August 27, 2007
IN THE MATTER OF WILLIAM MORRIS
On appeal from the New Jersey Merit System Board, 2004-3830.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Telephonically Argued August 22, 2007
Before Judges Lisa and Holston, Jr.
Appellant, William Morris, a corrections officer who had been employed by respondent, Hudson County Corrections Center (Hudson County), for fourteen-and-a-half years appeals the final administrative action of the Merit System Board (the Board) upholding disciplinary action by Hudson County, removing Morris from his employment as a county corrections officer. We affirm. On June 16, 2003, Morris was charged in a complaint returnable in the Kearny Municipal Court with simple assault, contrary to N.J.S.A. 2C:12-1(a), of a Hudson County inmate on June 13, 2003, while Morris was on duty. From June 16, 2003, to November 25, 2003, Morris made at least five court appearances in connection with that charge.
According to Internal Affairs (IA) officer Lenore Levine, Morris failed to keep her informed of all court proceedings and outcomes. On December 16, 2003, after the complaint had been dismissed on November 25, 2003, Levine interviewed Morris concerning the inmate's allegations. At that interview, Levine became aware that Morris had been subject to five court appearances concerning the inmate's allegations against him and that the matter had been dismissed. The dismissal of the charges was confirmed by a December 19, 2003 fax from the municipal court. Morris acknowledged to Levine that he was aware of his duty to keep IA informed of all court appearances. On January 30, 2004, Morris was served with a Preliminary Notice of Disciplinary Action charging him with insubordination; conduct unbecoming a public employee; neglect of duty; incompetence; inefficiency or failure to perform duties; and other sufficient cause for failure to notify Levine of his November 3, 2003 and November 25, 2003, court appearances before the Union City Municipal Court, to which the complaint had been transferred.
After a March 26, 2004, departmental hearing, the Acting Director determined that all five charges were sustained. A Final Notice of Disciplinary Action was issued removing Morris from his position as a corrections officer effective April 27, 2004.
Morris requested an administrative hearing and the matter was transferred to the Office of Administrative Law (OAL) on September 16, 2004, as a contested matter pursuant to N.J.S.A. 52:14B-1 to -15 and N.J.S.A. 52:14F-1 to -13. Hearings were held on July 11 and July 22, 2005. The Administrative Law Judge (ALJ) issued an initial decision on September 22, 2005, sustaining the charges against Morris but determined that a six- month suspension from duty was a more appropriate penalty than removal. Hudson County filed exceptions to the reduction of penalty. On December 7, 2005, the Board filed a final administrative decision, finding that plaintiff's conduct warranted his removal from employment. This appeal followed. After the inmate pressed criminal charges against Morris and the summons and complaint were issued, Morris was notified of the pendency of the complaint by complaint notification dated June 13, 2003. The notification informed Morris that he would be contacted by an investigator for an interview and instructed that he was to keep IA aware of any court proceedings and the outcome of the complaint.
By notice dated June 16, 2003, IA advised Morris to keep IA "abreast of any and all court dates . . . or final disposition of your criminal case. Failure to do so will result in further Disciplinary Action."
Section 1.19 of the Hudson County Rules and Regulations Manual, which Morris acknowledged reviewing, states:
1.19 COURT APPEARANCES BY PERSONNEL OF THE HUDSON COUNTY CORRECTIONAL CENTER:
All employees of the Hudson County Correctional Center shall notify the Warden in written report when he/she is ordered to appear in court no matter what the reason for the appearance may be. All complaints filed against employees of the Hudson county Correctional Center must be reported immediately to the Warden.
Although Morris submitted a written report in accordance with a directive from Levine dated June 10, 2003, concerning his knowledge of the May 6, 2003 incident, for which he was accused of assault, neither Levine nor the IA office were made aware of the status of the assault charge against him until Levine's interview with Morris on December 16, 2003. It was at that interview that Morris for the first time informed Levine of his five court appearances and the eventual dismissal of the charge against him.
Morris contended that acceptance of complaints and court notices from the court liaison from IA imputed knowledge of the court dates to IA despite the delivery of the notices in sealed envelopes. Two investigators from IA testified at the OAL hearing that as court liaisons they would receive mail from the mail room and deliver the mail to the corrections officer to whom it was addressed unopened, making only a copy of the sealed envelope and having the officer sign the copy of the envelope acknowledging its delivery to him. Both verified that they never knew the contents of any mail that they delivered. Both confirmed that neither had been informed of any court appearance dates by Morris. Both witnesses indicated that although the notices Morris received did not specify that Levine was to be personally notified, the officer to whom a notice is given knows he has to contact the investigator handling his case, because it is that officer who hands to him the court notice.
Morris contended that he did notify IA of his first four court dates through the two IA investigators who testified. He stated that each court notice was open when he received it and that after the charge was dismissed, he attempted by telephone without success to contact Levine directly. He stated he did not rely on his attorney to provide notice to IA. Levine disputed Morris's contention and stated that neither IA investigator gave her any information regarding any court dates Morris allegedly informed them about.
The ALJ made the following findings after hearing two days of testimony from six witnesses including Levine and Morris.
