SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1802-15T1

IN THE MATTER OF SEAN LAVIN,

MERCER COUNTY SHERIFF'S

DEPARTMENT.

______________________________

Submitted January 25, 2018 – Decided

Before Judges Simonelli, Haas and Gooden 

Brown.

On appeal from the Civil Service Commission, 

Docket No. 2014-1760.

Fusco & Macaluso Partners, LLC, attorneys for 

appellant Sean Lavin (Amie E. DiCola, on the 

brief).

Arthur R. Sypek, Jr., Mercer County Counsel, 

attorney for respondent Mercer County 

Sheriff's Department (Kristina E. Chubenko,

Assistant County Counsel, of counsel and on 

the brief).

Gurbir S. Grewal, Attorney General, attorney 

for respondent Civil Service Commission

(Valentina M. DiPippo, Deputy Attorney 

General, on the statement in lieu of brief).

PER CURIAM

Sean Lavin, a former Mercer County Sheriff's Officer, appeals 

from the November 19, 2015 final agency decision of the Civil 

NOT FOR PUBLICATION WITHOUT THE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.

July 17, 2018
2 A-1802-15T1

Service Commission (Commission), adopting the Administrative Law 

Judge's (ALJ) initial decision upholding the Mercer County

Sheriff's Department's (Department) indefinite suspension of Lavin 

without pay following the filing of criminal charges against him. 

We affirm. 

On December 12, 2013, while employed as a Mercer County 

Sheriff's Officer, Lavin was charged in a criminal complaint with 

two counts of second-degree official misconduct, N.J.S.A. 2C:30-

2(a). The complaint arose out of allegations that on December 6, 

2013, Lavin pepper sprayed "an arrestee in the face while she was 

handcuffed behind her back" and subsequently filed a false 

investigation report in connection with the incident and 

"attempted to cause subordinate officers" to do the same. 

Based on the criminal complaint, on December 12, 2013, the 

Department issued a Notice of Informal Pre-Termination Hearing

(NIPH), charging Lavin with conviction of a crime, N.J.A.C. 4A:2-

2.3(a)(5); conduct unbecoming a public employee, N.J.A.C. 4A:2-

2.3(a)(6); and other sufficient cause, N.J.A.C. 4A:2-2.3(a)(12), 

specifically "[i]nappropriate physical contact or mistreatment of 

a patient, client, resident, or employee." Lavin waived his right 

to an informal pre-termination hearing. 

The following day, the Department served Lavin with a 

Preliminary Notice of Disciplinary Action (PNDA), incorporating 
3 A-1802-15T1

the charges contained in the NIPH and seeking his removal and 

immediate indefinite suspension pending resolution of the criminal 

charges. After Lavin waived his right to a departmental hearing, 

the Department issued a Final Notice of Disciplinary Action (FNDA), 

suspending Lavin indefinitely, effective December 13, 2013, 

pending the resolution of the criminal charges. On January 15, 

2014, Lavin filed a timely appeal, which was transmitted to the 

Office of Administrative Law (AOL) as a contested case on January 

24, 2014. 

On May 15, 2014, Lavin was indicted by a Mercer County Grand 

Jury based on the December 6, 2013 incident, and charged with 

three counts of second-degree official misconduct, N.J.S.A. 2C:30-

2(a), and one count of third-degree tampering with public records 

or information, N.J.S.A. 2C:28-7(a)(1). On October 20, 2014, on 

Lavin's motion, the indictment was dismissed without prejudice,

and on December 10, 2014, Lavin was re-indicted on the same 

charges. 

On February 27, 2015, over Lavin's objection, the Department 

moved for summary disposition, seeking the dismissal of Lavin's 

administrative appeal based upon the pending criminal charges, 

and, at Lavin's request, the ALJ held the record open to allow 

Lavin to resolve the charges. On October 5, 2015, Lavin was 

admitted into the Pre-Trial Intervention Program (PTI) for a period 
4 A-1802-15T1

of eighteen months, subject to the condition that he resign from

his position as a Mercer County Sheriff's Officer effective October 

2, 2015, and not seek future employment with Mercer County. Lavin 

resigned his position, effective October 2, 2015,

1 and the ALJ

closed the record on October 27, 2015, upon receipt of the PTI 

order.

