(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for
the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please
note that, in the interests of brevity, portions of any opinion may not have been summarized).
In the Matter of the Suspension or Revocation of the License of Joseph Fichner, Jr., etc. (A-125-95)
Argued March 11, 1996 -- Decided June 18, 1996
O'HERN, J., writing for a unanimous Court.
The State Plumbing License Law of 1968 created the Board of Examiners of Master Plumbers
(Board) and authorized it to license and regulate plumbers throughout the State. The Board examines and
licenses those plumbers meeting the qualifications necessary to become a "master plumber." The Board has
promulgated regulations that define occupational misconduct and fraud and set forth the penalties for such
acts. Pursuant to the regulations, a plumber who charges excessive prices commits occupational misconduct.
The Board originally consisted of seven members: three master plumbers with ten years experience,
one local plumbing inspector who has held such an appointment for at least ten years, one journeyman
plumber with ten years experience, and two representatives of the public having no association with the
plumbing industry. The Legislature added two additional members to represent the interest of the public,
one of which is a holder of a designated office or position in a department of the Executive Branch of State
Government that is closely related to the plumbing profession. Because the State Government position and
one of the public member positions were vacant, only a seven-member Board participated in the final
decision in this case.
Joseph Fichner, Jr. is a licensed master plumber. The Board has twice charged Fichner with
occupational misconduct because of fraudulent business practices, including charging excessive prices. From
the first set of charges that occurred in 1988, the Board found Fichner guilty of occupational misconduct and
fraud for overcharges to five customers. Fichner was reprimanded, ordered to provide restitution, and fined
$5,000. That decision was affirmed by the Appellate Division.
The current group of charges, consisting of eight counts, was filed by the Attorney General on July
30, 1992 and focused on Fichner's conduct in dealing with seven customers. The Attorney General alleged
that Fichner engaged in fraud and occupational misconduct by charging excessive prices and by providing
misleading explanations of his prices and services. The Attorney General, in her capacity as counsel to the
Board, retained Robert Muller, a licensed master plumber accepted as an expert, to visit the homes of each
customer to determine what work was done, and to present his opinion as to the reasonableness of the
charges based on the time and parts used at each job. Muller calculated that Fichner had overcharged each
customer, often by as much as 100%.
Fichner challenged the methodology and theory of excessive pricing used by Muller. Fichner
presented several plumbing and accounting experts who testified that prices should be derived by calculating
several factors, including office overhead. Those experts concluded that even if one accepted the time and
parts estimates offered by the State's expert, Fichner's fees were not excessive, but simply reflected his
overhead plus a profit margin ranging from negative to 39" profit.
The Board adopted the methodology and conclusions of the State's expert and concluded that
Fichner's charges were excessive in all seven cases. In addition, the Board relied on Fichner's misleading use
of the term "rebuilt" and his use of illegible estimates as evidence that his conduct was fraudulent. The
Board assessed $35,000 in civil penalties; ordered Fichner to make restitution to each customer; ordered him
to pay administrative costs of $10,000; and ordered a suspension of his license for five years, agreeing to stay
that suspension if Fichner paid all of the penalties.
On 10/1/93, Fichner appealed the Board's final decision to the Appellate Division, arguing that: the
regulations were vague and infringed on his freedom of contract; one claim was barred by res judicata; and
the decision was based on erroneous factual and legal conclusions. During the pendency of the appeal,
Fichner moved for dismissal or for leave to amend the appeal and expand the record. Fichner informed the
Appellate Division that two of the Board's members had not been eligible to sit on the Board. In early 1995,
Fichner discovered that a third member was also ineligible. The Appellate Division ordered the State to
submit the specific credentials of each Board member who had participated, and to explain how those
credentials related to the statutory mandates. The Attorney General conceded that two of the three
members were ineligible, but contended that their votes should still be counted under the common-law de
facto officer doctrine, which typically holds valid the acts of a person exercising the duties of a public office
under the color of authority, if the acts are in the interests of the public and third persons.