In the within matter appellant received a notice that directed that he keep IA informed of "any and all court dates, indictments or final disposition of your criminal case." The notice also advised that failure to keep IA informed would result in disciplinary action. Appellant, when interviewed, indicated candidly that he had had approximately five court appearances in this matter and that his case had eventually been dismissed. Levine testified that had appellant provided any notice of those court appearances to IA, that information would have been documented and placed in his file. . . .
[I]t is clear that on November 25, 2003, the criminal charges against Morris were dismissed. Although Levine's report reflects, on the November 20, 2003, entry, that appellant's case had been dismissed, the report itself was dated January 5, 2004, and therefore appears to have been prepared after the receipt of the December 19, 2003, fax. Indeed, Levine's report indicates in the summary that she considered all of the documents and reports and the interview of appellant, which did not take place until December 28, 2003, in reaching her conclusions set forth in the January 5, 2004, report.
Clearly IA must be kept informed of court proceedings so that it can be aware at all times what the status is of any ongoing investigations against an officer. The court liaisons testified credibly that they delivered mail to officers unopened, after logging in the date the mail was received, and that they were not responsible for opening mail or recording its contents. Appellant's suggestion, therefore, that the court liaisons were aware of his court appearance dates by virtue of handing him the notices received regarding those dates, is disingenuous. Appellant did not dispute that he did not advise Levine of the dismissal of the charges, but he indicated that he relied on his attorney to do so and that his attorney had advised him not to contact IA. Appellant testified candidly however, that he was never instructed by his attorney to disregard IA directives.
It is clear that appellant failed to keep IA informed of his court dates and of the disposition of the charges brought against him by the inmate. Appellant acknowledged that he was notified of his duty to keep IA informed and was aware of that responsibility. Appellant also acknowledged having received a copy of the county rules and regulations, which also set forth his duty to keep the county apprised of his court appearances and to comply with policies and procedures.
Based upon the foregoing, I CONCLUDE that respondent has sustained the charges of failure to perform duties and neglect of duty. I further CONCLUDE that respondent has sustained the charges of violation of the County's Rules and Regulations, namely, neglect of duty, failure to follow procedures, court appearances, knowledge of laws and rules, and obedience to law and rules. . . .
Of paramount importance in a quasi-military organization are integrity and truthfulness. The need for honesty and accurate reporting of facts is vital to the success of any law enforcement agency in maintaining the public's trust and confidence. . . .
In the within matter, appellant was the subject of a criminal proceeding involving an inmate's allegations of assault while on duty. Incontestably, IA has a legitimate interest in and must be kept informed of the court dates and the disposition of any such proceedings. Appellant was unmistakably aware of his duty in this regard and did not comply with his responsibilities. The criminal charges were serious in nature and could have impacted appellant's position as a correction officer.
When dealing with the question of penalty in a de novo review of a disciplinary action against a civil service employee, the Merit System Board is required to reevaluate the proofs and "penalty" on appeal based upon the charges. N.J.S.A. 11A:2-19; Henry [ v. Rahway State Prison], 81 N.J. 571 [(1980)]; [West New York v. Bock, 38 N.J. 500 (1962)].
In a disciplinary proceeding, an employee's past record may be resorted to "for guidance in determining the appropriate penalty for the current specific offense." Bock, supra, 38 N.J. at 523. This past record includes "formally adjudicated disciplinary actions as well as instances of misconduct informally adjudicated . . . by having been previously called to the attention of and admitted by the employee." Id. at 524.
The record in this matter reveals two verbal warnings, one written warning, three 1-day fines, two 2-day fines, one 5-day suspension, one 4-month suspension, and a 6-month suspension in June 2001. Respondent terminated appellant's employment, citing his disciplinary record.
Based upon the totality of the record, I FIND that removal is too harsh a penalty. Nonetheless, the sustained charges against appellant are serious in nature and major disciplinary action is warranted.
I therefore CONCLUDE that it is appropriate to impose a 6-month suspension, which should serve as warning to appellant that any future infractions may result in removal.
Thereafter, Hudson County filed exceptions to the reduction of penalty imposed by the ALJ. On December 7, 2005, the Board issued a final administrative determination, affirming the ALJ's assessment of the charges. While the Board agreed with the factual findings contained in the ALJ's decision, with regard to the imposition of a significant penalty, the Board disagreed with the ALJ's recommendation that plaintiff's dismissal be reduced to a six month suspension.
After a review of the nature of the charges, the record concerning those charges, and the plaintiff's prior disciplinary record, the Board found that removal constituted an entirely appropriate penalty. The Board thus sustained the factual findings of the ALJ but modified the penalty based on plaintiff's past conduct and the serious nature of the violations against him, finding that removal was the most appropriate sanction.
