SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO . A - 0825
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IN THE MATTER OF BASEM ZAGHLOUL CITY OF NEWARK POLICE DEPARTMENT .

Submitted December 14, 2016

– Decided Before Judges Alvarez and Accurso. On appeal from the Civil Service Commission, Docket No. 2012
- 2210. Fusco & Macaluso Partners, LLC, attorneys for appel lant Basem Zaghloul (Amie E. DiC ola, on the brief). Willie L. Parker, Corporation Counsel, attorney for respondent City of Newark (Corinne E. Rivers, Assistant Corporation Counsel, on the brief). Christopher S. Porrino, Attorney General, attorney for respondent Civil Service Commission (Pamela N. Ullman, Deputy Attorney General, on the statement in lieu of brief).
PER CURIAM Basem Zaghloul, a Newark police officer, appeals from th e October 1, 2014 final decision of the Civil Service Commission (Commission) imposing a ten

- day suspension. We affirm. NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court . " A lthough 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.

March 10, 20172 A - 0825
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A preliminary notice of disciplinary action (PNDA) dated October 24, 2011, charged Zaghloul with the following violations: charge one , violations of Newark Police Department Rules and Regulations, Chapter 3:1.1 and N.J.A.C. 4A:2
- 2.3(a)(6), conduct unbecoming a public employee; charge two, insubordination in violation of Newark Police Department Rules and Regulations, Chapter 18:8 and N. J.A.C. 4A:2
- 2.3(a)(2); charge three, a violation of Newark Police Department Rules and Regulations, Chapter 5:4.1, obedience to orders; charge four, violation of Newark Police Department Rules and Regulations, Chapter 5:1.2, use of foul language; and charg e five, violation of Newark Police Department Rules and Regulations, Chapter 3:1.2

- 4, demonstration of respect. The charges arose from an October 12, 2011 incident when Zaghloul st opped by his office , while on vacation, to drop off a check for a fundrais er . Detective Stacey Pickett and Detective Antonia Rosa happened to be in the midst of reviewing forms Zaghloul had recently completed and were discussing err ors he had made. Zaghloul became angr y when the women told him about their

concerns and, during the conversation which ensued, he referred
to Pickett as "baby" and "sunshine. " W hen Pickett told Zaghloul to address her as either "Stacey" or "Pickett," Zaghloul became irate. The discussion rapidly d e terior ated until he began to yell3 A - 0825
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profanit ies at Pi ckett, telling her " I don't give an F about this work. I don't give an F about you. F you ." Sergeant Beatrice Golden, the supervisor, entered Pickett's office shortly after the confrontation began . T he argument could
be heard in areas accessible to the public , not just to the police. Pickett and Rosa testified that Zaghloul ignored Golden's order when she told him to leave the building . On his way out, Zaghloul either kicked or pulled a chair over onto the floor and went into the dep uty chief's office . The final notice of disciplinary action (FNDA) i m pos ed a ten day suspension on the charges . Zaghloul appealed, and the matter was transmitted to the Office of Administrative Law (OAL) for a hearing under the Administrative Procedure Act, N.J.S.A. 52:14B
- 1
to - 15, and the Uniform Administrative Procedure Rules, N.J.A.C.
1:1
- 1.1 to
- 21.6. At the hearing, a number of documents were introduced through the testimony of Sergeant Julio Benavente . He conducted the internal affairs investigat ion , including the taking of
statements. He sa id that Zaghloul had been reassigned to patrol duty , and that the deputy chief had told him he was transferred
because of the incident. Unfortunately, although the OAL hearing began on October 22, 2012, it did not resume until over a year later on November 18,4 A - 0825
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2013. On t h at da te, counsel for the City of Newark (City) st a t ed
that she had noticed two additional witnesses, Deputy Ch ief Israel
Caraballo and Golden. Even though the ALJ waited for over an
hour , neither appeared . Zaghloul's attorney then moved to dismiss the matter because in his view "the City hasn't completed [its] case." T he ALJ asked Zaghloul's attorney if he planned to proffer Zaghloul as a witness,
and his attorney re s ponde d that "he sho uld not be forced into testifying . . . ." The attorney argued that it was unfair that the State had not produced the two witnesses as they were "crucial." The ALJ pointed out that he also had the opportunity to subpoena them, and that even if Caraballo and Golden did not appear, the City had the option of rest ing on the testimony of the witnesses i t had pr oduc ed. Hence, t he ALJ denied the motion to dismiss. She also said there was no reason to continue the matter, although Zaghlou l 's attorney ha d not r equest ed a postponement . T he ALJ closed the record and directed that counsel simultaneously submit their s um

matio ns in writing.
The ALJ hel d that the appointing authority had met its burden of proof by a preponderance of the credible evidence. In support of t h e decision, s he re c ount ed Benavente's testimony regarding Pickett and Rosa's incident reports , which included the initial description s of the argument between Zaghloul and Pickett, and5 A - 0825
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their description of Golden's order to Zaghloul to leave the building , which he ignored . The ALJ credite d Rosa and Pickett's testimony that Zaghloul began to yell profanities and wave his arms in an angry manner when they began to talk to him about his work . Bo t h witnesses said Golden ordered Zaghloul to leave the building, and he instead
k no cked a chai r over and walked into the d eputy c hief's office.