The Appellate Division concluded that three of the Board members were ineligible, rejecting the
Attorney General's arguments concerning the de facto officer doctrine. The court reasoned that the
haphazard appointment of so many statutorily unqualified persons to a Board with such important functions
displays indifference to the appointment process and, thus, does not deserve the protection of the de facto
officer doctrine. The court also determined that the vote of a fourth member could not be counted because
that member had not attended any of the hearings. Because the governing statute requires that a decision to
discipline be made by a majority of the members of the entire Board, the Appellate Division invalidated the
Board's decision. The court remanded for a hearing before a properly constituted Board, without
considering any of Fichner's other arguments.
The Supreme Court granted the State's petition for certification.
HELD: In the circumstances of this case, a reconstituted Board of Examiners of Master Plumbers should
reconsider the charges against Joseph Fichner, Jr., and may do so on the record already developed
in these proceedings.
1. The de facto officer doctrine is founded on principles of practicality and convenience in the administration
of justice. New Jersey law has long recognized the existence of the de facto officer doctrine. The questioned
members of the Board had been duly appointed by the Governor but certain requirements or conditions of
office had not been met; therefore, those members were de facto officers. (pp. 10-12)
2. The U.S. Supreme Court has declined to invoke the de facto officer doctrine in cases that involve basic
constitutional protections designed in part for the benefit of the litigants. Here, the error in the composition
of this Board is not of constitutional dimension. The Court does not agree with the Appellate Division that
the qualifications of the public member were established for the benefit of the litigants, nor is it at all certain
that the qualifications of the other members were established for the benefit of the licensees. Nevertheless,
in the unusual circumstances of this case, the Appellate Division's disposition will stand. In the future,
however, challenges to the statutory composition of a board must be made prior to the conclusion of the
Board proceedings. Here, a remand for reconsideration of the matter by a properly composed Board will
serve the interest of the public and the licensee. It is not necessary to conduct a new hearing; the Board may
impose discipline on the basis of the existing record. It is in the public interest that this four- year litigation
be resolved with reasonable promptness. Principles of administrative due process will be satisfied by a
careful assessment of the record and the extent of any penalty may be reconsidered in light of that
assessment. (pp. 13-18)
As MODIFIED, the judgment of the Appellate Division is AFFIRMED.
CHIEF JUSTICE WILENTZ and JUSTICES HANDLER, POLLOCK, GARIBALDI, STEIN and
COLEMAN join in JUSTICE O'HERN's opinion.
SUPREME COURT OF NEW JERSEY
A-
125 September Term 1995
IN THE MATTER OF THE SUSPENSION OR
REVOCATION OF THE LICENSE OF
JOSEPH FICHNER, JR.
LICENSE NO. 6213
TO ENGAGE IN THE PRACTICE OF MASTER
PLUMBING IN THE STATE OF NEW JERSEY
Argued March 11, 1996 -- Decided June 18, 1996
On certification to the Superior Court,
Appellate Division, whose opinion is reported
at
282 N.J. Super 422 (1995).
Bertram P. Goltz, Jr., Deputy Attorney
General, argued the cause for appellant Board
of Examiners of Master Plumbers (Deborah T.
Poritz, Attorney General of New Jersey,
attorney; Joseph L. Yannotti, Assistant
Attorney General, of counsel).
W. Peter Ragan argued the cause for
respondent Joseph Fichner, Jr. (Blankenhorn &
Ragan, attorneys).
The opinion of the court was delivered by
O'HERN, J.
This appeal primarily concerns the de facto officer
doctrine. This common-law doctrine typically holds valid the
acts of a person exercising the duties of a public office under
the color of authority if the acts are in the interests of the
public and third persons. In this case, because three members of
an occupational licensing board lacked the statutory
qualifications for exercise of the office and another had not
heard any of the evidence at the relevant disciplinary
proceedings, the Appellate Division ordered the proceedings to
commence anew. We are satisfied, in the circumstances of this
case, that a reconstituted board should reconsider the charges,
but we hold that it may do so on the basis of the record
developed in these proceedings.
