On appeal from the Merit System Board, Department of Personnel, no. 2002-2843.
The opinion of the court was delivered by: Kestin, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Kestin, Hoens and Seltzer.
Tammy Herrmann appeals from a decision of the Merit System Board (Board) affirming the action of the appointing authority, the Division of Youth and Family Services (DYFS or Division), removing her from employment as a family service specialist trainee. In reaching its decision, the Board adopted the findings of fact and conclusions contained in the initial decision of the Administrative Law Judge (ALJ) who had heard the contested case. We affirm the determination that Herrmann had engaged in conduct unbecoming a public employee, warranting discipline; but we vacate the discharge sanction imposed, and remand for reconsideration and imposition of a more suitable disciplinary measure.
On appeal, Herrmann argues that the decision upholding the charge of "conduct unbecoming a public employee," N.J.A.C. 4A:2-2.3(a)6, was arbitrary and capricious; and that it departed from accepted legal standards for "conduct unbecoming." She also asserts that the sanction of discharge violated established standards for progressive discipline of public employees.
Although the charging form recited that Herrmann served in the title of "family service specialist trainee," it seems clear from the record that she had completed her four-month working test period, see N.J.A.C. 4A:4-5.2, and was a permanent employee rather than a trainee. Except for one passing reference to Herrmann as a "provisionary employee," the ALJ referred to her without the "trainee" designation. Herrmann had commenced her employment on February 21, 2001.
The single specification of misconduct, served on October 16, 2001, was: "On August 6, 2001 while conducting an intake investigation you flicked a cigarette lighter in the face of a five year old child. There were oxygen tanks in the room at the time of the incident. Your behavior was inappropriate and dangerous." The home investigation that led to the charge had been prompted by an impression given by one foster child that another child in the foster home had been tied and beaten because he had set a fire in the basement of the home.
The ALJ heard testimony from three witnesses in support of the charge: the foster mother; Herrmann's supervisor; and a deputy attorney general assigned to represent the Division. Two witnesses testified on behalf of Herrmann: a co-worker who had accompanied her on many investigations, including the one in question, but who had not witnessed the incident with the cigarette lighter; and Herrmann herself, who admitted that the incident had occurred, but that she had not intended to ignite the lighter. Herrmann also contended that the incident had occurred in a different area of the home, not in the bedroom where oxygen equipment was located.
Evaluating the testimony he had heard, the ALJ found the testimony of the witnesses in support of the charge "to be very credible and consistent[,]" and that Herrmann had acted "well beyond the scope of her mandate as an intake investigator for DYFS." He specifically found Herrmann's version of the facts and her explanation of her conduct not to be credible. He concluded that Herrmann was not qualified to conduct investigations into [the child's] psychological problems with regard to fire setting and should not have attempted to do so. Her actions were dangerous. It could have created, I fully believe, serious psychological problems for the children and indeed might have done so and serve to put the actions of the agency in disrepute and additionally serve to seriously harm the credibility of the agency in a potential court action.
He upheld the charge that had been filed.
The ALJ went on to characterize Herrmann's conduct "during the course of the investigation" to have been "inexcusable."
In a delicate situation the testimony consistently seemed to demonstrate that [Herrmann] was overwhelming[ly] heavy handed, insensitive to the needs of the children in the family, and in fact, the lighter flicking incident speaks entirely for itself. Especially egregious was [Herrmann's] action in experimenting with the lighter in front of the primary subject of the investigation, J.M. Where she lit the lighter is immaterial although if indeed she had flicked and lit the lighter in a room full of oxygen tanks her judgment to put it mildly is severely questionable. Regardless, however, where the lighter was effectively lit, the fact that she did it at all places serious doubt in her judgment and ability to properly perform her assigned duties. The actions of such an investigator on behalf of DYFS can and does serve to seriously undermine the public trust and reliability in the actions of DYFS investigators. By jeopardizing the reputation of such investigators, it tends to hinder almost beyond repair the work of the agency and its need to protect those who cannot protect themselves. In addition, it can ...