On appeal from final decision of the Merit Systems Board.
Before Judges Shebell and Landau.
The opinion of the court was delivered by LANDAU, J.A.D.
William F. Morley, appeals from a Final Administrative Action of the Merit System Board (Board), dated February 3, 1993, which adopted the recommended findings of an Administrative Law Judge (ALJ) that he committed insubordination and conduct unbecoming a public employee. The Board rejected, however, the ALJ's recommended penalty of a letter reprimand and reinstated the three day suspension initially imposed by the New Jersey Department of Labor. We affirm.
Morley, a New Jersey attorney, was appointed in 1983 through Civil Service as a private plan hearing officer in the Department of Labor, Division of Unemployment and Temporary Disability Insurance, (Division) and assigned to its Office of Administrative Appeals. Since 1987 he has worked as a private plan hearing officer presiding over, and deciding, adversarial hearings on issues of entitlement to disability benefits. The position requires a law degree and three years of experience in conducting general administrative hearings and/or legal research. Morley was the only private plan hearing officer in the Division, although there are other hearing officers who decide like issues respecting the State plan of disability benefits.
In September, 1990, the Director of the Division of Unemployment and Temporary Disability Insurance, Michael P. Malloy, ordered Morley to report directly to him. Morley had previously reported to the Chief Appeals Examiner, who in turn reported to Malloy. Morley objected to the change in reporting requirements.
Malloy testified that when Morley began reporting directly to him, he became concerned with the large proportion of settlements to hearings which suggested to Malloy that Morley was pressuring settlements in order to avoid holding plenary evidentiary hearings. Malloy explained his concern:
This, of course, resulted in delays in the processing of cases and some of the tactics that he used in his settlement process again gave me reason to pause about whether or not people were being afforded due process.
Between 1987 and May of 1991, Morley handled approximately 300 cases, of which roughly two-thirds settled.*fn1
The charges leading to the instant appeal, however, concern Morley's failure to comply with direction of superiors in the Department of Tabor regarding two private plan benefit cases: (1) In the Matter of Steven Trent, Docket Number HOPP91-19; and (2) In the Matter of Linda Whitesell, Docket Number HOPP91-22.
In a letter to Morley, Trent's lawyer, Daniel Waldman, complained: (1) that Morley called his office and told his secretary that he was unprofessional; (2) that Morley attempted to settle the matter directly with Waldman's client while Waldman was not present; and (3) that Morley told Waldman's client that Waldman was "unethical" and would be reported to the [Bar Association] Ethics Committee. Waldman's letter requested that Morley disqualify him-self as hearing officer in the case and that another hearing officer be appointed. A copy of the letter was sent to Malloy.
Malloy met with Morley regarding the letter and asked Morley to "reconcile his differences with Waldman." Morley then responded to Waldman's letter, rejecting most of his complaints as "without merit". Morley also put Waldman "on notice that this Tribunal is bound by the Code of Judicial Conduct and the Rules of Professional Responsibility apply to attorneys involved in Private Plan cases." He concluded by warning that "any further non-appearance on the part of an attorney from your office will not be accepted."
Malloy opined that Morley's letter was not a dignified response from a quasi-judicial officer representing the Division. He received two letters from Waldman, stating that Morley's response was "unsatisfactory", and requesting that Malloy remove Morley as the hearing officer in the Trent matter. On May 2, 1991, Morley unilaterally issued an "Interim Decision" in the Trent case,
scheduling a hearing for May 21, 1991, and stating that he would preside over the hearing. The decision concluded, "this Interim Decision constitutes final agency action on the issue of ...