcripts and the hearing proceeded.       The City

called C.W. as a witness.      On the third day of the hearing,

Williams testified on his own behalf, along with multiple lay and

character witnesses.

     According to Williams, at some point during the firehouse

tour, C.W. asked if she could try on gear, and started dancing

around and "wanted to do a dance with a pole."   Williams told C.W.

that she could not do so, but she asked, "[Y]ou wouldn't pay to

see us dance?"   Williams then ended the tour and escorted the four

women from the firehouse.

     C.W. testified at the hearing and gave a vastly different

version of the events.    She claimed C.W. permitted her and A.W.

to try on the firefighters' equipment, but instructed them not to

take photographs "because they can get in trouble."     C.W. asked

her friend to take a photograph of her only wearing a bra with

                                 4                          A-3257-15T4
firefighter's suspenders.      C.W. further claimed that Williams

explicitly asked whether anyone would "give him a blowjob. . . .

[and] pulled out his penis."    D.N. was "playing with him . . . to

make his penis hard" and he ejaculated.        Williams kissed D.N.'s

breasts and gave D.N. twenty dollars.

      In her written decision, the second ALJ determined C.W. was

not credible based on her "attitude and lack of candor on the

witness stand," which the ALJ found "troubling."        Moreover, the

ALJ observed various inconsistencies in C.W.'s testimony.             In

particular,

          In her initial report, C.W. s[t]ated that she
          and the other young women were dancing,
          showing their breasts, giving oral sex, and
          getting   money   from    three   firefighters
          involved.     In her later statements and
          testimony, C.W. stated that there was no oral
          sex, that there was no touching, that only one
          firefighter was involved, and that only D.N.
          received money. The sexual activity allegedly
          occurred through pants that had been unzipped.
          Then the story changed to occurring with the
          pants unbuttoned and taken down.     Moreover,
          C.W. waited two months before making any
          accusations, and then told [a City police
          aide] whom she did not know when she was
          attending municipal court.

Conversely, the ALJ found credible the testimony of Williams and

his several character witnesses.       Accordingly, the ALJ dismissed

the   violations   of   departmental   rules   and   regulations,   and

reinstated Williams to his position as a City firefighter.          Her


                                  5                            A-3257-15T4
initial decision was later deemed adopted as the Commission's

final agency decision, pursuant to N.J.S.A. 52:14B10(c), due to a

lack of quorum created by vacancies.

       The ALJ's decision also detailed her reasons for denying the

City's motion.        In doing so, she found the City "failed to show

that [T.P. and D.N.] were unavailable or were otherwise not subject

to process to compel them to testify at the hearing."               This appeal

followed.

       Although the City moved to admit the prior testimony pursuant

to N.J.R.E. 804, it primarily argues for the first time on appeal,

that    the   ALJ   abused   her   discretion   by   failing   to    admit   the

testimony     under    the   evidentiary     provisions   contained     in   the

Administrative Code, i.e., N.J.A.C. 1:1-15.1 and N.J.A.C. 1:1-

15.5.     In doing so, the City claims the New Jersey Rules of

Evidence should not have been applied here.            See N.J.A.C. 52:14B-

10(a);    N.J.A.C.      1:1-15.1(c);    N.J.R.E.     101(a)(3).        In    the

alternative, the City renews its argument that the witnesses were,

nevertheless, "unavailable" pursuant to N.J.R.E. 804.

                                       II.

       Typically, where an agency issues a final decision, our review

is limited.     Lavezzi v. State, 219 N.J. 163, 172 (2014).            We will

not disturb the final determination of an agency unless shown that

it was "arbitrary, capricious           or unreasonable, or it is not

                                        6                               A-3257-15T4
supported by substantial credible evidence in the record as a

whole."    Id. at 171 (quoting Prado v. State, 186 N.J. 413, 427

(2006)).   That deference extends to decisions relating to employee

discipline and punishment, including termination.              In re Herrmann,

192 N.J. 19, 28 (2007); see also In re Carter, 191 N.J. 474, 486

(2007).

