September 7, 2007
IN THE MATTER OF RICHARD HOLLAND, ROWAN UNIVERSITY.
On appeal from a Final Administrative Decision of the Merit System Board, DOP Docket No. 1998-3414.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted July 10, 2007
Before Judges R. B. Coleman and Sapp-Peterson.
Appellant Richard Holland, a groundskeeper employed by Rowan University (Rowan), appeals from a Final Administrative Action of the Merit System Board (Board) issued on August 11, 2005, removing him from his position. The Board's decision reversed an earlier ruling by the Office of Administrative Law (OAL). We agree with the OAL's interpretation of "conduct unbecoming a public employee" and, therefore, we reverse the decision of the Board.
This matter arises out of Holland's arrest on August 19, 1995, in Glassboro, for possession of over fifty grams of marijuana in a school zone; possession with intent to distribute marijuana; and operation of a controlled dangerous substance manufacturing facility. Several weeks after the arrest, Holland submitted an employment application to Rowan. Rowan's employment application requested information on criminal convictions but did not request information regarding pending criminal charges against the applicant, although public employers have the right to do so. Rowan's employment application included the question "Have you been convicted of a crime? (Conviction will not necessarily disqualify applicant from consideration of employment.) If Yes, please explain." When Holland submitted his employment application on September 7, 1995, he responded "No", a correct answer as of the date of application and as of the date Holland began employment.
On May 13, 1997, Holland was hired by Rowan as a groundskeeper and was told his salary would be $18,413 per year and that he must serve a four-month working test period. On June 3, 1997, a jury found Holland guilty of possession of fifty grams of marijuana with intent to distribute. On June 13, 1997, Rowan issued a Preliminary Notice of Disciplinary Action (PNDA) suspending Holland based on his criminal conviction and conduct unbecoming a public employee. A judgment of conviction was entered against Holland on November 7, 1997. Thereafter, Rowan issued the Final Notice of Disciplinary Action to Holland, removing him from his employment effective November 7, 1997, on charges of conviction of a crime in violation of N.J.A.C. 4A:2-2.3(a)(5) and conduct unbecoming a public employee in violation of N.J.A.C. 4A:2-2.3(a)(6).
Holland filed an appeal, challenging his removal; however, the hearing was postponed by the Administrative Law Judge (ALJ) while Holland pursued appeals of his criminal conviction. His appeals took approximately five years but, ultimately, the Supreme Court overturned the conviction for possession of marijuana. The Court found that the evidence against Holland had to be suppressed as fruit of a prior impermissible warrantless search. State v. Holland, 176 N.J. 344, 363-65 (2003). The local prosecutor then declined to pursue the matter further and the criminal indictment was dismissed.*fn1
Thereafter, Holland's appeal of his removal was heard before Administrative Law Judge (ALJ) Joseph L. Martone on November 30, 2004. At the conclusion of the hearing, the matter was left open to afford the parties an opportunity to submit written closing arguments, and the record was closed on January 31, 2005. On April 29, 2005, the ALJ issued his Initial Decision, concluding that Holland should not be found guilty of "conduct unbecoming a public employee" because he was not "actually engaged in public employment" on August 19, 1995, when the conduct occurred. The ALJ found that, based on the plain meaning of N.J.A.C. 4A:2-2.3, "conduct unbecoming a public employee" requires the employee to be in the actual employment of the public entity at the time of the conduct. The ALJ concluded that Holland was entitled to reinstatement to his position at Rowan, plus mitigated back pay, seniority, and counsel fees.
On appeal to the Board, the ALJ's decision was reversed. The Board adopted the ALJ's findings of fact, but did not adopt his interpretation of N.J.A.C. 4A:2-2.3(a)(6). Instead, the Board upheld Holland's removal from his employment for conduct unbecoming an employee, concluding that, under these circumstances, it was appropriate for the State employer to remove a newly hired employee for unbecoming conduct which occurred prior to his employment but was not known to the employer until a month after the start of work. For the following reasons, we reverse the Board's Final Administrative Action.
As the Court reiterated, "[g]enerally courts afford substantial deference to an agency's interpretation of a statute that it is charged with enforcing. An appellate court, however, is in no way bound by the agency's interpretation of a statute or its determination of a strictly legal issue." Shim v. Rutgers-State Univ. of New Jersey, 191 N.J. 374, 384 (2007) (internal citations and quotation marks omitted). The controlling issue in this case is purely one of statutory interpretation.