The claimed irregularities arose out of an administrative proceeding, conducted by the State Board of Examiners of Master Plumbers (Board), that resulted in a $35,000 fine assessed against Joseph Fichner and possible revocation of his license.
The State Plumbing License Law of 1968, N.J.S.A. 45:14C-1 to -27, created the Board of Examiners of Master Plumbers and authorized it to license and regulate plumbers throughout the state. The Board examines and licenses those plumbers meeting the qualifications necessary to become a "master plumber," as defined by N.J.S.A. 45:14C-2(a). The Board originally consisted of seven members: three master plumbers with ten years experience, one local plumbing inspector who has held such appointment for at least ten years, one journeyman plumber with ten years experience, and two representatives of the public having no association with the plumbing industry. N.J.S.A. 45:14C-3. The Legislature has since added two additional members to represent the interests of the public, one of which is a
holder of a designated office or position in a department of the
Executive Branch of the State Government that is closely related
to the plumbing profession. N.J.S.A. 45:1-2.2(b),(c). However,
because this State Government position and one of the Section
14C-3 public member positions were vacant, only a seven member
Board participated in the final decision in this case.
All State occupational and professional licensing boards may
penalize licensees for engaging in certain conduct, including
fraud and occupational misconduct, as defined by the appropriate
board. N.J.S.A. 45:1-21. The Board, pursuant to this authority,
has promulgated regulations defining occupational misconduct.
N.J.A.C. 13:32-1.12(c) provides that a plumber who charges
excessive prices commits occupational misconduct.
Joseph Fichner, Jr., is a licensed master plumber doing
business as A-1 Plumbing and Heating, Inc., of Freehold, New
Jersey. The Board has twice charged Fichner with occupational
misconduct because of his allegedly fraudulent business
practices, including charging excessive prices.
The first set of charges in 1988 involved overcharges to
five customers. The Board found him guilty of occupational
misconduct and fraud. The Board reprimanded Fichner, ordered
restitution and fined him $5,000. Fichner appealed the decision
and the Appellate Division affirmed.
The current group of charges, consisting of eight counts,
was filed by the Attorney General on July 30, 1992, and focused
on Fichner's conduct in dealing with seven other customers. The
Attorney General alleged that Fichner engaged in fraud and
occupational misconduct by charging excessive prices and by
providing misleading explanations of his prices and services.
Regarding each of the seven charged incidents, the customer
and Mr. Fichner presented the Board with their versions of what
occurred. In addition, the Attorney General, in her capacity as
Counsel to the Board, retained Robert Muller, a licensed master
plumber accepted as an expert, to visit each customer's home,
determine what work was done, and present his view as to the
reasonableness of the charge based on the time and parts used at
each job.
We compress some examples of the Board's findings. A
prospective customer called A-1 Plumbing because he had received
an unusually high water bill. Fichner came over and told him
that the toilet was leaking and needed to be "rebuilt," at a cost
of $265. The customer agreed to this price, assuming from the
description "rebuilding" that the job would be quite lengthy and
complicated. The job took twenty minutes and involved replacing
$12 worth of parts. Muller, the State's expert, agreed with the
customer's interpretation of "rebuild" as implying a complete
overhaul of the toilet and testified that the use of the term was
inappropriate in this case. Fichner and three of his plumbing
experts, however, disagreed and stated that the term "rebuild"
was appropriate to use in this context because, within the
industry, it implied a restoration of the toilet to functional
use. "Remanufacture" was the appropriate term for complete overhauls.
Another customer called A-1 Plumbing after she discovered
water in her basement along with smoke and a burning smell. She
was hysterical and in a state of panic before Fichner arrived.