In an initial decision issued on October 29, 2015, the ALJ 

granted the Department's motion for summary disposition. 

Preliminarily, the ALJ noted that "[a] summary decision motion is

the administrative law equivalent of a summary judgment motion" 

and could be granted where, as here, "there are no 'genuine 

disputes' of 'material fact.'"2 Next, acknowledging that the 

merits of the underlying charges were not at issue in the appeal, 

the ALJ determined that, pursuant to N.J.A.C. 4A:2-2.7(a)(1), 

"[t]he sole issue before [him] [was] whether the public interest 

would best be served by suspending the employee until disposition 

of the criminal indictment." The ALJ concluded the Department had 

 

1 On November 4, 2016, an order was entered dismissing the 

indictment upon Lavin's successful completion of the PTI program.

2 Under N.J.A.C. 1:1-12.5(b), the standard for a State agency's 

decision to grant a motion for summary decision is "substantially 

the same as that governing a motion" for summary judgment by a 

trial court under Rule 4:46-2. Contini v. Bd. of Educ. of Newark, 

286 N.J. Super. 106, 121 (App. Div. 1995).
5 A-1802-15T1

presented sufficient evidence to support Lavin's indefinite 

suspension and recommended dismissal of the appeal.

3

Thereafter, Lavin filed exceptions to the ALJ's decision. On 

November 19, 2015, the Commission issued a final decision adopting 

the ALJ's findings, conclusions, and recommendation, and dismissed 

the appeal. This appeal followed. On appeal, Lavin presents the 

following argument for our consideration:

THE COURT SHOULD REVERSE THE CIVIL SERVICE 

COMMISSION'S FINAL ADMINISTRATIVE ACTION 

BECAUSE THE COMMISSION'S DECISION TO SUMMARILY 

DISPOSE OF SGT. LAVIN'S APPEAL WAS ARBITRARY 

AND CAPRICIOUS AS IT WAS MANIFESTLY MISTAKEN 

AND NOT SUPPORTED BY THE RECORD. AS SUCH, 

SGT. SEAN LAVIN IS ENTITLED TO A FULL HEARING 

ON THE ISSUE OF WHETHER HE WAS PROPERLY 

SUSPENDED IN ACCORDANCE WITH [N.J.A.C.] 4A:2-

2.7.

Our review of an agency's decision is limited. In re 

Stallworth, 208 N.J. 182, 194 (2011). We "afford[] a 'strong 

presumption of reasonableness' to an administrative agency's 

exercise of its statutorily delegated responsibilities." Lavezzi 

v. State, 219 N.J. 163, 171 (2014) (quoting City of Newark v. Nat. 

Res. Council, Dep't of Envtl. Prot., 82 N.J. 530, 539 (1980)). 

Thus, a reviewing court "should not disturb an administrative 

agency's determinations or findings unless there is a clear showing 

 

3 The ALJ noted that "[i]f the criminal charges did not result in 

a forfeiture of office, the [Department] would be required to 

issue a second [PNDA] specifying the charges" for Lavin's removal.
6 A-1802-15T1

that (1) the agency did not follow the law; (2) the decision was 

arbitrary, capricious, or unreasonable; or (3) the decision was 

not supported by substantial evidence." In re Virtua-West Jersey 

Hosp. Voorhees for a Certificate of Need, 194 N.J. 413, 422 (2008). 

While "we are not bound by the agency's interpretation of a statute 

or resolution of a question of law[,]" In re Carroll, 339 N.J. 

Super. 429, 437 (App. Div. 2001), nonetheless, the party 

challenging the agency's action has the burden of proving the 

action was arbitrary, capricious, or unreasonable. Lavezzi, 219 

N.J. at 171. 

