On appeal from a Final Agency Decision of the Merit System Board, DOP Docket No. 2002-992; OAL Docket No. CSV 2770-02.
The opinion of the court was delivered by: Fisher, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges C.S. Fisher, Yannotti and C.L. Miniman.
In this appeal, we reject the argument of the Judiciary and the argument of plaintiff's employer, the City of Burlington (City), that it was the assignment judge of the vicinage and not the Merit Systems Board which should have determined whether or to what extent plaintiff, a deputy municipal court administrator, should be disciplined as a result of circumstances surrounding her encounter with police officers in 2000. Having so resolved this jurisdictional dispute, we affirm the Merit System Board's determination that plaintiff engaged in unbecoming conduct and that a six-month suspension -- and not termination as directed by the assignment judge and sought by the City -- was an appropriate sanction.
Michelle Thurber (plaintiff) had been employed by the City as a deputy municipal court administrator for approximately ten years when she was stopped by Officer Larry Robb in Cherry Hill at approximately 2:00 a.m. on September 16, 2000. The record indicates that plaintiff either made or received cell phone calls while the officer was attempting to talk with her. She said during this encounter that she suffered from anxiety or panic attacks and, as Officer Robb and Officer Timothy Tedesco attempted to handcuff her, plaintiff indeed began screaming and pulling away. Once handcuffed and in the back of the police vehicle, plaintiff kicked out a side window and attempted to escape through the broken window. She eventually calmed down. Plaintiff was taken to the police station, where two breathalyzer tests indicated she had a blood alcohol content of 0.10 and 0.11. She was charged with speeding, driving while under the influence, criminal mischief and resisting arrest.
The following Monday, plaintiff met with the City's administrator, who later circulated a memorandum that indicated he told plaintiff that he "consider[ed] such behavior both serious and . . . unacceptable," and that the City would make available counseling and substance abuse programs as she might require. No other action regarding plaintiff's employment status was then taken.
On October 10, 2000, however, the assignment judge wrote to the City's mayor and council, stating in part:
As you are undoubtedly aware, Ms. Thurber has been charged with numerous offenses by the Cherry Hill Police on September 16, 2000. As a result, and being fully cognizant of her presumption of innocence, I am exercising my authority as Assignment Judge of Burlington County pursuant to Rule 1:33-4 to temporarily remove her from the Municipal Court in Burlington City, effective immediately.
I leave to your sound discretion and good judgment whether to suspend her with or without pay, or to employ her in another capacity.
The mayor wrote to plaintiff on October 12, 2000, acknowledging receipt of the assignment judge's letter and indicating that:
The City . . . shares the concern as expressed by [the assignment judge]. Until the charges have been disposed, your employment with the City . . . is suspended, with pay, effective immediately. Once the charges have been disposed, a final decision regarding your employment will be made.
On January 17, 2001, plaintiff pled guilty to reckless driving, which resulted in a 120-day suspension of her driving privileges, and also to disturbing the peace in violation of a Cherry Hill ordinance, which resulted in a $1,000 fine. Although not clearly disclosed by the record, we assume that the driving while intoxicated, resisting arrest and criminal mischief charges were then dismissed.
The next day, the assignment judge was advised of the outcome of the charges and, as a result, he sua sponte entered an order on January 23, 2001, which required plaintiff to show cause on February 20, 2001 why "she should not be permanently removed from the position as Deputy Court Administrator." Plaintiff's attorney immediately responded, seeking written notice of the specific administrative charge to which plaintiff was to respond, citing Nicoletta v. No. Jersey District Water Supply Comm'n, 77 N.J. 145, 163 (1977) (holding that "the first prerequisite of due process is fair notice, so that a response can be prepared and the respondent fairly heard"). A few days later, the assignment judge wrote to the city solicitor to advise that he was "withdrawing, for the time being, my order to show cause"; the judge, however, gave the City further direction regarding plaintiff's employment status:
Inasmuch as Ms. Thurber is protected by a contract of employment, I am directing you as [city] solicitor . . . to inform the Mayor and Council to take disciplinary action against her as [a] result of the municipal court charges in Cherry Hill Township. The Council is to appoint a hearing officer who may not be a Municipal Court Judge to hear the charges against her and to render written findings and conclusion. Thereafter, based upon the facts which have been established at a hearing, I will renew my order to show cause.
In response to this direction, the City issued a preliminary notice of disciplinary action, charging plaintiff with "conduct unbecoming a public employee" as a result of the September 16, 2000 events "which led to [her] conviction of offenses in the Cherry Hill municipal court." This unbecoming conduct was described in the notice as including: her "refusal to perform field sobriety tests as directed"; her making and receiving of cell phone calls while the Cherry Hill officer was attempting to conduct an investigation; her refusal to be handcuffed and her struggle with the Cherry Hill officers after being informed she was under arrest; her resistance after being placed in the patrol car; her damaging a police car by kicking out a rear passenger window; and her attempt to escape from custody through the broken window.
The City appointed an attorney (the hearing officer) to conduct a hearing into these accusations. The record does not indicate whether plaintiff had any input into the selection of the hearing officer. At this proceeding, the hearing officer received the testimony of the Cherry Hill police officers regarding the September 16, 2000 events. Plaintiff chose not to present any evidence except for an expert report written by Dr. Roberta Ball, which was provided along with her attorney's written summation, and which indicated that plaintiff suffered from panic attacks of a nature similar to what occurred when she was arrested on September 16, 2000. In the words of her attorney, this medical evidence was "not offered in mitigation of the events testified to by the officers . . . [but] rather, it is offered as substantial evidence of the precipitating cause of her actions on September 16, , and points to the complete absence of any voluntary misconduct."
In his May 8, 2001 written findings, the hearing officer concluded, as was undisputed, that plaintiff engaged in the conduct described by the officers, and, in addition, found plaintiff's expert to be unreliable and the expert opinion as having no bearing on the circumstances alleged. He recommended that, as a result, plaintiff's "employment with the City . . . be terminated and specifically that her employment as the Deputy Court Administrator . . . be terminated."
The next day, May 9, 2001, the assignment judge wrote to advise the City that he had reviewed the hearing officer's "reasoning very carefully" and concluded that it was "sound." It is not clear to us whether the assignment judge had access to a transcript of the testimony taken by the hearing officer, the written submissions provided by the parties to the hearing officer or plaintiff's expert report. We assume that the parties had no opportunity to argue to the assignment judge regarding the merits of the hearing officer's decision, or the process that generated it, because the assignment judge rendered his decision the day after the hearing officer issued his findings. As a result of his view of the "soundness" of the hearing officer's findings, the assignment judge "directed" the City to terminate plaintiff "from her position as Deputy Court Administrator." The judge further advised that his decision was made "independently in my capacity as Assignment Judge and is not intended to influence or affect any decision of yours as a public employer pursuant to the Civil Service laws of this State."
On May 9, 2001, the City's mayor wrote to plaintiff to notify her that effective the close of business on May 14, 2001, plaintiff was "terminated from employment with the City." This letter advised that "[t]his action was based on the findings and recommendation of [the hearing officer] in his ruling of May 8, 2001." The mayor made no mention of the assignment judge's directions.
On May 21, 2001, plaintiff appealed the City's determination to terminate her employment to the Merit System Board.
On July 16, 2001, the City issued another preliminary notice of disciplinary action, charging "other sufficient cause for discipline," namely, the assignment judge's May 9, 2001 directive that plaintiff be removed from her position as deputy municipal court administrator. On August 14, 2001, the City issued a final notice of determination on these newer charges, and again determined that removal ...