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.
