Before Judges Long, Kestin and Carchman.
The opinion of the court was delivered by: The opinion of the court was delivered by Kestin, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
On appeal from the Merit System Board.
The Monmouth County Sheriff's Department (Sheriff) appeals from the Merit System Board's (Board) March 24, 1997 final decision dismissing disciplinary charges against County Correction Officer Robert Hammond. In reaching its decision, the Board adopted the findings of fact and Conclusion of Administrative Law Judge Tassini articulated in an initial decision rendered on February 28, 1996. The Board ordered back pay and a restoration of benefits and seniority for the period of suspension as well as the payment of Hammond's counsel fees. We affirm.
Five charges had been preferred against Hammond on the local level in a preliminary notice of disciplinary action dated March 9, 1995:
"1. Conduct unbecoming a public employee. 2. Discrimination that affects equal employment opportunity, including sexual harassment. 3. Verbal abuse of a co-worker. 4. Insubordination in connection with an investigatory interview. 5. Resisting supervisory authority in connection with an investigatory interview."
A departmental hearing was held on April 4, 1995. The resulting final notice of disciplinary action dated April 20, 1995 stated that charges 1, 2 and 3 had been sustained, and that charges 4 and 5 had been dismissed. A ten-day suspension was ordered. After Hammond agreed in writing on April 25 to forfeit five vacation days in lieu of five suspension days, an amended final notice of disciplinary action was issued on April 27 to reflect a change in the period of suspension to five working days and five vacation days.
In the meantime, also on April 25, pursuant to N.J.S.A. 11A:2-14, Hammond filed an appeal with the Board from the disciplinary determination sustaining charges 1, 2 and 3 and suspending him. In accordance with the Administrative Procedure Act, N.J.S.A. 52:14B-9, -10, the matter was classified as a contested case and transmitted to the Office of Administrative Law for a hearing. On December 29, 1995, counsel for the Sheriff wrote Judge Tassini that he would "be seeking an enhanced penalty" when the case was presented. Judge Tassini responded:
"I suggest that you notify your adversary . . . of what specific `enhanced penalty' you expect to seek." Counsel wrote his adversary accordingly, "advis[ing] that the . . . Sheriff will be seeking an enhanced penalty of a ninety (90) day suspension. . . . This enhanced penalty is sought because of the serious nature of the sexist remark made by [Hammond], his refusal to cooperate in an investigation of the incident and his extensive past disciplinary record." *fn1
The matter came on for hearing on January 12, 1996. According to Judge Tassini's initial decision, at that time, the appointing authority argued (essentially moving for amendment of its claim to add charges) that, in addition to charges 1, 2 and 3, the appellant should also be subject to prosecution on charges 4 and 5. The appellant objected to the appointing authority's motion. Administrative adjudication must be governed by principles of notice, due process and fundamental fairness. N.J.S.A. 52:14B-2(b) and (c), -10; Juzek v. Hackensack Water Co., 48 N.J. 302, 314-15 (1966); Department of Envtl. Prot. v. Stavola, 103 N.J. 425, 436 n.2 (1986). N.J.A.C. 4A:2-2.6(d) requires that "[w]ithin 20 days of the [appointing authority's] hearing . . . the appointing authority shall make a decision on the charges and furnish the employee . . . with a Final Notice of Disciplinary Action," and thereby notify him of the charges he faces. The appointing authority's motion was inexcusably late; the addition of charges to those in the final notice was contrary to the express requirement of N.J.A.C. 4A:2-2.6(d); and the appellant would have had no time to prepare for the additional charges. Therefore, the appointing authority's motion was denied. The case was then heard and the record was kept open until February 6, 1996, to allow the attorneys to submit written summations.
Based upon the testimony of nine officers in the Sheriff's department and a county personnel officer, Judge Tassini made mediate findings of fact and an ultimate finding:
Balancing all of the credible evidence and considering the demeanor of the witnesses, [the complaining officer] was not credible in her testimony describing the alleged incident and the appointing authority has not proven that the appellant committed the acts charged.
The Judge also found, contrary to earlier intimations by counsel for the Sheriff, that Hammond "has not previously been the subject of major disciplinary action." Judge Tassini concluded that "the appointing authority has not met its ...