Fulginiti v. Cape May County Sheriff's Dept.

• Decision Date: 25 February 1985
• Citation: 199 N.J.Super. 56,488 A.2d 250
• Parties: Joseph FULGINITI, Plaintiff-Respondent, v. CAPE MAY COUNTY SHERIFF'S DEPARTMENT, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 56

199 N.J.Super. 56

488 A.2d 250

Joseph FULGINITI, Plaintiff-Respondent, v. CAPE MAY COUNTY SHERIFF'S DEPARTMENT, Defendant-Appellant.

Superior Court of New Jersey,

Appellate Division.

Submitted Jan. 29, 1985.

Decided Feb. 25, 1985.

Tuso, Gruccio, Pepper, Giovinazzi & Butler, P.A., Vineland, for defendant-appellant (Cosmo A. Giovinazzi III, Vineland, on the brief).

Bernard P. Sypniewski, Woodbine, for plaintiff-respondent, Joseph Fulginiti.

Irwin I. Kimmelman, Atty. Gen., for respondent Civil Service Com'n (James J. Ciancia, Asst. Atty. Gen., of counsel; Lewis A. Scheindlin, Deputy Atty. Gen., on the brief).

Before Judges MICHELS, PETRELLA and BAIME.

The opinion of the court was delivered by

PETRELLA, J.A.D.

This appeal involves a question of the interpretation of a Civil Service statute granting immunity with respect to testimony elicited in a Civil Service proceeding. The issue is whether that immunity extends not only to criminal proceedings, but to civil matters. Although the statute has been in existence since 1908, we can find no reported decisions in this State interpreting the statute.

The facts relevant to this appeal are essentially undisputed. Joseph Fulginiti had been employed as a corrections officer since 1977 by the Cape May County Sheriff's Department and was stationed at the Cape May County Jail. He testified as a witness in an administrative hearing on February 23, 1983 before an Administrative Law Judge (ALJ) on behalf of another corrections officer, Wanda Lee Rogers, who was charged with sleeping on duty during the midnight shift.

In connection with the defense of Rogers' case, Fulginiti testified that sleeping on duty was quite common by correction officers on the night shift at the Cape May County Jail. He testified that he had observed others sleeping, and on one occasion orally reported it to a sergeant. He also said he had observed such sleeping on duty on many other occasions which he did not report, even though it was a violation of the standing rules. Fulginiti also testified that he himself had slept while on duty.

After he had so testified under oath Fulginiti received a notice of disciplinary action on April 20, 1983 charging him with sleeping on duty, failure to report known violations and failure to file written reports of correction officers who had slept while on duty. A departmental hearing was held at which Fulginiti was found to have violated departmental regulations and procedures. He was dismissed from his position effective May 17, 1983. On Fulginiti's appeal from the dismissal to the Civil Service Commission (Commission) the matter was referred to an ALJ for a hearing. The hearing before the ALJ was based solely on the transcript of Fulginiti's testimony at the Rogers' hearing. That was the only evidence supporting the charges against Fulginiti. After the hearing the ALJ issued a comprehensive opinion discussing the scope of the immunity granted in N.J.S.A. 11:1-15. He concluded that Fulginiti's testimony in the Rogers' hearing was admissible and could support disciplinary charges against him because N.J.S.A. 11:1-15 did not, in his view, afford immunity in other than criminal matters and hence could support the disciplinary charges. Accordingly, the ALJ recommended that the disciplinary charges against Fulginiti be sustained and that the appropriate penalty for his conduct was removal. The ALJ thus did not find it necessary to decide another issue which had been raised by the Sheriff's Department as a basis for denying immunity, which was whether plaintiff had been properly served with a subpoena in the Rogers case. ¹

On appeal the Commission reversed the initial decision of the ALJ. The Commission held that N.J.S.A. 11:1-15 granted total and complete immunity to Fulginiti with respect not only to criminal proceedings, but also in protecting him from removal from his Civil Service position. He was awarded back pay from the date of his removal to the date of reinstatement. The sheriff appealed that final determination to this court. We granted a stay of the Commission's decision pending appeal.

On this appeal the Sheriff's Department contends that the Commission improperly construed N.J.S.A. 11:1-15 as proscribing disciplinary sanctions based on testimony given in a Civil Service hearing. ²

I

We are cognizant of the principle that the interpretation of a statute by an agency charged with implementation and enforcement of that statute is entitled to due deference. See New Jersey Guild of Hearing Aid Dispensers v. Long, 75 N.J. 544, 575, 384 A.2d 795 (1978); Mayflower Securities Co. v. Bureau of Securities, 64 N.J. 85, 93, 312 A.2d 497 (1973), and Helfrich v. Hamilton Twp., 182 N.J.Super. 365, 374, 440 A.2d 1366 (App.Div.1981). Nevertheless, in the final analysis, interpretation of a statute is a judicial function, Service Armament Co. v. Hyland, 70 N.J. 550, 561, 362 A.2d 13 (1976), which cannot be relinquished to an administrative agency.