He came quickly and examined the problem. He gave her an
estimate of $735, and she told him to fix the problem. Fichner
fixed the problem. The customer testified that Fichner did a
good job but that his work took less than one hour and that he
was nasty with her on the phone when she attempted to stop
payment on her check. The State's expert agreed that the job
should have taken not more than one hour. Fichner testified that
he had given the customer an estimate in advance, worked for 2-3/4 hours on the problem, and was not nasty on the telephone
after the customer stopped payment on her first check. However,
he was upset with customers who tried to renegotiate an agreed
price after he had already done the work. He could not take back
the work, and customers were trying to take advantage of that
fact.
A senior citizen called Fichner when she noticed a slow leak
in her bathroom tub. Fichner gave her an estimate of $347. He
fixed the leak in a few minutes. She then asked him about fixing
a leak in her kitchen faucet. He agreed to do that for $185.
When she said that she could not afford it, Fichner fixed the
faucet for free. She claimed that he spent less than an hour
working on both problems. The State expert allowed one hour's
charge to Fichner for his work and counted $16 in parts. Muller
believed that Fichner fixed the second problem, the leaking
kitchen sink, simply by replacing the washer. Fichner said that
he spent two hours working on the two problems, and that he used
$40 in parts. There were similar disputes about the facts of
each case, sometimes even between the State's expert and the
complaining customers.
Both parties presented conflicting expert testimony
concerning the appropriate theory to determine whether pricing
was excessive and what the "appropriate" prices should have been.
The Attorney General's expert examined each complainant's home to
ascertain what work was done. He then arrived at estimates of
reasonable charges. He calculated that Fichner grossly
overcharged each customer, often by as much as 100%. For
example, he estimated that the usual and customary charge for
repairing a leaking toilet (our first example) was $109, while
Fichner charged $265.
Fichner sharply challenged the methodology and theory of
excessive pricing used by the State's expert. Fichner presented
several plumbing and accounting experts who testified that prices
should be derived by calculating a number of factors, including
office overhead. Those experts, and Fichner himself, concluded
that even if one accepted the time and parts estimates offered by
the State's expert, Fichner's fees were not excessive but simply
reflected his overhead plus a profit margin ranging from negative
(i.e., the job did not cover all of his overhead) to 39" profit.
The Board adopted the methodology and conclusions of the
State's expert and concluded that Fichner's charges were
excessive in all seven cases because they exceeded "the usual and
customary price for the service rendered." In addition, the
Board relied on Fichner's misleading use of the term "rebuild"
and his use of illegible estimates as evidence that his conduct
was fraudulent.
The Board observed that Fichner had "not changed his modus
operandi one whit since the prior disciplinary action of this
Board [was] affirmed upon appellate review." The Board assessed
$5,000 in civil penalties for each of the seven violations,
$35,000 in all. Additionally, the Board ordered Fichner to make
restitution to each customer for the amount by which his charge
was excessive, and ordered him to pay costs of $10,000 including
the cost of stenography and the fee of the State's expert.
Finally, the Board ordered a suspension of his license for five
years, but agreed to stay the suspension if Fichner paid all of
the penalties.
Fichner appealed the Board's final decision on October 1,
1993. He argued that the regulations were vague and infringed
upon freedom of contract, that one claim was barred by res
judicata, and that the decision was based on erroneous factual
and legal conclusions.
A year and a half later, Fichner moved before the Appellate
Division for dismissal or, in the alternative, for leave to amend
the appeal and expand the record. Fichner informed the court
that two members had not been eligible to sit on the Board.
In early 1995, Fichner added additional information. He had
discovered that a third member was ineligible. The Appellate
Division ordered the State to submit "the specific credentials of
each Board member who participated . . . and explain how those
credentials relate to the [statutory mandates.]" The Attorney
General filed a brief, conceding that two members were ineligible
but disputing the claim about a third member, and arguing that
their votes should still be counted under the de facto officer
doctrine.
The Appellate Division examined the qualifications of the
Board members and found that three were ineligible to be members.
