                             NOT FOR PUBLICATION WITHOUT THE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-3194-17T1

IN THE MATTER OF
KEVIN NEWSOM, NEW
JERSEY STATE PRISON.
__________________________

                 Argued May 1, 2019 – Decided July 30, 2019

                 Before Judges Accurso, Vernoia and Moynihan.

                 On appeal from the New Jersey Civil Service
                 Commission, Docket No. 2015-2238.

                 Donald C. Barbati argued the cause for appellant Kevin
                 Newsom (Crivelli & Barbati LLC, attorneys; Frank
                 Michael Crivelli and Donald C. Barbati, on the brief).

                 Steven Michael Gleeson, 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; Steven Michael Gleeson, on the
                 brief).

PER CURIAM

       Appellant Kevin Newsom forwarded an order to show cause to the Civil

Service Commission (Commission) seeking to reopen an administrative law
judge's (ALJ) recommended decision to remove him from his position as a

corrections sergeant with the New Jersey State Prison for striking a handcuffed,

leg-shackled and restrained inmate in the face with an extended baton, 1 – a

decision deemed adopted by the Commission, N.J.S.A. 40A:14-204. Appellant

urged the Commission to vacate his removal and summarily reverse the adopted

decision and reinstate him or, alternatively, remand the matter for a new hearing

because he received exculpatory information subsequent to his receipt of the

Commission's decision.

      He appeals from the final agency decision from a Commission director

who determined appellant's "request to be an untimely petition for

reconsideration, and given [appellant's] lack of pursuit of administrative

remedies, there is not a basis to reopen the final administrative decision in this

matter. Accordingly, no further action will be taken, and . . . the matter [was]

closed."   Recognizing our limited scope of review, we determine the

Commission's decision to reject appellant's order to show cause on procedural




1
   The ALJ concluded appellant violated N.J.A.C. 4A:2-2.3(a)(6), conduct
unbecoming a public employee, and N.J.A.C. 4A:2-2.3(a)(12), other sufficient
cause. N.J.A.C. 4A:2-2.3(a)(12) was formerly codified as N.J.A.C. 4A:2-
2.3(a)(11). 43 N.J.R. 2691(a) (Nov. 7, 2011); 44 N.J.R. 576(a) (Mar. 5, 2012).
                                                                          A-3194-17T1
                                        2
grounds without consideration of the merits was clearly arbitrary, capricious and

unreasonable, In re Herrmann, 192 N.J. 19, 27 (2007), and reverse.

      In making this determination, we consider:

            (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.

            [Id. at 28 (quoting Mazza v. Bd. of Trs., Police &
            Firemen's Ret. Sys., 143 N.J. 22, 25 (1995)).]

We recognize the Commission's interpretation of statutes it is charged with

enforcing is entitled to our deference but we are not bound by its interpretation

of any strictly legal issue. Bowser v. Bd. of Trs., Police & Firemen's Ret. Sys.,

455 N.J. Super. 165, 170-71 (App. Div. 2018). "When an agency's decision is

manifestly mistaken . . . the interests of justice authorize a reviewing court to

shed its traditional deference to agency decisions."       P.F. v. N.J. Div. of

Developmental Disabilities, 139 N.J. 522, 530 (1995).

      The Commission based its rejection of appellant's order to show cause on

N.J.A.C. 4A:2-1.6 which in pertinent part provides:




                                                                         A-3194-17T1
                                       3
            (a) Within 45 days of receipt of a decision, a party to
            the appeal may petition the . . . Commission for
            reconsideration.

            (b) A petition for reconsideration shall be in writing
            signed by the petitioner or his or her representative and
            must show the following:

            1. The new evidence or additional information not
            presented at the original proceeding, which would
            change the outcome and the reasons that such evidence
            was not presented at the original proceeding; or

            2. That a clear material error has occurred.

The Commission argues the order to show cause did not meet the regulation's

filing requirements.

