Before Judges Baime and Wefing.
The opinion of the court was delivered by: Baime, P.j.a.d.
On appeal from the Merit System Board.
The State Operated School District of the City of Newark (District) discharged Elmore Gaines from his position as senior security guard for conduct unbecoming an employee, chronic absenteeism and lateness, theft, insubordination, failure to perform, and absence without leave. Gaines appealed to the Merit System Board (Board). The matter was referred to the Office of Administrative Law. Following a hearing, an administrative law Judge (ALJ) sustained all but one of the disciplinary charges, but recommended that the penalty be reduced to an eighty day suspension. The Board adopted the ALJ's factual findings, but concluded that a six-month suspension was appropriate. The District appeals, contending that Gaines' repeated acts of misconduct warrant nothing short of dismissal from employment. We agree.
We briefly summarize the salient facts. Gaines was employed as a senior security guard from 1990 to 1995. His duties included patrolling the thirty-one school buildings in his designated sector, responding to alarms and emergent situations, and securing and protecting all school property. Gaines was assigned to the midnight shift. His patrol activities required him to drive a District-owned automobile. As a condition of his employment, Gaines was required to maintain a valid driver's license.
From the very outset of his employment, Gaines' performance of his duties was abysmal. Between 1992 and 1995, Gaines' driver's license was suspended for substantial periods of time. Gaines never apprised the District of these suspensions, but instead continued to operate the District-owned patrol vehicles. The District's practice was, and continues to be, to obtain driver's abstracts from the Division of Motor Vehicles on a periodic basis. Upon learning of Gaines' suspensions, the District repeatedly warned him that he could not operate a District- owned vehicle. Indeed, the applicable collective bargaining agreement requires District employees to apprise their supervisors when their licenses are suspended. Despite repeated warnings, Gaines continued to operate District-owned vehicles during these periods of suspensions. Although Gaines claimed that his elderly father often misplaced his mail and he was thus uninformed of the suspensions, it is undisputed that he took no measures to correct the situation by, for example, obtaining a post office box. We note that Gaines' driver's license ultimately expired, no attempt having been made to reinstate it. At oral argument, we were told that Gaines does not have a valid driver's license.
Throughout his employment, Gaines received various disciplinary penalties for chronic lateness and absenteeism, and for numerous instances of absences without leave, neglect of duty, failure to perform, and insubordination. For these infractions, Gaines was suspended from employment twice for thirty-day periods and once for fifteen days. Following these episodes of major discipline in 1993 and 1994, Gaines' job performance worsened in 1995. During the first half of 1995, Gaines accumulated some forty-four days of absences, not counting the additional month of absences due to unpaid suspensions. The District's rules require employees to telephone their supervisors when they are unable to work on their assigned hours. Gaines blithely ignored that regulation, and, when confronted by his supervisor with that violation, wrote a profanity-filled, offensive letter of complaint.
Gaines did not dispute the District's evidence. He instead claimed that much of his misbehavior was the result of the psychological sequelae flowing from two incidents in which gunshots were fired at his patrol car. These incidents occurred on March 6, 1995 and July 29, 1995. The perpetrator or perpetrators were never apprehended. Following each incident, Gaines was given substantial sick time leave. Moreover, the District attempted to accommodate Gaines when he returned to work by assigning him to a particular school. However, the District needed patrol officers and ultimately directed Gaines to return to his patrol duties. Gaines refused.
The ALJ dismissed the charge of theft, which related to allegations that Gaines forged a physician note in order to avoid having to return to work. However, the ALJ found that Gaines had engaged in conduct unbecoming an employee, was chronically absent from work and late, was insubordinate to his supervisor, and was absent without leave. With respect to several of Gaines' absences, acts of insubordination, and driver's license suspensions, the ALJ determined that the employee had previously been disciplined. The ALJ concluded that dismissal from employment was excessive in light of the two shooting incidents we have described. As noted, the ALJ recommended an eighty-day suspension.
The Merit System Board adopted the ALJ's factual findings respecting the disciplinary charges. The Board noted that Gaines' record included four major disciplinary actions during the employee's five and one-half years of service. The Board also noted that Gaines' driving violations, i.e., driving a District-owned patrol car while his license was suspended, were particularly egregious, because Gaines had been suspended previously for the same reason. While rejecting the District's demand for Gaines' removal from service, the Board increased the penalty recommended by the ALJ and suspended the employee without pay for a period of six months.
It is against this factual backdrop that we address the issues presented.
We are keenly aware of our limited role in reviewing a decision of an administrative agency. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). Agency actions are presumptively reasonable. Smith v. Ricci, 89 N.J. 514, 525, appeal dismissed sub nom. Smith v. Brandt, 459 U.S. 962, 103 S.Ct. 286, 74 L.Ed.2d 272 (1982); Elizabeth Fed. S. & L. Ass'n v. Howell, 24 N.J. 488, 499 (1957); In re Tavani, 264 N.J. Super. 154, 158 (App. Div. 1993). We will reverse a decision of an administrative agency only if it is "arbitrary, capricious or unreasonable or it is not supported by substantial credible evidence in the record as a whole." Henry v. Rahway State Prison, 81 N.J. at 579- 80; see also ...