     However, "when the lack of a quorum attributable to vacancies

cause[s]     the   agency    inaction       [in    response     to    an     ALJ's

recommendation], the current version of the deemed-adopted statute

does not require traditional deferential appellate review of the

ALJ's decision." In re Hendrickson, 451 N.J. Super. 262, 266 (App.

Div.), certif. granted, 231 N.J. 143 (2017).               Instead, we apply

the "standard of review for bench trials[,]" where we will affirm

an ALJ's factual findings "to the extent they are supported by

substantial credible evidence in the record."              Id. at 273 (second

quotation citing Zaman v. Felton, 219 N.J. 199, 215 (2014)).

     Thus, we will "not disturb the factual findings" unless we

are "convinced that they are so manifestly unsupported by[,] or

inconsistent with[,] the competent, relevant[,] and reasonably

credible   evidence   as    to   offend     the   interests    of    justice[.]"

D'Agostino    v.   Maldonado,     216   N.J.      168,   182   (2013)      (fourth

alteration in original) (quoting Seidman v. Clifton Sav. Bank,



                                        7                                  A-3257-15T4
S.L.A., 205 N.J. 150, 169 (2011)).          Additionally, we defer to

credibility determinations because the judge "'hears the case,

sees and observes the witnesses, and hears them testify,' affording

[the judge] 'a better perspective than a reviewing court in

evaluating the veracity of a witness.'"       Gnall v. Gnall, 222 N.J.

414, 428 (2015) (quoting Cesare v. Cesare, 154 N.J. 394, 412

(1998)).

      However, "No deference will be accorded to . . . legal

conclusions; they will be reviewed de novo."         In re Hendrickson,

451   N.J.   Super.   at   274   (citing   Zaman,   219   N.J.   at     216).

Nevertheless, we give substantial deference to the trial judge's

discretion on evidentiary rulings, Benevenga v. Digregorio, 325

N.J. Super. 27, 32 (App. Div. 1999), and "reverse a judgment based

on an evidentiary error only if we are convinced that the error

'was clearly capable of producing an unjust result.'"            Manata v.

Pereira, 436 N.J. Super. 330, 343-44 (App. Div. 2014) (quoting

Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 502 (1999)).

      As in Hendrickson, the ALJ's decision here was deemed adopted

because the Commission, for reasons beyond its control, could not

muster a quorum.      Applying the bench trial standard of review, we

find the second ALJ properly excluded the prior testimony of T.P.

and D.N.


                                     8                                A-3257-15T4
       Initially, we address the City's newly-minted argument that

the ALJ failed to admit the prior testimony pursuant to N.J.A.C.

1:1-15.12, under the plain error standard of review.                R. 2:10-2;

see also Pressler & Verniero, Current N.J. Court Rules, cmt. 2.1

on R. 2:10-2 (2018) (recognizing the applicability of Rule 2:10-2

in administrative appeals).       In particular, the City claims the

ALJ did make the requisite credibility evaluation in excluding the

prior testimony.     N.J.A.C. 1:1-15.12(a) provides:

            If there was a previous hearing in the same
            or related matter which was electronically or
            stenographically recorded, a party may, unless
            the judge determines that it is necessary to
            evaluate credibility, offer the transcript of
            a witness in lieu of producing the witness at
            the hearing provided that the witness'
            testimony was taken under oath, all parties
            were present at the proceeding and were
            afforded a full opportunity to cross-examine
            the witness.

            [(emphasis added).]

       The City's argument is unpersuasive.              The ALJ referenced

N.J.A.C. 1:1-15.12 in her written decision, and explicitly cited

the   credibility   issue   at   the       conclusion   of    the   solicitor's

testimony recounting his attempts to locate the witnesses.                  While

we    acknowledge   colloquy   between       counsel    and   a   judge    cannot

substitute for the judge's factual findings and legal conclusions,

Pardo v. Dominquez, 382 N.J. Super. 489, 492 (App. Div. 2006),

there was ample evidence in the record to support the ALJ's

                                       9                                  A-3257-15T4
determination that it was necessary for her to evaluate the

credibility of T.P. and D.N.