282 N.J. Super. 422, 426.See footnote 1 The court rejected the Attorney
General's argument that the members' votes should be counted as
de facto officers. It ruled:
The haphazard appointment of so many
statutorily unqualified persons to a board
performing such important functions displays
indifference to the appointment process.
This does not deserve the protective gloss of
the de facto doctrine.
The court distinguished this case from holdings in other
jurisdictions "because the plain language of the appointing
statute disqualified them from holding office," but conceded that
other courts had not made this distinction. Id. at 427.
Having excluded the votes of three of the seven members, the
court then determined that the vote of a fourth member could not
be counted because he had not attended any of the hearings. Id.
at 428. Using an analogy drawn from the Municipal Land Use Law,
the court recognized that
a Board member's vote is not necessarily
invalidated because he or she failed to
attend every single meeting at which the
hearing was conducted. He or she may miss a
meeting, read a transcript or listen to a
recording . . . and certify in writing to the
Board that he or she has read the transcript
or listened to the recording.
The court noted that the member had not submitted any such
certification, but decided that such a certification would have
been insufficient.
It is one thing to miss a meeting or two and
be able to render a fair and impartial
decision on the matter. It is quite another
to miss every meeting and vote in a case in
which the testimony of every lay and expert
witness required an evaluation of
credibility. No such evaluation could have
been made by Landolfi from the cold record.
The governing statute requires that a decision to discipline
be by a majority of the members of the entire Board. N.J.S.A.
45:1-2.2(d). Of the seven members who voted for the discipline,
three lacked the statutory qualifications and one was not
familiar with the record. Accordingly, the court invalidated the
Board's decision because it was not approved by a majority. It
remanded for a hearing before a properly constituted board
without considering any of Fichner's other arguments. Id. at
429-30.
The State sought certification, arguing that the Appellate
Division erred in refusing to apply the de facto officer doctrine
and in requiring members to attend hearings personally. We
granted certification.
143 N.J. 319 (1995).
The essence of the de facto officer doctrine is that one who claims to be a public officer while in possession of an office and ostensibly exercising its functions lawfully and with the acquiescence of the public is a de facto officer whose lawful acts, so far as the rights of others are concerned, are, if done within the scope and by the apparent authority of the office, as
valid and as binding as if the officer were legally qualified for
the office and in full possession of it. In re Bunker Hill Urban
Renewal Project 1B of Community Redevelopment of City of Los
Angeles,
389 P.2d 538, 552 (Cal.), cert. denied sub nom. Babcock
v. Community Redevelopment Agency of Los Angeles,
379 U.S. 899,
85 S. Ct. 185,
13 L. Ed.2d 174 (1964). Although rooted in
antiquity,See footnote 3 the de facto officer doctrine serves the needs of
contemporary society. Clokey, supra,
85 Colum. L. Rev. 1121,
1121. Like so many other principles of the common law, the
doctrine is founded on tenets of practicality and convenience in
the administration of justice.
The de facto doctrine is one of a number
of rules ensuring the stability of
governmental processes. "The acts of de
facto officers are sustained because the
office is created by the public and put in
operation as part of a system of organized
society. . . . Continued administration of
the office becomes necessary to the proper
adjustment of its affairs and the perpetuity
of the system." Without the doctrine,
uncertainty would cloud every action taken by
officials who had not previously demonstrated
perfect title [to the office that they hold].
[Id. at 1131 (quoting In re Norton,
68 P. 639, 640 (Kan. 1902)) (footnotes omitted).]
Our law has long recognized the existence of the de facto
officer doctrine. In Jersey City v. Department of Civil Service,
57 N.J. Super. 13 (App. Div. 1959), Judge Goldman traced New
Jersey's acceptance of the doctrine. The question in that case
was whether there can be a de facto holder of a position that has
no de jure existence, that is, an office that is not in full
compliance with all requirements of law. The court adopted the
view of the doctrine expressed in State v. Carroll,
38 Conn. 449
(Sup. Ct. Err. 1871), the leading case on the subject. "`An
officer de facto is one whose acts, though not those of a lawful
officer, the law, upon principles of policy and justice, will
hold valid so far as they involve the interests of the public and
third persons, where the duties of the office were exercised.'"