      By filing the order to show cause, appellant did not seek reconsideration

of the prior decision. He sought to reopen the hearing to allow consideration of

evidence he contends was previously unavailable.           Thus the regulation is

inapplicable. The new evidence not presented at the original proceeding was a

fifteen-minute-long videotaped statement by the injured inmate who was

interviewed by New Jersey Department of Corrections (DOC) investigators two

days after he was assaulted. Appellant alleges only a portion of the videotape –

approximately ninety seconds long – was supplied to appellant prior to the

administrative disciplinary hearing and that the portion supplied did not contain

any exculpatory evidence. In the video, the inmate claimed a large, white officer

                                                                          A-3194-17T1
                                       4
with a bald head struck him with a baton. In that appellant is African-American,

that evidence is ostensibly exculpatory and, in fairness, the Commission should

have considered appellant's application to reopen the case. Its decision to deny

the order to show cause on procedural grounds related to the inapposite

regulation presents one of those "rare circumstances in which an agency action

is clearly inconsistent with its statutory mission or other state policy" requiring

our intervention. In re Musick, 143 N.J. 206, 216-17 (1996).

      Our Supreme Court discerned "[t]he Legislature's intent not to impose the

procedural requirements of courts of law on hearings before administrative

agencies is evidenced in N.J.S.A. 52:14B-10, which provides for the liberal

admission of evidence in a contested case." In re Kallen, 92 N.J. 14, 25 (1983).

N.J.S.A. 52:14B-10(a)(1) provides in part: "Any party in a contested case may

present his case or defense by oral and documentary evidence, submit rebuttal

evidence and conduct such cross-examination as may be required, in the

discretion of the administrative law judge, for a full and true disclosure of the

facts." ALJs are less restricted than courts in the conduct of administrative

hearings but are, nonetheless, compelled to observe "principles of basic

fairness." Kallen, 92 N.J. at 25 (quoting Kelly v. Sterr, 62 N.J. 105, 107 (1973)).

Those fairness principles and the stated legislative mandate that "[a]ll relevant


                                                                           A-3194-17T1
                                        5
evidence is admissible, except as otherwise provided" by statute in an effort to

educe a "full and true disclosure of the facts," N.J.S.A. 52:14B-10(a)(1),

undergird our conclusion that the Commission abused its discretion when it

dismissed appellant's request to reopen the case to allow consideration of th e

video.

        After the inmate became involved in an altercation, a number of

corrections officers responded and were involved in restraining the inmate. The

video proof, "[a] new development or new evidence relating to established facts

or a material misapprehension concerning an essential matter which is critical

to an agency determination[,] can constitute a reasonable basis for

reconsideration by the agency," as can "matters not previously considered." In

re Parole Application of Trantino, 89 N.J. 347, 365 (1982). The Court in

Trantino stated, "Considerations of individual fairness, repose and party reliance

are relevant in terms of whether an agency proceeding should be reopened."

Ibid.

        We acknowledge, "[i]n the absence of some legislative restriction,

administrative agencies have the inherent power to reopen or to modify and to

rehear orders that have been entered." Burlington Cty. Evergreen Park Mental

Hosp. v. Cooper, 56 N.J. 579, 600 (1970). That power "may be invoked by


                                                                          A-3194-17T1
                                        6
administrative agencies to serve the ends of essential justice and the policy of

the law." Handlon v. Town of Belleville, 4 N.J. 99, 106-07 (1950). We conclude

appellant deserves an opportunity for the Commission to decide whether to

exercise that inherent power in light of the legislative goal of a "full and true

disclosure of the facts." N.J.S.A. 52:14B-10(a)(1).

      We are mindful of the need for finality of administrative decisions. In re

Hill, 241 N.J. Super. 367, 371 (App. Div. 1990). But the Commission's decision

to reject on procedural grounds appellant's application to reopen the case in

order to present the video he claims was not heretofore available to him "is

clearly a mistaken one and so plainly unwarranted that the interests of justice

demand intervention and correction." Campbell v. N.J. Racing Comm'n, 169

N.J. 579, 587-88 (2001) (quoting Clowes v. Terminix Int'l, Inc., 109 N.J. 575,

588 (1988)). We, therefore, reverse the Commission's decision and remand this

matter for the Commission to consider appellant's application to reopen the

hearing. We express no opinion on the merits of the application.

      Reversed and remanded. We do not retain jurisdiction.




                                                                         A-3194-17T1
                                       7
