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In re Richardson

August 27, 2007


On appeal from the Merit System Board, Department of Personnel, 2006-1684.

Per curiam.


Submitted: June 5, 2007

Before Judges Kestin and Payne.

The City of Camden (City) appeals from a final decision of the Merit System Board (Board) dismissing disciplinary charges against Joseph F. Richardson, a member of the Camden Police Department, and ordering that he "be returned to the title of Police Captain with differential back pay from the date of his demotion until his actual reinstatement as a Police Captain." We affirm.

The discipline imposed by the City, following a departmental hearing, was a reduction in rank by one grade. On Richardson's appeal to the Board, the matter was referred to the Office of Administrative Law for a contested-case hearing pursuant to N.J.S.A. 52:14B-10, a section of the Administrative Procedure Act. Richardson, however, also applied to the Board directly for a stay and interim relief, and the Board ruled, for reasons stated in a written decision dated December 22, 2005, that the disciplinary charges were to be dismissed because they had been filed in violation of the forty-five-day time limit established in N.J.S.A. 40A:14-147. The Board also determined that Richardson was entitled to an award of counsel fees, but stayed the order for payment pending the outcome of this appeal.

On appeal, the City argues that the Board's decision dismissing the charges "was arbitrary, capricious and unreasonable, lacked fair support in the evidence[,] and violated legislative policies expressed or implicit in the Civil Service Act[.]" The City contends specifically that the Board was obliged to hold a de novo hearing before reaching its decision.

The Board's final decision is exhaustive, presenting the factual background of the matter in great detail. We will not repeat the portrayal so thoroughly set out in the decision. With respect to the focus of the inquiry, i.e., whether the forty-five-day rule applied, there appears to have been no dispute of fact, only the need to construe the legal effect of facts clearly established.

It is axiomatic that we accord great respect to an agency's construction of the statutes it has been assigned to administer. See R & R Mktg., L.L.C. v. Brown-Furman Corp., 158 N.J. 170, 175 (1999). It is, manifestly, within the authority of the Board to interpret and apply statutory standards bearing upon public employment. See Gloucester County Welfare Bd. v. Civil Service Comm'n, 93 N.J. 384, 389-91 (1983). We may not substitute our judgment for that of an agency, even where we might have reached a different conclusion had its decision-making authority been reposed in us. Id. at 391; see also Campbell v. New Jersey Racing Comm'n, 169 N.J. 579 (2001). We may take corrective action only if the agency's decision "is clearly a mistaken one and so plainly unwarranted that the interests of justice demand intervention and correction . . . ." Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 588 (1988) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)). See also In re Taylor, 158 N.J. 644, 657 (1999).

We are not persuaded that the record before the Board was inadequate as a basis for the limited-scope decision made regarding the applicability of the statutory time limit, or that the Board exceeded its discretion in dismissing the disciplinary charges on a motion for a stay and interim relief. This is a type of matter "committed to the discretion of the Board, and its decision will be affirmed unless it goes beyond the range of sound judgment." In re Wiggins, 242 N.J. Super. 342, 345 (App Div. 1990).

As a governmental body, the City's entitlement to a hearing is not a matter of due process right, as is an individual's or a private entity's. Especially in so highly regulated an area as public employment, municipalities are obliged to conform to State standards as established in statute and administered by the Board. Nevertheless, as a party to a disciplinary proceeding within the authority of the Board, the City is entitled to a full and fair opportunity to develop a record for the positions it espouses. We discern nothing in this record, however, that could, as a practical matter, be regarded as an instance of the Board proceeding to decision without having afforded the City an adequate opportunity to develop the facts pertaining to the issue addressed. Even in the face of the provisions of N.J.S.A. 11A:2-6a that establish the need for a "hearing" in cases involving disciplinary demotion, inter alia, we are aware of no standard that requires the Board to hold an evidentiary proceeding where there is no true dispute of fact, but, rather, only a question of how established facts are to be construed. This is a corollary of the principle that requires a hearing whenever "there are disputed facts . . . and [a party] has a necessary proprietary or special interest," even where there is no statutory requirement for a hearing. Cunningham v. Department of Civil Service, 69 N.J. 13, 18-22 (1975). Where no dispute of essential fact exists, the hearing may consist of a consideration of the written or oral arguments presented by the parties. See Wiggins, supra, 242 N.J. Super. at 345; see generally Henry J. Friendly, Some Kind of Hearing, 123 U. Pa. L. Rev. 1267 (1975).

There is every basis in the record and good sense to defer to the Board's evaluation in this matter. Those in charge of the disciplinary process on the local level delayed unduly--well beyond the forty-five-day limit established by the Legislature-- in filing the charges that resulted, on the departmental level, in Richardson's demotion from captain to lieutenant. The underlying facts of the disciplinary charge--that Richardson failed to comply with an order, was untruthful to a superior officer, and engaged in conduct unbecoming an employee in the public service--were known to supervisory personnel, at the latest, on July 22, 2002, and appeared to have been resolved administratively around that time. An internal affairs investigative file was opened in March 2003 stemming from sexual-harassment/hostile-work-environment claims by another employee arising from the same incidents and, possibly, others. An investigation ensued and the formal charges in this matter were filed on July 1, 2004.

Manifestly, the City was not precluded from filing fresh charges stemming from those new claims and whatever prompt investigation might have been conducted as a result. But, the City could not validly resurrect stale disciplinary charges from mid-2002 as a way of dealing with the lingering sexual-harassment/hostile-work-environment claims.

The Board's decision that the disciplinary charges at issue were barred by the forty-five-day standard of ...

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