Jersey City, supra, 57 N.J. Super. at 27 (quoting Carroll, supra,
38 Conn. at 471-72). An example of when de facto office holding
is recognized is when the officer holds office "under color of a
known and valid appointment or election, but where the officer
had failed to conform to some precedent requirement or condition,
as to take an oath, give a bond, or the like." Ibid. (quoting
Carroll, supra, 38 Conn. at 471-72).
The questioned members of the Board of Examiners of Master
Plumbers in the within case had been duly appointed to the Board
by the sitting Governor but certain requirements or conditions of
office had not been met. Accordingly, they were de facto office
holders.
The challenge here is almost identical to that raised in
Feinblum v. Louisiana State Board of Optometry Examiners,
97 So.2d 657 (La. Ct. App. 1957). In that case, the statute
provided that each member of the Board be appointed from a list
submitted by an organization that had ceased to exist. The
Governor, however, had been appointing members to the Board from
a list that was not in accordance with the statute. The court
held that the Board members were de facto officers and that the
optometrist could not successfully enjoin the Board from holding
any hearings on charges against the optometrist on the ground
that the Board was illegally constituted. Id. at 663.
The Feinblum court noted that the de facto officer doctrine
is designed to prevent disciplinary licensing proceedings from
turning into contests over the qualifications of the officers,
precisely what has happened in this case. Id. at 661-62.
Unqualified officers should be removed from office by an attorney
general or a claimant to the office under the prerogative writ of
quo warranto, asking by what warrant the office is held. Murphy
v. Ellenstein,
119 N.J.L. 159, 160 (Sup. Ct. 1937). (More likely
if informed of their disqualification, most would promptly
resign.) The theory behind that procedure is that the office is
created by the public and thus the public has the interest in the
proper status of office holders.
Of course there are limits to the doctrine. One commentator
has argued that "the doctrine should not apply when a
qualification for a specific office aims to protect the
individuals subject to that official's authority. A breach of
these statutes gives individuals a sufficiently personalized
injury to challenge official action on the ground of defective
title [to the offices]." Clokey, supra,
85 Colum. L. Rev. at
1135. An example is in the composition of draft boards. That
the registrant's draft status be determined by "neighbors" was
sufficiently important to allow the title of the Board members to
be raised in a collateral attack by a draft resister. United
States v. Beltran,
306 F. Supp. 385, 387 (N.D. Cal. 1969).
The Supreme Court has declined to invoke the de facto
officer doctrine in cases that involve "basic constitutional
protections designed in part for the benefit of litigants."
Glidden Co. v. Zdanok,
370 U.S. 530, 536,
82 S. Ct. 1459, 1465,
8 L. Ed.2d 671, 679 (1962); see also Andrade v. Lauer,
729 F.2d 1475, 1498 (D.C. Cir. 1984) (stating that courts should avoid
interpretation of de facto officer doctrine that would likely
make it impossible for parties to raise assumedly substantial
constitutional claims and that would render legal norms
concerning appointment and eligibility to hold office
unenforceable).
Obviously, the error in the composition of this Board is not
of constitutional dimension. However, the Appellate Division
reasoned that the qualifications of the various members of the
licensing board were established in part for the benefit of the
litigants and that they should therefore be entitled to invoke
the statutory requirements. We do not agree that the
qualifications of the public member were established "for the
benefit of litigants" and are not at all certain that the
qualifications of the other members were established for the
benefit of the licensees. In the unusual circumstances of this
case, we are satisfied to let stand the Appellate Division's
disposition, although we will insist in the future that
challenges to the statutory composition of a board (at least
insofar as entitlement to office is concerned) be made prior to
the conclusion of the Board proceedings. Little effort is
required to ascertain such qualifications. In Ryder v. United
States, 515 U.S. ___,
115 S. Ct. 2031,
132 L. Ed.2d 136 (1995),
the Supreme Court permitted a constitutional challenge to the
composition of the Board of Military Review but only because the
issue had been raised in a direct challenge while the case was
pending before that Board, implying that a challenge such as
Fichner's should have been raised before the hearing board.
