On appeal from Decision and Order of Commissioner of Health.
Antell, Joelson and McElroy. The Opinion of the Court was Delivered by, Antell, P.J.A.D.
[194 NJSuper Page 438] This is an appeal from a final decision and order of the State Commissioner of Health ("Commissioner") filed May 27, 1983 revoking respondent's license as a nursing home administrator. The proceedings were begun on a complaint filed by the Nursing Home Administrator's Licensing Board ("Licensing Board") in August 1981 alleging misconduct by respondent as administrator of the Armenian Home for the Aged. The complaint was amended, and hearings were commenced in October 1982, continuing on different days thereafter before an administrative law judge ("ALJ"). The record was closed February 14, 1983 and the ALJ's initial report and recommendation was filed
March 31, 1983. In substance, the charges against respondent were that she had (1) upbraided certain residents in a loud and angry voice, (2) physically abused certain residents, (3) invaded the privacy of certain residents, (4) locked one of the residents in a room, thereby endangering her safety, and (5) solicited an employee to sign as witness to a will whose execution she had not actually observed.
In his initial decision the ALJ recommended dismissal of all charges except the last, as to which he recommended a minor reprimand. In recommending dismissal of the other charges, he commented that the entire case, with the one exception, "amounted in large measure to a waste of the State's and the respondent's time and money," and that "any suspension or revocation of the respondent's license is clearly out of the question." The ALJ's report was thereupon referred to the Licensing Board for review, and on May 19, 1983 that body by resolution voted unanimously to recommend, consistent with the complaint it had filed, that respondent's license should be revoked. The resolution further noted that the Licensing Board took "strong exception" to the ALJ's opinion that the case was a waste of the State's time and to his view that suspension or revocation was clearly out of the question.
The Licensing Board's resolution was forwarded to the Commissioner who thereupon prepared and filed the decision and order before us for review. Although he concurred with the ALJ that many of the charges against respondent had not been supported by the evidence, he concluded that the five charges under consideration had been proved and rejected the ALJ's findings and conclusions to the contrary. Concluding that respondent's actions were "reprehensible under standards of professional conduct" he approvingly noted the Licensing Board's opinion that the ALJ had shown "a disturbing insensitivity to the dignity and welfare of the nursing home patients," and opined that it was "particularly offensive to excuse many instances of patient abuse, as the Administrative Law Judge has done, because the patients are Armenian." Elsewhere in
his decision he stated that the incidents of verbal and physical abuse had been conceded by the ALJ but that he "excused the instances as simply 'animated' conduct typical of Armenians." The Commissioner then commented that neither he nor the members of the Licensing Board "accept that characterization as being fair to Armenians, fair to the patients or fair to the corps of professionals in this field. . . ." He concluded with the observation that the ALJ had "glossed over serious abuses of the patients' rights and patients' welfare by Ms. Tegnazian, which cannot in good conscience be disregarded."
Before proceeding to the merits it is necessary to deal with a preliminary matter.
We remind the ALJ and the Commissioner that they are not rivals, but co-participants in a system of administrative justice which requires them to adjudicate controversies fraught with the gravest consequences to the adversaries who appear before them. It contemplates that the technical expertise of the administrative agency and the factfinding skills of the ALJ will harmonize to advance the common goal of securing in each individual case the highest and most sophisticated order of balanced professional judgment that special knowledge and training can provide. While it is not expected that their respective views will always coincide, it is essential that each recognize the limits of their different perspectives and give respectful deference to the role and authority of the other. We are here to judge cases, not one another. This is a demanding process in which caustic or recriminatory comments can play no part other than as distractions from the legally operative facts. Moreover, the exchange of reproachful and derogatory comments between governmental officials exercising judicial and quasi -judicial powers is demeaning to the appearance of justice. It is rich with the suggestion that the licensee who has been the subject of disciplinary action has simply fallen victim to bureaucratic strife and has been penalized for reasons having nothing to do with the merits of the proceeding.
In commenting as he did that the case was a waste of time and money, the ALJ improperly exceeded his authority which was limited to the making of objective and dispassionate recommended findings and conclusions for evaluation by the agency. By so doing he improperly drew into question the integrity and competence of a governmental body which had presumably acted in the conscientious discharge of a duty confided to its exclusive judgment. As is evident, the ALJ's action could only have been counterproductive to his own intent and inimical to an objective disposition of the charges since the Licensing Board could thereafter recommend to the Commissioner acceptance of the ALJ's recommendations only by endorsing his implication that the proceeding, which the Licensing Board had itself initiated, had been irresponsibly brought.
Equally inappropriate was the Commissioner's allusion to what he termed the ALJ's "disturbing insensitivity to the dignity and welfare of the nursing home patients." The "sensitivity" factor is one which properly falls within the province of agency expertise and it is naturally to be expected that the agency would be more sensitively attuned to the requirements of the patients than the ALJ. If the Commissioner's responses to the evidence differed from those of the ALJ he was at liberty to demonstrate this, as he did, by reaching his own independent conclusions. However, it was improper for him to impugn directly those of the ALJ.
With respect to the Commissioner's characterization of the ALJ's decision as an expression of ethnic bias, this was grounded in his misconception of a fact-finding methodology followed by the ALJ which was beyond reproach. One of the charges against respondent was that she shouted at the patients in an angry and abusive manner. In the portion of the ALJ's decision from which the Commissioner inferred an anti-Armenian prejudice the ALJ, in analyzing the testimony concerning such incidents, simply noted that certain of the witnesses
readily conceded that in addition to their not understanding the Armenian language it also was quite true that persons of Armenian descent do have a tendency to speak to one another in "animated" tones and, given the fact that many of the residents of the Home were hard of hearing, it was to be expected that voices would be raised in communicating with them.
The statement was made in the course of reviewing the testimony and it is obvious to us that the ALJ did nothing more than note the possibility that the witnesses, who were strangers to the Armenian language, mistook what they themselves perceived as an "animated" manner of expression characteristic of Armenian speech for angry verbal abuse. To moralize from this, as the Commissioner did, that "[w]hatever their ethnic background may be, the patients are rightfully entitled to humane, professionally temperate care and supervision," and to say that it was "particularly offensive to excuse many instances of patient abuse, as the Administrative Law Judge has done, because the patients are Armenian" was without the slightest justification. Because the Commissioner so completely misapprehended the import of the ALJ's comment, and because of his repeatedly expressed preoccupation with the mistaken belief that the initial decision was tainted by a vicious bias, we would be obliged to vacate his order of revocation quite independently of other defects in the proceedings under review to which we now turn.
N.J.S.A. 52:14B-10(d) provides that a final decision of an administrative agency in a contested case
shall include findings of fact and conclusions of law, separately stated and shall be based only upon the evidence of record at the hearing. . . .
Findings of fact, if set forth in statutory language, shall be accompanied by a concise and explicit statement of the underlying facts supporting the findings. The final decision may incorporate by reference any or all of the recommendations of the administrative law judge.
Paragraph (c) of the same section obliges the ALJ assigned to conduct hearings in a contested case to file a recommended report and decision with recommended findings of fact and conclusions of law with the state agency "in such form that it may be adopted as the decision in the case." Thus, ...