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In re Herrmann

July 16, 2007

IN THE MATTER OF TAMMY HERRMANN


On certification to the Superior Court, Appellate Division, whose opinion is reported at 387 N.J. Super. 450 (2006).

SYLLABUS BY THE COURT

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

The issue in this appeal is whether the Appellate Division exceeded the proper scope of its review when it reversed the penalty imposed by the Merit System Board (MSB).

The Division of Youth and Family Services (DYFS) hired Tammy Herrmann in February 2001 as a Family Services Specialist trainee. In August 2001, when she was no longer in her probationary period, she was assigned to interview the M. family regarding an allegation of child abuse. J.M., at the time five-and-a-half years old, was the youngest of six children adopted by Mr. and Mrs. M. As part of her investigation, Herrmann interviewed J.M. on an unrelated incident involving a small fire he started in the family's basement. According to Mrs. M., the interview was conducted in her bedroom. Mrs. M. drew Herrmann's attention to the presence, in the closet, of oxygen equipment used to treat medical conditions of two of the children. While interviewing J.M., Herrmann brought out a cigarette lighter, turned it on, and put it in front of J.M.'s face, asking him what kind of lighter he used to start the fire. During a second visit, accompanied by another case worker, Herrmann relayed to Mr. and Mrs. M. how she lit the lighter and that J.M. was fascinated by it, indicating that he may have a propensity to start fires. J.M.'s parents expressed alarm that the lighter could have ignited the oxygen tanks.

As a result of the cigarette lighter incident, Herrmann was served with a Preliminary Notice and then a Final Notice of Disciplinary Action seeking her termination for conduct unbecoming a public employee, pursuant to N.J.A.C. 4A:2-2.3(a)6. Herrmann appealed her removal and requested a hearing before the Office of Administrative Law. An Administrative Law Judge (ALJ) conducted a hearing and concluded that Herrmann's actions were dangerous and that DYFS had proven that those actions undermined the public trust in and credibility of the Division. Although noting that principles of progressive discipline can apply in respect of the determination of the disciplinary penalty, the ALJ concluded that Herrmann's act of waving a lit lighter near a five-year-old child's face was so egregious that, notwithstanding the lack of a prior history of infractions by this relatively new employee of DYFS, the appointing authority's determination to remove her from her position was appropriate. Accordingly, the ALJ's Initial Decision recommended that DYFS's termination of Herrmann be upheld. The MSB accepted and adopted the proposed findings and conclusions set forth in the ALJ's Initial Decision.

On Hermann's appeal to the Appellate Division, the panel affirmed the MSB conclusion that Herrmann had committed conduct unbecoming a public employee, but vacated Herrmann's removal from her position. The panel determined that the principle of progressive discipline had vibrancy in this setting and ordered that some lesser penalty than termination be considered on remand.

The Supreme Court granted the petition for certification filed on behalf of DYFS and the Department of Personnel.

HELD: The Merit System Board decision recognized legitimate public policy reasons for not insisting that DYFS retain an employee who, in so short a time, lost the trust of her employer. The Appellate Division impermissibly imposed its own judgment as to the proper penalty in this matter when the MSB's penalty could not be said to be either illegal or unreasonable, let alone "shocking" any sense of fairness. Therefore, the Appellate Division's reversal of Herrmann's removal was in error.

1. An administrative agency's final quasi-judicial decision will be sustained unless there is a clear showing that it is arbitrary, capricious, or unreasonable, or that it lacks fair support in the record. When an agency's decision meets the requisite criteria, then a court owes substantial deference to the agency's expertise and superior knowledge of a particular field. Deference controls even if the court would have reached a different result in the first instance. That deferential standard applies to the review of disciplinary sanctions as well. When reviewing administrative sanctions, the threshold question is whether the punishment is "shocking" to the court's sense of fairness, a difficult test and one not met whenever the court would have reached a different result. (Pp. 10-12)

2. The concept of progressive discipline has been utilized in two ways when determining the appropriate penalty for present misconduct. First, principles of progressive discipline can support the imposition of a more severe penalty for a public employee who engages in habitual misconduct. Second, principles of progressive discipline can be used to mitigate the penalty for a current offense. It is in that sense that the MSB cites the principle of progressive discipline when it downgrades a penalty for an employee who has a substantial record of employment that is largely or totally unblemished by significant disciplinary infractions. (Pp. 13-18)