T he ALJ specifically rejected Zaghloul's argument that he did not have the opportunity to "put in a defense" or to "testify"
b ecause of Caraballo and Golden's failure to appear. N o interlocutory appeals were taken, nor any subpoenas served by Zaghloul on any officers. He could have testified, but chose not
to. In considering the appropriate sanction, she noted that no mitigati ng factors had been presented which warranted a reduction in the penalty. Zaghloul filed exception s to the ALJ's decision. O n October 1, 2014 , the Commission "accepted and adopted the [ f ] ind ings of [ f ] act and [ c ] onclusion." On appeal, Zaghloul raise s the following two points:
POINT ONE THE COURT SHOULD REVERSE THE CIVIL SERVICE COMMISSION'S FINAL ADMINISTRATIVE ACTION BECAUSE [THE ALJ 'S ] DECISION WAS MANIFESTLY MISTAKEN AND NOT SUPPORTED BY THE RECORD AS [] ZAGHLOUL HAD A RIGHT TO RELY ON THE CITY O F NEWARK'S SUBPOENAS, THE CITY OF NEWARK6 A - 0825
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POINT TWO THE COURT SHOULD REVERSE THE CIVIL SERVICE COMMISS ION'S FINAL ADMINISTRATIVE ACTION BECAUSE THE PENALTY IMPOSED BY THE CIVIL SERVICE COMMISSION WAS DISPROPORTIONATE IN LIGHT OF ALL THE CIRCUMSTANCE [S] AS [] ZAGHLOUL WAS ALREADY DEMOTED AND TRANSFERRED FOR HIS ACTIONS ON OCTOBER 12, 2011 WHEN HE WAS ADMINI STRATIVELY CHARGED.

I. Appellate courts have a "limited role" in reviewing administrative agency decisions. In re Stallworth , 208 N.J. 182, 194 (2011). An agency's judgment may only be reversed if it was "arbitrary, capricious, [] unreasonable, or [] not supported by substantial credible evidence in the record as a whole." Ibid. (second alteration in original) (quoting Henry v. Rahway State Prison , 81 N.J. 571, 579
- 80 (1980)). "The application of those principles is not limited to whether a violation warranting discipline has been proven; this 'deferential standard applies to the review of disciplinary sanctions as well.'" Id. at 195 (quoting In re Her r mann , 192 N.J. 19, 28 (2007)).

II. Pickett and Rosa's testimony was s tra i ghtforward . Zaghloul lost his temper when told not to refer to Pickett by anything7 A - 0825
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other than her name, and when Pickett and Rosa critici zed his
work. He used fo ul language, engaged in threatening and inappropriate behavior, including knocking over a chair as he left the room and stormed into his superior's office, disregarding the supervising officer's order to leave the building. Uncontroverted credible evidenc e prove d the charges. The decision of the ALJ, adopted by the Commission, enjoys a presumption of reasonableness. In light of the testimony, it was not arbitrary, capricious, or unreasonable. It was supported by substantial, credible evidence in the re cord as a whole. See Stallworth , supra , 20 8 N.J. at 19 4.
We further note that on the last day of the hearing , counsel did not request that the ALJ carr y the matter so he might subpoena
Caraballo and Golden . Zaghloul ha d the option to issue his own subpoenas for those witnesses if he viewed them as critical to his
defense and could have done so after the first day of the hearing . Obviously, Zaghloul had the opportunity to testify , but proceeded instead on the theory that the po l i ce departme nt's proo fs were inadequate. That he now regrets the strategic choices he made does not make the Commissioner's decision erroneous.

III. Benavente mention ed that Zaghloul h a d been assigned to patrol duty and that the deputy chief said it happened because of the8 A - 0825
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incident. N o evidence was introduced that the transfer was action taken against him . Although hearsay is admissible in an OAL proceeding, we know nothing about the particulars of the transfer.
See N.J.A.C. 1:1
- 15.5(b) ("Notwithstanding the admissibility of hearsay evidence [in administrative proceedings] some legally competent evidence must exist to support each ultimate finding of fact . . ."). Without that information , Zaghloul's argument that he has been punished twice for the same offense is untenab le. The details regarding his reassignment are simply unknown . He had
worked in th e office where the incident occurred only a short time , and we can not speculate as to the conditions of that assignment, or the actual circumstances surrounding his return to patrol detail. Th e connection Zaghloul makes between the reassignment a nd punishment lacks record support . It is commonplace that a police officer is a "special kind of public employee" who "represents law and order to the citizenry and must present an image of personal integrity and dependability in order to have the respect of the public." In re Carter , 191

N.J. 474, 486 (2007) (quoting Twp. of Moorestown v. Armstrong , 89 N.J. Super. 560, 566 (App. Div. 1965), certif. denied , 47 N.J. 80 (1966)). That high standard is one a police officer voluntarily undertakes upon acceptance of his employment in the service of the9 A - 0825
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public. In re Phillips , 117 N.J. 567, 577 (1990) (citing In re
Emmons , 63 N.J. Super. 136, 142 (App. Div. 1960)). In disciplinary actions involving police officers, "courts should take care not to substitute their own views of whether a particular penalty is correct for those of the body charged with making that decision." Carter , supra , 191 N.J. at 486. Thus, we d o not find fault with the Commission's decision
that the ten
- day suspension was proper. In light of Zaghloul' s conduct on the day in question, the Commission's decision is not arbitrary, unreasonable, or capricious. Affirmed.