"If the language of the statute is clear and unambiguous, the court need not look beyond its terms to determine legislative intent. [I]f the statutory language is plain and clearly reveals the statute's meaning, the [reviewing tribunal's] sole function is to enforce the statute in accordance with those terms." Hubbard v. Reed, 331 N.J. Super. 283 (App. Div. 2000), rev'd on other grounds, 168 N.J. 387 (2001); Neptune Bd. of Educ. v. Neptune Educ. Ass'n, 144 N.J. 16, 25 (1996). Thus, the words of the statute are to be given their ordinary and well-understood meaning in absence of any explicit indication of special meaning. Levin v. Parsippany-Troy Hills, 82 N.J. 174, 182 (1980). The rules of statutory interpretation and construction also apply to the Administrative Code. State Dep't of Health v. Tegnazian, 205 N.J. Super. 160, 175 (App. Div. 1985). The regulation at issue here is clear and unambiguous, and should be enforced as such.
N.J.A.C. 4A:2-2.3 provides:
(a) An employee may be subject to discipline for:
1. Incompetency, inefficiency or failure to perform duties;
3. Inability to perform duties;
4. Chronic or excessive absenteeism or lateness;
5. Conviction of a crime;
6. Conduct unbecoming a public employee;
7. Neglect of duty;
8. Misuse of public property, including motor vehicles;
9. Discrimination that affects equal employment opportunity (as defined in N.J.A.C. 4A:7-1.1), including sexual harassment;
10. Violation of Federal regulations concerning drug and alcohol use by and testing of employees who perform functions related to the operation of commercial motor vehicles, and State and local policies issued thereunder; and
11. Other sufficient cause.
The regulation at issue, "conduct unbecoming a public employee," is not specifically defined in the regulations, but may be described as that which "adversely affects the morale or efficiency of the bureau . . . [or] which has a tendency to destroy public respect for municipal employees and confidence in the operation of municipal services." Karins v. City of Atl. City, 152 N.J. 532, 554 (1998). A finding of "unbecoming conduct" may be based on a violation of an implicit standard of good behavior. In re Emmons, 63 N.J. Super. 136, 140 (App. Div. 1960).
Here, the parties agree that when the police searched Holland's home on August 19, 1995, over fifty grams of marijuana and numerous items of drug paraphernalia were found. Holland acknowledged the presence of marijuana seeds in his residence, although he stated that they were no longer effective and denied that there was any marijuana growing in the home. He stated that the marijuana belonged to someone else, although he admitted that some of the fifty grams of marijuana found belonged to him. He also admitted to the presence of drug paraphernalia in his residence, but explained that many years prior to his arrest, he was in business in a drug paraphernalia shop and that such paraphernalia was legal at the time. Holland's involvement with a controlled dangerous substance is sufficient to be considered "conduct unbecoming."
We analyze next the context of Holland's conduct to determine if it constitutes "conduct unbecoming a public employee". N.J.A.C. 4A:2-2.3(a)(6) is not limited to "unbecoming conduct" that occurs in the workplace. Moore v. Youth Corr. Inst. At Annandale, 230 N.J. Super. 374 (App. Div. 1989), aff'd, 119 N.J. 256 (1990) (noting that forfeiture of public office does not depend on whether the conduct actually occurred in the workplace). Therefore, Holland would be held responsible for his conduct, even if it took place away from the workplace.
However, "conduct unbecoming a public employee" under N.J.A.C. 4A:2-2.3(a)(6) is limited to public employees. N.J.A.C. 4A:2-2.1 provides: "This subchapter applies only to permanent employees in the career service or a person serving a working test period." Accordingly, under a plain meaning interpretation, conduct that occurs prior to public employment cannot be subject to the standard described in N.J.A.C. 4A:2-2.3. Unbecoming conduct is clearly limited to conduct undertaken while the employee was actually engaged in public employment. Here, as of the date of the unbecoming conduct, Holland was not a public employee since his public employment did not commence until approximately one year and nine months later. Since he was not a public employee at the time of the unbecoming conduct, it was inappropriate for Rowan to discipline Holland for such conduct.
Allowing a public employer to discipline an employee for pre-employment conduct, of which the public employer did not learn at the time of employment, through no fault of the applicant, would result in inquiries into the past of public employees that may chill public employment for individuals based upon long-past questionable conduct. While there is a need to inquire of past criminal conduct of potential public employees and of past conduct that is specifically related to the position sought, this is the obligation of the employing public entity prior to employment.
Under the plain meaning of N.J.A.C. 4A:2-2.3(a)(6) "conduct unbecoming an employee" is that the conduct in question must occur while the employee is actually an employee of the public entity. Here, Holland was not a public employee at the time the unbecoming conduct occurred and is entitled to reinstatement to his position as a groundskeeper.