We believe that a remand for reconsideration of the matter
by a properly composed Board will serve the interests of the
public and the licensee in this case. It is not necessary to
conduct a new hearing in this matter. The Board may impose
discipline on the basis of the existing record. "It is
undoubtedly a requirement of due process that `the one who
decides must hear.'" Pittsburgh S. S. Co. v. National Labor
Relations Bd.,
167 F.2d 126, 128 (6th Cir. 1948) (quoting Morgan
v. United States,
298 U.S. 468, 481,
56 S. Ct. 906, 912,
80 L.
Ed. 1288, 1295 (1936)), rev'd on other grounds,
337 U.S. 656,
69 S. Ct. 1283,
93 L. Ed. 1602 (1949). But the requirements of due
process rarely "require auditory perception of all the evidence
by each board member who votes." Feist v. Rowe,
83 Cal. Rptr. 465, 474 (Cal. Ct. App. 1970); see also Pettiford v. South
Carolina State Bd. of Educ.,
62 S.E.2d 780, 791 (S.C. 1950)
(declaring that general rule that administrative board must
consider all evidence before rendering its decision does not mean
that board must itself hear evidence but it must have evidence
before it and consider such evidence when rendering its
decision), cert. denied,
341 U.S. 920,
71 S. Ct. 742,
95 L. Ed. 1354 (1951). "In common practice, deciding officers [at an
administrative level] develop their understanding of evidence not
only through reports of subordinates but especially through
summaries and explanations in briefs and oral arguments of
parties." Bates v. Sponberg, 547 F.2d 325, 332 (6th Cir. 1976).
What is required under principles of administrative due
process is "personal familiarity with the evidence on the part of
responsible deciding officers and agency heads in contested-case
adjudications." Lone Star Greyhound Park v. Texas Racing Comm'n,
863 S.W.2d 742, 749 (Tex. Ct. App. 1993) (quotation omitted).
That court relied on the Model State Administrative Procedure Act
(1962), 15 U.L.A. § 11 at 141-42 (1990), with its requirement
that agency decision makers "(1) hear the evidence, (2) read the
record, or (3) entertain briefs and oral arguments following a
proposal for decision . . . ." Lone Star, supra, 863 S.W.
2d at
749. Those requirements have a purpose: They are "intended to
preclude `signing on the dotted line.'" Ibid. (quoting 15 U.L.A.
§ 11 at 141-42 (comment)).
In Fifth Street Pier Corp. v. City of Hoboken,
22 N.J. 326,
337 (1956), the Court sustained a panel procedure used by the
former Division of Tax Appeals so long as the litigants could
file exceptions to any panel report and "make an impressionable
contact with the powers of decision," and, in effect, correct any
due process deficiency. See also In re Morrison,
216 N.J. Super. 143 (App. Div. 1987) (meaningful agency review of findings of
administrative law judge requires only that agency be timely
supplied with parts of transcript relating to exceptions to those
findings, and that agency then review those portions that relate
to material issues raised by contestant's exceptions); In re
North Jersey Dist. Water Supply Comm'n,
175 N.J. Super. 167 (App.
Div.) (upholding panel report procedure, wherein Water and Supply
Council designated members to read and digest testimony in fifty-nine day water diversion project hearing when only four members
attended over half of meetings, and no member attended all of
meetings), certif. denied,
85 N.J. 460 (1980).
The members of the reconstituted Board shall read the record
of the prior proceedings and, in addition, entertain briefs. The
licensee insists that only a new evidentiary hearing will satisfy
the requirements of due process because credibility issues are at
stake. It is not at all uncommon for a reviewing court to
conduct a trial de novo on the record below, as is now done in
appeals from municipal courts to the Law Division under Rule
3:23-8(a). And although it is true that in contested
administrative matters a reviewing body must give considerable
deference to the actual findings of the one who hears the
evidence, agency heads retain the power to make the ultimate
findings of fact. Clowes v. Terminix Int'l,
109 N.J. 575, 587
(1988).