Lavin argues the ALJ gave no consideration to "whether [he] 

received a proper departmental hearing, whether the [Department] 

failed to address the administrative charges after the dismissal 

of the first indictment, and whether there existed genuine issues 

of material fact," by virtue of the "varying accounts of what 

occurred" during the December 6, 2013 incident. As such, Lavin 

asserts, "the resulting [f]inal [a]dministrative [a]ction is 

correspondingly defective." We disagree. 

N.J.S.A. 11A:2-13 provides for

the immediate suspension of an employee 

without a hearing if the appointing authority 

determines that the employee is unfit for duty 

or is a hazard to any person if allowed to 

remain on the job or that an immediate 

suspension is necessary to maintain safety, 
7 A-1802-15T1

health, order or effective direction of public 

services.

Where the "suspension is based on a formal charge of a crime of 

the first, second or third degree, or a crime of the fourth degree 

if committed on the job or directly related to the job, the 

suspension may be immediate and continue until a disposition of 

the charge." Ibid. N.J.A.C. 4A:2-2.7(a) establishes the following 

procedures for hearings and suspensions with or without pay:

When an appointing authority suspends an 

employee based on a pending criminal complaint 

or indictment, the employee must be served 

with a [PNDA]. . . .

1. The employee may request a 

departmental hearing within five 

days of receipt of the Notice. If 

no request is made within this 

time, . . . the appointing 

authority may then issue [a] [FNDA]

under (a)3 below. A hearing shall 

be limited to the issue of whether 

the public interest would best be 

served by suspending the employee 

until disposition of the criminal 

complaint or indictment. The 

standard for determining that issue 

shall be whether the employee is 

unfit for duty or is a hazard to any 

person if permitted to remain on the 

job, or that an immediate suspension 

is necessary to maintain safety, 

health, order, or effective 

direction of public services.

2. The appointing authority may 

impose an indefinite suspension to 

extend beyond six months where an 

employee is subject to criminal 
8 A-1802-15T1

charges as set forth in N.J.A.C. 

4A:2-2.5(a)(2),

[4] but not beyond the 

disposition of the criminal 

complaint or indictment.

i. Where an employee who 

has been indefinitely 

suspended enters 

[PTI] . . . , the 

criminal complaint or 

indictment shall not be 

deemed disposed of until 

completion of PTI . . . .

. . . .

3. Where the appointing authority 

determines that an indefinite 

suspension should be imposed, [an] 

[FNDA] shall be issued stating that 

the employee has been indefinitely 

suspended pending disposition of 

the criminal complaint or 

indictment.

Here, Lavin does not dispute that "he [was] a member of the 

Mercer County Sheriff's [Department], and, as such, . . . a law 

enforcement officer . . . bound to uphold, promote and enforce the 

laws of the State of New Jersey." Further, it is undisputed that 

Lavin was charged criminally on December 12, 2013, with seconddegree charges related to his job, which charges ultimately caused 

his resignation on October 2, 2015, and were dismissed on November 

 

4 Under N.J.A.C. 4A:2-2.5(a)(2), "[a]n employee may be suspended 

immediately when the employee is formally charged with a crime of 

the first, second or third degree, or a crime of the fourth degree 

on the job or directly related to the job."
9 A-1802-15T1

4, 2016 upon his successful completion of the PTI program. Equally 

undisputed is the fact that Lavin was suspended pending the 

disposition of the criminal charges and afforded all the 

protections enunciated in N.J.A.C. 4A:2-2.7. 

Despite Lavin's assertions to the contrary, there were no 

genuine issues of material fact, and the matter was appropriate 

for summary disposition. "It is well-established that where no 

disputed issues of material fact exist, an administrative agency 

need not hold an evidential hearing in a contested case." Frank 

v. Ivy Club, 120 N.J. 73, 98 (1990). Lavin has not established 

that the Commission's determination was arbitrary, capricious, or 

unreasonable, or that it lacked fair support in the record as a 

whole. Karins v. City of Atlantic City, 152 N.J. 532, 540 (1998). 

Thus, the strong presumption of reasonableness attached to a 

decision of the Commission is warranted in this case. In re 

Carroll, 339 N.J. Super. at 437.

Affirmed.