The Supreme Court in its recent decision in In re John Carter, 191 N.J. 474 (2007), reiterated the relevant principles of law that guide our review of the Board's decision. In Carter, the Supreme Court stated:
The scope of appellate review of a final agency decision is limited, see Aqua Beach Condo. Ass'n v. Dep't of Cmty. Affairs, 186 N.J. 5, 15-16 (2006), and we do not ordinarily overturn such a decision "in the absence of a showing that it was arbitrary, capricious or unreasonable, or that it lacked fair support in the evidence," Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963). As we have consistently stated, our role, in general, is limited to determining:
(1) whether the agency's action violates express or implied legislative policies, that is, did the agency follow the law; (2) whether the record contains substantial evidence to support the findings on which the agency based its action; and (3) whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors.
[Mazza v. Bd. of Trustees, 143 N.J. 22, 25 (1995) (citing Campbell, supra, 39 N.J. at 562.]
Moreover, in reviewing agency actions, "[a]ppellate courts must defer to an agency's expertise and superior knowledge of a particular field." Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992). Although an appellate court is "in no way bound by the agency's interpretation of a statute or its determination of a strictly legal issue," Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85, 93 (1973), if substantial evidence supports the agency's decision, "a court may not substitute its own judgment for the agency's even though the court might have reached a different result," Greenwood, supra, 127 N.J. at 513.
[191 N.J. at 482-83 (parallel citations omitted); see also In re Tammy Herrmann, ___ N.J. ___ (2007) (slip op. at 2).
In Carter, supra, the Court framed the issue as whether this court erred in concluding that the penalty of removal of a police officer for sleeping while on duty infractions was excessive punishment. Id. at 483. In reaching our conclusion that the penalty was excessive, we found that the Bordentown Police Department had erred in failing to abide strictly by the theory of progressive discipline. Ibid. We determined that the punishment of removal for the sleeping on duty charges was too severe and should be reevaluated in accordance with the theory of progressive discipline. Id. at 482.
The Supreme Court reversed. The Court first reviewed the progressive discipline concept that it had first espoused in Bock, supra, 38 N.J. at 523 and reiterated that a proposed sanction need not be based on the severity of the current infraction alone. The Court noted that relevant past disciplinary events which occurred within a reasonable period of time prior to the offense being considered may be considered in determining an appropriate penalty for the current specific offense. Carter, supra, 191 N.J. at 484.
The Court also stated that progressive discipline is not a fixed and immutable rule to be followed without question. Ibid. The Court pointed out that the question for a reviewing court is "whether such punishment is so disproportionate to the offense, in the light of all the circumstances, as to be shocking to one's sense of fairness." Ibid.
Lastly, the Court cautioned that courts should take care not to substitute their own views of whether a particular penalty is correct for those of the body charged with making that decision. Id. at 486. The Court determined that this court in fact rejected the well-reasoned analysis of the Board when the Board upheld the penalty of termination for the sleeping on the job offense, when we considered the principle of progressive discipline to be an absolute mandate of law and in our regarding Carter's own disciplinary history as insufficient. Ibid. The Court concluded that in mandating that only a lesser sanction could be imposed, we exceeded our role and inappropriately substituted our view for that of the appointing authority and the Board. Ibid.
In this case, in rejecting the ALJ's modification of discipline imposed by the appointing authority, the Board stated:
In the instant matter, the Board agrees with the ALJ's assessment of the charges. However, the Board does not agree with the ALJ's recommendation that a six-month suspension is the proper penalty. Rather, the Board finds that the removal should be upheld. In determining the proper penalty, the Board's review is de novo. In addition to its consideration of the seriousness of the underlying incident, the Board also utilizes, when appropriate, the concept of progressive discipline. See [Bock, supra.] However, it is well established that when the underlying conduct is of an egregious nature, the imposition of a penalty up to and including removal is appropriate, regardless of an individual's disciplinary history. . . . The appellant's prior disciplinary history since his employment in 1990 includes two major disciplinary actions: a six-month suspension in 2001 for failure to perform duties and a 120 working day fine in 2002 for conviction of a crime and conduct unbecoming a public employee. The appellant's current infraction indicates his seemingly cavalier attitude toward his law enforcement position despite two prior major disciplinary action. In the present matter, the appellant was aware that he had a duty to keep IA informed and yet he failed to do so. The Board emphasizes that a County Correction Officer is a law enforcement employee who must enforce and promote adherence to the law. . . .
Therefore, after a thorough and independent review of the entire record, the Board concludes that, based on the nature of the charges and the appellant's prior disciplinary record, the penalty of removal imposed by the appointing authority is neither unduly harsh nor disproportionate to the offenses, and should be upheld.
The Merit System Board finds that the appointing authority's action in removing the appellant was justified. The Board, therefore, affirms that action and dismisses the appeal of William Morris.
[(Internal citations omitted).]
Our review of the record convinces us that the Board's decision on de novo review of the record before the ALJ, in finding that the infractions charged were proven and that the penalty imposed, based on the nature of the charges and Morris's prior disciplinary record, was neither unduly harsh nor disproportionate to the offenses and should be upheld was supported by the substantial evidence in the record. The Board's decision was not arbitrary, capricious or unreasonable. Carter, supra, 191 N.J. at 485. Additionally, in light of all the circumstances, the discipline imposed is not shocking to one's sense of fairness. Id. at 484. Accordingly, the final agency decision of the Board is affirmed.
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