Furthermore, although the usual standards of review are whether the determination of the agency is arbitrary, capricious or unreasonable and whether it is supported by sufficient credible evidence in the record as a whole, see Henry v. Rahway State Prison, 81 N.J. 571, 579-580, 410 A.2d 686 (1980) and Campbell v. Civil Service Dept., 39 N.J. 556, 562, 189 A.2d 712 (1963), this is not an appeal from a factual determination by the agency. Hence, those standards of review do not apply here. Also inapplicable is the presumption of reasonableness attributed to agency action. See East Paterson v. Civil Service Department, 47 N.J.Super. 55, 65, 135 A.2d 213 (App.Div.1957).

II

As we view it, the significant issue raised on this appeal is whether the immunity offered by N.J.S.A. 11:1-15 applies only to subsequent criminal proceedings or applies as well to subsequent civil proceedings, particularly disciplinary proceedings. That statute had as its source, L. 1908, c. 156, § 8. N.J.S.A. 11:1-15 provides as follows:

No person shall be excused from testifying or from producing books or papers before the commission upon the ground that the testimony or evidence, books or documents required of him, may tend to incriminate him, or subject him to a penalty or forfeiture, but no person shall be prosecuted, punished, or subjected to a penalty or forfeiture for or on account of any act, transaction, matter or thing concerning which he shall, under oath, have testified or produced documentary evidence. (Emphasis added).

Testifying falsely in such proceedings before the Commission is made a "misdemeanor" by N.J.S.A. 11:1-17. (See N.J.S.A. 2C:1-4d).

A review of the Commission's interpretation of N.J.S.A. 11:1-15 is useful. The Commission analyzed the two important clauses of that statutory provision. The first such clause provides that no person may refuse to testify before the Commission on the grounds that such testimony "may tend to incriminate him or subject him to a penalty or forfeiture." The second clause provides that an individual who testifies may not be "prosecuted, punished or subjected to a penalty or forfeiture" on the basis of his testimony. The Commission reasoned that these clauses referred not only to criminal consequences by reference to the concepts of incrimination, prosecution and punishment, but also other consequences because of the use of the words "penalty" and "forfeiture." Hence, it concluded that our Legislature did not intend the grant of immunity to be limited to criminal proceedings. The Commission further reasoned that the purpose of this statutory provision for immunity ³ was "to encourage complete and truthful testimony in Civil Service proceedings by removing the fear that such testimony in itself will lead to adverse action against the person so testifying." With respect to encouraging truthful testimony, we note here that it would seem that the misdemeanor penalty for false swearing also would encourage truthful testimony.

The Commission distinguished the cases relied on by the ALJ in his ruling on the basis that those cases involved criminal statutes. The Commission further concluded that because this immunity provision was part of the Civil Service Act it referred essentially to Civil Service hearings. ⁴ The Commission was of the view that reading N.J.S.A. 11:1-15 as applicable only to criminal proceedings would run afoul of the principle that the purpose of a statute should not be frustrated by an unduly narrow interpretation and that the intent was to encourage disclosure in Civil Service proceedings. It felt that this latter intent would be unduly limited by confining the immunity from prosecution to criminal proceedings.

In our effort to determine the legislative intent here, we must consider not only the language of the statute, but the circumstances around the time of the adoption of that statute. See AMN, Inc. of N.J. v. South Brunswick Twp. Rent Leveling Board, 93 N.J. 518, 525, 461 A.2d 1138 (1983). Although there is no specific legislative history regarding the precise circumstances which gave rise to the enactment of the predecessor to the present compilation of N.J.S.A. 11:1-15, there is a distinct similarity between that provision and that in the Act of February 11, 1893. ⁵ See Annotation, "Validity and adequacy, as a matter of constitutional law, of federal statute granting immunity in lieu of privilege against self-incrimination--federal cases," 100 L.Ed. 533, 537-539 (1955). The 1893 statute provided:

No person shall be excused from attending and testifying or from producing books, papers, tariffs, contracts, agreements and documents before the Interstate Commerce Commission, or in obedience to the subpoena of the Commission, ... on the ground or for the reason that the testimony or evidence, documentary or otherwise, required of him, may tend to criminate him or subject him to a penalty or forfeiture. But no person shall be prosecuted or subjected to any...