3. Although progressive discipline is a recognized and accepted principle that has currency in the MSB's sensitive task of meting out an appropriate penalty to classified employees in the public sector, that is not to say that incremental discipline is a principle that must be applied in every disciplinary setting. To the contrary, judicial decisions have recognized that progressive discipline is not a necessary consideration when reviewing an agency head's choice of penalty when the misconduct is severe, when it is unbecoming to the employee's position or renders the employee unsuitable for continuation in the position, or when application of the principle would be contrary to the public interest. (Pp. 19-23)

4. As the case law reflects, progressive discipline is a worthy principle but it is not subject to universal application when determining a disciplined employee's quantum of discipline. This case implicates the public interest in that it reflects the standards of judgment, as well as performance, that DYFS expects of its workers who are sent out into the field to interact with children and families, often in crisis. DYFS must be able to rely on a worker's demonstrated good judgment from the moment of the initial investigation until the best interests of the child have been secured. The MSB is the entity charged with keeping State-government-wide standards of employee performance relatively consistent in disciplinary matters. The MSB agreed that Herrmann's conduct, as proven at the hearing, divested her of the trust necessary for her position and that progressive discipline would not be appropriate in this matter. That choice was the MSB's to make and it sided with DYFS's desire to remove Herrmann from employment as a Family Services Specialist. The Supreme Court will not interfere with that determination, regardless of whether it, in the first instance, would have reached the same conclusion. (Pp. 23-27)

The judgment of the Appellate Division is REVERSED in respect of the penalty to be imposed and the Merit System Board's penalty removing Herrmann from her position is REINSTATED.

CHIEF JUSTICE ZAZZALI and JUSTICES LONG, ALBIN, WALLACE, and RIVERA-SOTO join in JUSTICE LaVECCHIA's opinion. JUSTICE HOENS did not participate.

The opinion of the court was delivered by: Justice LaVECCHIA

Argued April 5, 2007

Family Services Specialist trainee Tammy Herrmann was charged by her employer, the Division of Youth and Family Services (DYFS), with conduct unbecoming a public employee based on her actions during an investigation into an allegation of child abuse. DYFS sought to terminate her employment. Following a hearing before an administrative law judge (ALJ) in which the charge and penalty were sustained, the Merit System Board (MSB) affirmed Herrmann's dismissal. On appeal, however, the Appellate Division reversed the dismissal sanction. In re Tammy Herrmann, 387 N.J. Super. 450, 459 (2006). The panel determined that the principle of progressive discipline had vibrancy in this setting and ordered that some lesser penalty than termination be considered on remand. Ibid. We granted the petition for certification filed on behalf of DYFS and the Department of Personnel, 189 N.J. 104 (2006), and now reverse and reinstate the penalty imposed by the MSB. Because termination was supported by the record and was neither illegal nor an unreasonable exercise of the MSB's broad discretion, see N.J.S.A. 11A:2-6, we defer to the agency head's penalty determination. The Appellate Division impermissibly substituted its judgment concerning the proper penalty to be applied and thereby exceeded its authority.

I.

Only the quantum of punishment, and not the sufficiency of the evidence in support of the disciplinary charge, is in issue in this appeal. Therefore, we recite the background evidence to the charge as credited by the ALJ and affirmed by the MSB.

DYFS hired Tammy Herrmann in February 2001 as a Family Services Specialist trainee. In August 2001, when she was no longer in her probationary period, she was assigned to interview the M. family regarding an allegation of child abuse.

Mr. and Mrs. M. have six adopted children, four of whom were under the age of eighteen at the time that Herrmann was assigned to look into the abuse referral. Mr. and Mrs. M. also were foster parents to a medically fragile infant, Q.T., which brought the family in regular contact with DYFS. The referral to which Herrmann was assigned concerned the family's sixth and youngest adopted child, J.M. At the time, J.M., a special needs child, was five-and-a-half-years old. Earlier in August 2001, J.M. started a small fire in family's basement. Mrs. M. discovered the fire, extinguished it before any substantial damage resulted, and immediately telephoned her husband to come home from work, which he did. That afternoon, Mr. M. took J.M. to the local fire marshal for a fire safety lecture. Although the DYFS investigation to which Herrmann was assigned included inquiry into that fire incident, the referral came about as a result of an unrelated incident.

D.M. is a six-year-old, special needs girl who also was adopted by Mr. and Mrs. M. D.M. overheard Mr. and Mrs. M. having an angry exchange with J.M. about the fire and told her summer camp counselors about it. She also told them that her father tied up J.M.*fn1 The ...


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