WCNYH

New Jersey Appellate Division Affirms the Commission’s Revocation of Hiring Agent’s License

January 7, 2015

           On January 7, 2015, the Superior Court of New Jersey, Appellate Division affirmed the decision of the Waterfront Commission to revoke the license of hiring agent Pasquale Pontoriero.

           The Commission had charged Pontoriero with associating with Tino Fiumara and Stephen DePiro, who were convicted racketeers, career offenders and identified members of the Genovese Crime Family. Pontoriero had attended a private birthday dinner for Fiumara, and had visited DePiro at his house on two occasions. After an administrative hearing, Administrative Law Judge Patrick McGinley found that the Commission established the charges against Pontoriero by a fair preponderance of the credible evidence, and recommended that Pontoriero’s license be revoked. Having duly considered the record of the proceedings and the ALJ’s Report and Recommendations, the Commission revoked Pontoriero’s license.

           On appeal, Pontoriero challenged the Commission’s interpretation of the association provisions of the Waterfront Commission Act as being a strict liability statute. He argued that the Commission failed to use the proper definitions of “association” and “inimical” in making its determination that he had associated with Fiumara and DePiro under circumstances that were inimical to the polices of the Act. He contended that the relevant sections of the Act were unconstitutionally vague, and that the revocation of his license was disproportionate to the alleged offense and shocking to one’s sense of fairness.

           The Appellate Division summarily rejected these arguments and found that the Commission’s findings of fact and conclusions of law were legally sound and supported by sufficient credible evidence of record. In its precedential opinion finding that Pontoriero violated the association provisions of the Act, the court upheld the Commission’s interpretation of “association” as encompassing the ordinary meaning of the term: “to keep company, as a friend, companion or ally,” which included both social and economic relationships. The court also endorsed the Commission’s interpretation of “inimical,” as being “adverse to the public confidence and trust in the credibility, integrity and stability of the waterfront and in the strict regulatory process of the Act.”

           The court observed that the Genovese crime family’s control of the waterfront “depends just as much on the perception of influence as it does on actual influence.” Accordingly, the Commission did not have to show that Pontoriero met with Fiumara and DePiro for an illegitimate purpose, or that he knew or should have known of their criminal histories. Rather, since the Act “is just as concerned with the perception of corruption as it is with actual collusion between hiring agents and organized crime,” Pontoriero’s alleged association only needed to create a reasonable belief that his continued participation as a hiring agent was inimical to the Act, and adverse to public confidence and trust.

           In so holding, the court found that the Act’s association provision was not unconstitutionally vague. The court also found that the penalty of revocation of Pontoriero’s license does not shock one’s sense of fairness. The Court held that, “[a]ppellant’s position as a hiring agent is a sensitive position, granting discretionary authority over longshoremen, and serving as the keystone to corruption on the waterfront. Appellant’s association with the Genovese family demonstrates a lack of good character and integrity, and allowing him to continue working as a hiring agent would further undermine public confidence in the integrity and stability of the waterfront.”

           Genovese capo Tino Fiumara died during the pendency of the Pontoriero hearing. Genovese soldier Stephen DePiro pleaded guilty to Racketeering Conspiracy on December 19th , 2014 in Federal Court in Newark in connection with the extortion of Christmastime tributes from ILA members working on the New Jersey piers. DePiro will be sentenced on March 10, 2015.

           A complete copy of the Court’s Decision and Order is attached.

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