     For example, T.P.'s statement to the City's police detective

contradicted her testimony before the first ALJ.             During her

interview with the detective, T.P. identified Williams from a

photo array and specifically denied that he was involved in any

misconduct.     However, when she testified at the first hearing,

T.P. recanted that statement.      By the time she testified, T.P.'s

sister C.W. had filed a civil lawsuit against the City and Williams

Contrary   to   the   City's   claims,   D.N.'s   prior   testimony   was

inconsistent with C.W.'s version of events.          D.N. claimed C.W.

offered to perform oral sex on the firefighter, and C.W., alone,

walked around the firehouse.      Thus, the ALJ rhetorically asked at

the conclusion of the solicitor's testimony,

           If they testified one way and then changed
           their mind and testified another way, how do
           I know which one is real and which one is
           [no]t unless I have the opportunity to see
           them and see how they testify and see how they
           [a]re exposed on cross-examination? Which is
           really the heart of our system when . . .
           credibility is an issue.

     Here, the ALJ's decision denying admission of the prior

testimony rested on her explicit recognition, on the record at the

conclusion of the hearing, that "credibility is really the issue

[here]."   We thus discern no error, much less plain error, in the


                                   10                            A-3257-15T4
ALJ's evidentiary decision.   Her need to observe and hear T.P. and

D.N. testify was both implicitly and explicitly expressed on the

record and in her written decision.     Gnall, 222 N.J. at 428.

     Nor are we persuaded that the ALJ erred by failing to admit

the transcripts pursuant to the Code's "residuum rule" set forth

in N.J.A.C. 1:1-15.5(b). Although the City did not argue admission

of the prior testimony on that basis, the ALJ acknowledged the

residuum rule in her written decision.    In any event, pursuant to

N.J.A.C. 1:1-15.1(c), "All relevant evidence is admissible except

as otherwise provided [in the Code]."    Because N.J.A.C. 1:1-15.12

specifically pertains to prior testimony, the residuum rule is not

triggered here.

     Finally, we agree with the ALJ that neither T.P. nor D.N. was

shown to be unavailable within the meaning of N.J.R.E. 804.       The

City's argument rests on Rule 804(a)(4)'s catch-all provision,

defining "unavailable" to include absence from a hearing due to

"death, physical or mental illness or infirmity, or other cause,

and the proponent of the statement is unable by process or other

reasonable means to procure the declarant's attendance at trial

. . . " (emphasis added).     The City argues T.P. and D.N. were

unavailable to testify before the second ALJ due to "other cause."

Specifically, T.P. refused to comply with her continuing subpoena,



                                11                           A-3257-15T4
and D.N. could not be located.        The City's claims are belied by

the record.

     While T.P. may have been under a continuing subpoena pursuant

to N.J.A.C. 1:1-11.1(b), the record is devoid of proof that she

was, in fact, informed of the February 6, 2015 continuation date

of the hearing.    Rather, the solicitor testified that T.P. and

C.W. "said . . . they would be available for . . . future hearings."

The solicitor attempted to contact T.P. telephonically concerning

the February 6 hearing, but never spoke with T.P.       That was the

extent of his attempts to produce her for the hearing.     As the ALJ

aptly found, T.P. "responded to process at the first scheduled

hearing date, and there is no reason to believe that she would not

have been available had she been timely and personally served with

a notice to attend the hearing in February."

     We likewise agree with the ALJ's determination that the City's

efforts to locate D.N. were insufficient.       The ALJ found, "Other

than a few telephone calls to state agencies, with no written

follow-up or request, or the use of a locator service, [the City]

gave up on its efforts to locate [D.N.], or to determine whether

she would be subject to [the] interstate subpoena process."

     We conclude from our review of the record that the ALJ's

decision was supported by sufficient credible evidence in the

record.   Accordingly, the Commission's decision adopting that

                                 12                           A-3257-15T4
decision was not arbitrary, capricious or unreasonable.      We,

therefore, discern no basis to alter the Commission's decision.

See In Re Young, 202 N.J. 50, 70 (2010).

     Affirmed.




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