Reversal Without Remand of Civil Service Commission Matter to Consider Admissibility of Potentially Relevant Evidence Was Error

In re Corbo, 238 N.J. 246 (2019). Justice Fernandez-Vina’s opinion for a 6-0 Supreme Court today (Justice Timpone did not participate) is unusual in that it addresses not the substantive issues involved, but the remedy imposed. The Civil Service Commission had issued a final agency decision removing Officer Corey Corbo from the Union City Police Department because he had ingested cocaine. Corbo appealed, and the Appellate Division reversed on the ground that there was “no competent evidence” to support removing Officer Corbo. But the panel did not remand the matter to allow consideration of whether hospital records that might have justified a different result were admissible. The Supreme Court granted review, as discussed here.

Justice Fernandez-Vina did not need to spill much ink to hold that the Appellate Division had erred. Citing a number of prior decisions, he stated that “[c]ase law demonstrates that the preferred remedy to rectify procedural errors at the administrative level is a remand. When an administrative agency’s decision is not accompanied by the requisite findings of fact and conclusions of law, the usual remedy is to remand the matter to the agency to correct this deficiency.”

The Appellate Division’s ruling deprived Union City of the opportunity to present its case on the merits, with the full panoply of potentially available evidence. “The preferred remedy to rectify procedural errors at the administrative level is to remand the matter to allow for further evidentiary findings.” Accordingly, the Court remanded the matter to the Office of Administrative Law (“OAL”) “for further proceedings to allow the City the opportunity to demonstrate that the hospital records are admissible as business records, and the opportunity to present any other theories of admissibility.” Justice Fernandez-Vina cautioned, however, that the Court was not making any rulings on evidence, but was leaving that to OAL.