On appeal from the Civil Service Commission.
Michels, Petrella and Baime. The opinion of the Court is delivered by Michels, P.J.A.D.
This is an appeal and cross-appeal from a final administrative action of the Civil Service Commission (Commission) which modified the Morris County Board of Social Services' (Morris County) removal of Judith Cliff (Cliff) and Clinton A. Buddy (Buddy) from their respective positions as Assistant Head Nurse and Institutional Attendant at Morris View Nursing Home. The Commission found Cliff and Buddy guilty of various disciplinary infractions based on their participation in an illegal strike and suspended them for six months without back pay.
The events at issue in this appeal arose from the dismissal of Cliff and Buddy, who were employed at the Morris View Nursing Home in the Township of Morris, New Jersey, following
a strike by a majority of the employees at that facility on August 3, 1981. On the day of the strike Morris County sought and obtained an order to show cause with temporary restraints from the Chancery Division temporarily restraining the strike. On August 7, 1981, the Chancery Division permanently enjoined the strike and activities associated therewith, except for limited picketing on the opposite side of Hanover Avenue across from the Morris View Nursing Home.
Following a prolonged investigation into the events surrounding the August 3, 1981, strike, Morris County issued preliminary notices of disciplinary action against Cliff and Buddy. Both Cliff and Buddy were charged with neglect of duty, N.J.A.C. 4:1-16.9a(1), willful violation of the provisions of the Civil Service statutes, rules and regulations or other statutes relating to the employment of public employees, N.J.A.C. 4:1-16.9a(8) and with conduct unbecoming an employee in public service, N.J.A.C. 4:1-16.9a(11). Cliff was also charged with insubordination or serious breach of discipline, N.J.A.C. 4:1-16.9a(4). On January 11, 1982, a hearing was held regarding these charges and on January 27, 1982, final notices of disciplinary action were issued to Cliff and Buddy, removing them from their respective positions at the Morris View Nursing Home, effective February 1, 1982. Morris County sustained all charges against Buddy and sustained all but the charge of "conduct unbecoming an employee in public service" against Cliff. See N.J.A.C. 4:1-16.9a(11). Accordingly, Morris County filed termination of employee's services notices with the Commission and sent copies thereof to Cliff and Buddy. Cliff and Buddy appealed Morris County's decision to the Commission.
Thereafter, between September 9, 1982, and February 10, 1983, twenty-seven days of hearings were held before an Administrative Law Judge. At the conclusion of the proofs the Administrative Law Judge granted both Cliff's and Buddy's motions to dismiss the parallel charges of striking in violation of "current and continuing contractual obligations," but sustained all remaining charges against them. See N.J.A.C. 4:1-16.9a(8).
The Judge recommended, however, reduction of the penalty imposed from removal to a six-month suspension with an award of back pay for the period thereafter, mitigated by any income earned by Cliff and Buddy during that period.
Cliff and Buddy and Morris County all filed exceptions with the Commission, which, after an independent evaluation of the record, accepted and adopted the findings of fact and conclusions of the Administrative Law Judge and the recommendation that Cliff's and Buddy's removal be reduced to a six-month suspension. However, the Commission refused to adopt the recommendation that Cliff and Buddy receive back pay. Morris County appealed from that portion of the Commission's determination with regard to the reduction of the penalty from removal to suspension without back pay; Cliff and Buddy cross-appealed from those portions of the determination dealing with the findings of guilt and the imposition of the penalty.
We have studied carefully the entire record in the light of the arguments presented and are satisfied that the determination of the Commission is not arbitrary, capricious or unreasonable and does not lack full support in the evidence. See Henry v. Rahway State Prison, 81 N.J. 571, 579-580 (1980); Campbell v. Dept. of Civil Service, 39 N.J. 556, 562 (1963). Our role in reviewing the Commission's findings in a case of this kind is to determine "'whether the findings made could reasonably have been reached on sufficient credible evidence present in the record,' considering 'the proofs as a whole,' with due regard to the opportunity of the one who heard the witnesses to judge of their credibility . . . and . . . with due regard also to the agency's expertise where such expertise is a pertinent factor." Mayflower Securities v. Bureau of Securities, 64 N.J. 85, 92-93 (1973), (quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)). See also In re Suspension of Heller, 73 N.J. 292, 309 (1977); Jackson v. Concord Company, 54 N.J. 113, 117-118 (1969). We are satisfied that such evidence appears in the record.
Furthermore, it is not our function to substitute our independent judgment for that of an administrative body, such as the Commission, where there may exist a mere difference of opinion concerning the evidential persuasiveness of the relevant proofs. First Sav. & L. Assn. of E. Paterson v. Howell, 87 N.J. Super. 318, 321-322 (App.Div.1965), certif. den. 49 N.J. 368 (1967). As a reviewing court, we will not weigh the evidence, determine the credibility of witnesses, draw inferences and conclusions from the evidence, or resolve conflicts therein. See In re Tenure Hearing of Grossman, 127 N.J. Super. 13, 23 (App.Div.1974), certif. den. 65 N.J. 292 (1974).
We specifically reject the claims of Cliff and Buddy that the Administrative Law Judge erred by compelling them to answer not only those charges from the preliminary notices of disciplinary action sustained by Morris County in the final motion of disciplinary action but also those charges which Morris County dismissed and on which it made no findings in the disciplinary orders. Despite Cliff's and Buddy's claim the judge's ruling in this regard was not contrary to law and did not "so [cloud] the issues and evidence within the case so as to make a fair and impartial hearing impossible."
As to Cliff, the hearing officer made no finding with regard to charges 2A and 2B, alleging a violation of N.J.A.C. 4:1-16.9a(4), insubordination or serious breach of discipline, though sustaining that part of charge 2b "to the extent that the Nurse Practice Act (N.J.S.A. 45:11-23 et seq.) makes reference to the spirit in which the professional nurse is to deliver her services." As to charge 3b, alleging, pursuant to N.J.A.C. 4:1-16.9a(8), a willful violation of any of the provisions of the Commission statutes, rules or regulations or other statutes relating to the employment of public employees, the Hearing Officer decided that "an administrative hearing is an inappropriate ...