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Joint Petition of Boardwalk Regency Corporation v. New Jersey Casino Control Commission6/21/2002
Prison, 81 N.J. 571, 581 (1980) (citing Campbell v. Department of Civil Service, 39 N.J. 556, 562 (1963)).
Basically, an appellate court must determine whether the findings of fact:
could reasonably have been reached on sufficient credible evidence present in the record, considering the proofs as a whole, with due regard for the opportunity of the Commissioners who heard the witnesses to judge of their credibility. [In re Application of Boardwalk Regency Corp. for a Casino License, 180 N.J. Super. 324, 333 (App. Div. 1981), aff'd as modified, 90 N.J. 361 (1982).]
Thus, an appellate court must carefully consider "the agency's record and findings resting upon a determination of the worth, plausibility and consistency of that record." In re Hotel and Restaurant Employees and Bartenders Int'l Union Local 54, 203 N.J. Super. 297, 316 (App. Div.) (citation omitted), certif. denied, 102 N.J. 352 (1985), cert. denied sub nom, 475 U.S. 1085, 106 S. Ct. 1467, 89 L. Ed. 2d 723 (1986). Deference is appropriate where the Commission decides technical matters lying within its special competence or where experience is a pertinent fact. In re Application of Boardwalk Regency Corp., 180 N.J. Super. at 333 (citation omitted). If the Commission's findings and decision are supported by sufficient credible evidence, we will not disturb them even in cases in which, had we been doing it, we would have done it differently. Proper respect for the obligation of the agency to accomplish its statutory obligations and consideration for implementation of the legislative intent in the manner designed by the Legislature causes us to proceed with especial restraint in agency matters.
[Id. at 334 (citation omitted).] Confronted with the likelihood of license revocation and termination, DiBartolomeo had negotiated with Caesars for severance benefits which were not part of his employment agreement. He asked the Commission to permit Caesars to pay him $750,000, even though he had been found unsuitable for continued licensure and was prohibited from employment by a casino in any capacity. The Commission focused on whether it was reasonable and financially responsible for Caesars to continue to pay an individual whose license had been revoked, and employment terminated. The Commission disapproved the proposed severance agreement. It concluded that payment under such circumstances would be violative of public policy and contrary to the purposes of the Act. We agree.
There is sufficient credible evidence to support the Commission's findings. DiBartolomeo was the president of Caesars and held a casino key employee license. After a hearing, the Commission revoked DiBartolomeo's license, having determined that he lacked the requisite good character, honesty and integrity necessary to be licensed. N.J.S.A. 5:12-89. More specifically, the Commission found that DiBartolomeo blatantly violated the terms of a Commission order, lied repeatedly to regulatory officials about his gambling, and testified falsely during his licensing hearing. The facts underlying these findings were not contested. On February 28, 2001 the Commission revoked his license. As a result, DiBartolomeo was prohibited from working for Caesars in any capacity. N.J.S.A. 5:12-106c. We find no reason to disturb the Commission's findings. To have awarded payment to DiBartolomeo for a period of time when he was not legally eligible to be employed by a casino, would not have fostered public confidence in the industry.
IV.
We next address DiBartolomeo's argument that the rejection of the proposed severance agreement deprived him of his constitutional right to contract. This argument is also without merit. The fede
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