On appeal from a Final Administrative Decision of the Merit System Board, DOP Docket No. 2001-3471.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 9, 2007
Before Judges Coburn and R. B. Coleman.
Petitioner, Salvatore Matza, a County Correction Sergeant with the County of Warren Detention Department, appeals from a Final Administrative Decision of the Merit System Board, issued December 13, 2005. In that decision, the Board concluded that the Warren County Correctional Center's charges against petitioner of insubordination, conduct unbecoming of a public employee and neglect of duty were proven by a preponderance of the evidence in that the proofs established that petitioner ordered subordinate officers on his shift to leave their assigned posts to relieve him and not to record it in the log book; he falsified internal records on numerous occasions; and he verbally threatened subordinates with disciplinary action for the failure to follow his orders related to log improper book entries.
In his appeal to this court, petitioner offers these arguments:
POINT I: THE DECISION OF THE MERIT SYSTEM BOARD IS ARBITRARY, CAPRICIOUS AND UNREASONABLE AND IS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE ON THE RECORD AND, THEREFORE, SHOULD BE REVERSED.
POINT II: THE ADMINISTRATIVE LAW JUDGE ERRED BY FINDING SERGEANT MATZA GUILTY OF ALLOWING THE FACILITY TO FALL BELOW ITS MINIMUM STAFFING REQUIREMENTS. A CHARGE NOT LISTED IN HIS PRELIMINARY NOTICE OF DISCIPLINARY ACTION. AS SUCH, THIS CHARGE SHOULD NOT HAVE BEEN ADDRESSED AT THE OFFICE OF ADMINISTRATIVE LAW HEARINGS.
POINT III: THE COUNTY VIOLATED N.J.S.A. 40A:14-106a, THE "FORTY-FIVE DAY RULE" AND N.J.S.A. 40A:14-147 BY CHARGING SERGEANT MATZA WITH THE ALLEGATIONS CONTAINED ON THE PRELIMINARY NOTICE OF DISCIPLINARY ACTION.
After carefully considering petitioner's arguments in light of the record, briefs and applicable law, we conclude that those arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(D). Accordingly, we affirm substantially for the reasons expressed in the Final Administrative Action issued by the Board, which accepted and adopted the findings and conclusions contained in the June 8, 2005 Initial Decision of the Administrative Law Judge (ALJ). We only add the following observations.
The "judicial capacity to review administrative agency decisions is limited." Karins v. City of Atl. City, 152 N.J. 532, 540 (1998). A decision by the Merit System Board should not be disturbed unless "the Board's action was arbitrary, capricious or unreasonable." Ibid. The Board's decision must be affirmed if "the findings made could reasonably have been reached on sufficient credible evidence present in the record, considering the proofs as a whole, with due regard to the opportunity of the one who heard the witnesses to judge of their credibility." Hammond v. Monmouth County Sheriff's Dep't, 317 N.J. Super. 199, 203 (App. Div. 1999) (citation and internal quotation omitted).
With this standard in mind, petitioner does not indicate why the Board's decision should be reversed other than to restate the standard of review, articulated in the negative. Petitioner does not dispute any of the factual findings made by the ALJ. Furthermore petitioner, during the course of the hearings and attendant investigations, admitted many of the activities of which he was accused. The ALJ carefully articulated the reasons for her findings, and those findings were clearly supported by the record before her. Therefore, it cannot accurately be said that the Board's adoption of her findings was arbitrary, capricious or unreasonable.
The petitioner's remaining procedural arguments -- that the Board considered a charge not listed in the Preliminary Notice of Disciplinary Action and that it considered charges filed more than forty-five days after the completion of the investigation -- were addressed by the Board and rejected in its Final Decision for good and sufficient reasons. We agree with the Board's conclusion that the charges were filed within forty-five days of the completion of the investigation and, as such, were timely. In addition, we note that any alleged deficiency regarding the preliminary notice of the departmental charges was cured by the Board's de novo hearing on the matter. See In re Darcy, 114 N.J. Super. 454, 461 (App. Div. 1971) (holding that procedural deficiencies occurring in a departmental hearing are cured by a later de novo hearing). Moreover, petitioner became aware of all charges at the hearing before the Office of Administrative Law and had the opportunity to mount a ...