Moreover, the record in this case appears to us to lend
itself to disposition on the record. We doubt that the Board
will have to resolve difficult issues of fact in deciding whether
Fichner's charges were reasonable. The Board may assess the
methodology employed by Muller, the expert witness presented at
the prior hearing. Fichner did not so much dispute the facts but
rather the propriety of the Board's conclusions, relying at one
point on the principles of the free-market. He believed that he
could rely on the prices quoted to the customers, observing, "I
mean, this is America." This case has been going on since 1992.
It is in the public interest that the case be resolved with
reasonable promptness. Principles of administrative due process
will be satisfied by a careful assessment of the record. The
extent of any penalty may be reconsidered in light of such an
assessment. In re Polk,
90 N.J. 550 (1982).
As modified, the judgment of the Appellate Division is
affirmed.
CHIEF JUSTICE WILENTZ and JUSTICES HANDLER, POLLOCK, GARIBALDI, STEIN and COLEMAN join in JUSTICE O'HERN's opinion.
NO. A-125 SEPTEMBER TERM 1995
ON APPEAL FROM
ON CERTIFICATION TO Appellate Division, Superior Court
IN THE MATTER OF THE SUSPENSION
OR REVOCATION OF THE LICENSE OF
JOSEPH FICHNER, JR.
LICENSE NO. 6213
TO ENGAGE IN THE PRACTICE OF
MASTER PLUMBING IN THE STATE OF
NEW JERSEY
DECIDED June 18, 1996
Chief Justice Wilentz PRESIDING
OPINION BY Justice O'Hern
CONCURRING OPINION BY
DISSENTING OPINION BY
Footnote: 1One appointed to the position reserved by N.J.S.A. 45:14C-3 for a plumbing inspector with more than ten years of experience as of the date of appointment had only four years experience; one appointed to the additional public seat reserved by N.J.S.A. 45:1-2.2b for one who has no "association or relationship with the profession or a member thereof . . . where such association or relationship would prevent such public member from representing the interest of the public" was the business representative for the plumbers union; another appointed to the position reserved for journeyman plumbers by N.J.S.A. 45:14C-2(f) was a licensed master plumber. The Attorney General argued that because the member in the journeyman position never rendered plumbing services to the public under this license, he was eligible to serve as the designated journeyman plumber. In view of the disposition we make, we need not debate the validity of this argument. Footnote: 2The court rejected the Attorney General's claim that "it is too late in the day for Fichner to be raising questions concerning the statutory eligibility qualifications of Board members" because the court believed that it would be too difficult to investigate board misconduct during the hearing and it wished to allow licensees time to discover violations. 282 N.J. Super. at 429. However, the court warned that "by no means is our holding an invitation to others to reopen Board proceedings previously decided and no longer under appellate review." Ibid. Footnote: 3Proving once again the old adage, plus ca change, plus c'est la meme chose (the more things change, the more they remain the same), "[t]he de facto officer doctrine finds its earliest expression in The Abbe de Fontaine. [Y.B. 9 Hen. 6, f. 32, pl. 3 (1431).] In that case, a convent tried to avoid a bond obligation, claiming the abbot who guaranteed it improperly assumed office after losing the election." Kathryn A. Clokey, Note, The De Facto Officer Doctrine: The Case for Continued Application, 85 Colum. L. Rev. 1121, 1125 (1985) (footnote omitted) [hereinafter Clokey].