The OAL has clearly held that an adverse party can be called at an OAL hearing. In the Matter of Jose DaSilva

The OAL has clearly held that an adverse party can be called at an OAL hearing.

In the Matter of Jose DaSilva
OAL Docket No. CSV 1071-00, DOP Docket No. 2000-178
(Merit System Board, decided April 21, 2004)

The opinion held:

 “The appeal of Jose DaSilva, a Police Officer with the City of Newark, of his removal effective October 22, 1999 on charges, was heard by Administrative Law Judge Jeffrey A. Gerson (ALJ), who rendered his initial decision on October 31, 2003, upholding the removal. Exceptions were filed on behalf of the appellant.

Having considered the record and the ALJ’s initial decision, and having made an independent evaluation of the record, the Merit System Board (Board), at its meeting on April 21, 2004, ordered that this matter be remanded to the Office of Administrative Law (OAL).

DISCUSSION

The appellant was charged with various administrative charges related to an allegation that he and another officer switched a handgun of unknown origin with a shotgun taken from a prisoner and which was intended for the Gun Amnesty Program. Based on these charges, the appellant was removed, effective October 22, 1999. The appellant appealed to the Board and the case was transmitted to the OAL and originally assigned to ALJ Michael L. Ravin. At the beginning of the presentation of its case, Newark sought to call the appellant as a witness and the appellant objected. After reviewing arguments by the parties on the issue, the ALJ issued an order allowing Newark to call the appellant as a witness. Subsequently, the appellant requested interlocutory review to the Board, which declined to take review, but indicated that the issue could be brought up after the ALJ issued an initial decision.

Thereafter, the matter was reassigned to ALJ Jeffrey A. Gerson. In his initial decision on the merits of the charges, the ALJ recommended upholding the charges and removal. Specifically, he found the testimony presented by the appellant not to be credible, and based on the credible evidence in the record, recommended upholding the charges and the removal.

In his exceptions, the appellant initially argues, as he did in his request for interlocutory review, that the appointing authority should not have been allowed to call him as a witness at the OAL. In this regard, the appellant argues that, under N.J.A.C. 4A:2-2.6(c), since an appellant enjoys the right not to testify at a hearing before the appointing authority, it is illogical that the employee could be compelled to testify in a subsequent de novo administrative hearing. The appellant also claims that since the burden of proof is on the appointing authority in disciplinary matters, an appointing authority cannot rely on the appellant’s testimony to establish its case.

Finally, the appellant maintains that a disciplinary hearing is more akin to a criminal trial since the employee has been subjected to a penalty, and therefore, the protections against self-incrimination should be extended to that arena. The Board rejects these arguments.

The OAL rules regarding witnesses generally provide that every person is qualified to be a witness and no person is disqualified to testify in any matter. N.J.A.C. 1:1-15.8, Footnote 1

[' Footnote 1 states: section also provides that a witness may be excluded from testifying by statute or by rule establishing a privilege. N.J.A.C. 1:1-15.4 states that the rules of privilege found in the New Jersey Rules of Evidence (N.J.R.E.) are applicable. In this regard, N.J.R.E. 503 states that “every natural person has a right to refuse to disclose in an action . . . any matter that will incriminate him or expose him to a penalty or a forfeiture of his estate . . . ” (emphasis added). The terms “penalty” and “forfeiture” have been interpreted in the context of former N.J.S.A. 11:1-15 (now, N.J.S.A. 11A:2-17) to only allow an individual to invoke a privilege against testifying only if such testimony would expose him or her to possible criminal sanction. See Fulginiti v. Cape May County Sheriff’s Dept., 199 N.J. Super. 56, 68 (App. Div. 1985), cert. denied, 102 N.J. 309 (1985). Accordingly, in this matter the appointing authority could call the appellant to testify unless he were able to establish a privilege. Based on its review of the record, the Board finds no such showing by the appellant. Also, it is noted that the ALJ and the Board may draw a negative inference from an individual’s refusal to testify. Such an inference is permitted in a variety of non-criminal contexts. See e.g., Bastas v. Board of Review, 155 N.J. Super. 312 (App. Div. 1978). See also, Duratron Corporation v. Republic Stuyvesant Corp., et al., 95 N.J. Super. 527 (App. Div. 1967), cert. denied, 50 N.J. 404 (1967), and State Department of Law and Public Safety v. Merlino, 216 N.J. Super. 579 (App. Div. 1987), aff’d., 109 N.J. 134 (1988). In Merlino, the court held that in administrative and civil proceedings, it is permissible for the trier of fact to draw adverse inferences from a party’s plea of self-incrimination, but the inference may be drawn only if there is other evidence supporting the adverse finding.

End of footnote 1]

Additionally, there is no Merit System law or rule which prohibits one party from calling the adverse party as a witness at an OAL hearing. In this regard, the appellant’s argument that N.J.A.C. 4A:2-2.6(c) should be extended to OAL hearings is unconvincing. The plain language of that section clearly pertains only to departmental level hearings. There is no support in the case law to allow that section to also be applied to OAL hearings. Further support for the notion that the appointing authority is permitted to call the appellant as a witness may be found in N.J.S.A. 2A:81-6. This section, pertaining to civil matters, states that “[i]n all civil actions in any court of record a party shall be sworn and shall give evidence therein when called by the adverse party . . . .” This section clearly allows an adverse party to be called to testify in a civil proceeding and it has been suggested that this provision also applies to administrative. [Footnote 2  This section also states that “no party thereto shall be compelled to be sworn or give evidence in any action brought to recover a penalty or to enforce a forfeiture.” Accordingly, this section appears to be consistent with N.J.R.E. 503.

See Laba v. Bd. of Education of Newark, 23 N.J. 364, 390 (1957).

The appellant also argues that the ALJ indicated that Lieutenant Milton Medina was a witness at the OAL hearing when he was not. Additionally, he contends that the ALJ improperly relied on transcripts from a criminal trial which were not part of the evidence in the record to make his determinations. Initially, the Board notes that, upon its review of the transcripts in this matter, it appears that Lieutenant Medina did not testify at the OAL. Accordingly, the ALJ’s listing of Lieutenant Medina as a witness was in error. Additionally, it is not entirely clear whether the ALJ relied on the transcripts from the criminal trial, and if so, what portions were relied upon. However, it is clear that no such transcript is listed as part of the evidence in the record. As such, it cannot be considered in making a determination

Accordingly, the Board remands this matter to the ALJ to allow him, in his discretion, to reopen the matter to allow the criminal trial transcripts to be admitted as evidence, and to consider the testimony contained therein as appropriate, and to allow the parties to call or recall any further witnesses and present any additional documentary evidence. However, the Board cautions the ALJ to only rely on evidence in the record before him in making his subsequent initial decision.

ORDER AS TO CALLING APPELLANT AS WITNESS

The Board finds that the appointing authority was properly permitted to call the appellant as a witness in this matter.

This is the final administrative determination in this matter as to that issue. Any further review should be pursued in a judicial forum.

ORDER AS TO ALJ’S INITIAL DECISION

The Board orders that this matter be remanded to the OAL for further proceedings as set forth above.