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In re Vena


October 26, 2007


On appeal from a Final Administrative Decision of the Merit System Board, DOP Docket No. 2006-1503.

Per curiam.


Submitted: September 26, 2007

Before Judges Axelrad, Payne and Sapp-Peterson.

Charles Vena, a former Emergency Medical Technician (EMT) in the City of Passaic,*fn1 appeals from a final determination of the Merit System Board upholding a disciplinary decision finding he breached his duty when he failed to respond on foot to a nearby call for emergency medical assistance when the ambulance could not exit the station because of a power outage, and he failed to truthfully sign in the time of his arrival to work. On appeal, Vena argues the Board's decision, particularly its reversal of the Administrative Law Judge's (ALJ) recommendation that the failure-to-respond charge be dismissed, was arbitrary and capricious; the Board did not address the "crucial issue" of the City's refusal to allow its police chief to testify before the ALJ and it erred in failing to hold that such refusal to testify mandated a dismissal of all charges; the Board erroneously denied counsel fees to him as a "prevailing" party; and the Board erroneously denied reconsideration. We are not persuaded by any of appellant's arguments and affirm.

On September 27, 2000, the City issued a Preliminary Notice of Disciplinary Action to appellant charging him with "failure to perform duties, incompetency or inefficiency," "conduct unbecoming a public employee," "neglect of duty," and "failure to notify the EMS supervisor of request for time off" pursuant to N.J.A.C. 4A:2-2.3(a)(1), (6), (7), and (11). The charges stemmed from Vena allegedly: (1) refusing to respond to an emergency medical call; (2) rendering improper medical treatment to a shotgun victim; and (3) neglecting to inform his supervisor in writing at least three days in advance of a request for personal time. Departmental hearings were held before Police Chief Stanley Jarensky, after which the charges were sustained and appellant received a fifteen-day suspension, without pay.

In March 2001, appellant was charged with "conduct unbecoming a public employee" and "other sufficient cause," N.J.A.C. 4A:2-2.3(a)(6) and (11), on the basis of an allegation that on January 1, 2001, he signed in, but was not present for a portion of his shift, and received money for time not worked. Following a departmental hearing with the police chief, the City sustained the first charge and suspended appellant for ten days without pay, but dismissed the charge accusing him of improperly accepting pay since he was later docked for the hour he was late.

Vena appealed the City's decision sustaining the three disciplinary charges and twenty-five day suspension arising out of the September 2000 and March 2001 notices. The matters were transmitted to the Office of Administrative Law (OAL) and consolidated for a hearing as contested cases. The following individuals testified on behalf of the City: Rose Mercado, Bahir Mustafa, Edwin Sanchez, and Harold Phares, all City EMTs at the time of the alleged infractions; Detectives Froilan Soto and Anthony Haluska, of Internal Affairs, who investigated appellant's alleged misconduct; Alisa Aponte, appellant's former Emergency Medical Services (EMS) supervisor; and Gerard Muench, an EMS expert. Appellant testified on his behalf, along with Giglio Rodriquez, a former EMS dispatcher and EMT, and Calvin Schantz, an EMS expert. Appellant issued a subpoena to the police chief for the purpose of eliciting testimony about an alleged Internal Affairs investigation initiated by appellant, in which he claimed that Aponte targeted him within the department and improperly influenced witnesses to testify against him during both the departmental and OAL hearings. The chief refused to testify and appellant did not file a motion with the Superior Court to enforce the subpoena.

The testimony adduced at the hearing was that on August 12, 2000, appellant was on duty with fellow EMTs Mercado, Mustafa, and Sanchez. At about 2:30 a.m. there was a power outage in the area, which rendered the ambulance doors inoperable. Shortly thereafter, dispatch received a call from a patient located about a half a block to one block away from the station, complaining of difficulty with her oxygen machine. Appellant and Mercado were both scheduled to respond to the call, but appellant refused to accompany Mercado. None of the EMTs recalled appellant's reason for refusing to respond, although appellant testified that he told everyone he did not feel it was safe and would not respond without police assistance. Consequently, Mustafa accompanied Mercado to the address on foot, and appellant remained at the station and assisted Sanchez, who had been attempting to open the doors to the ambulance area.

Mustafa and Mercado arrived at the call at the same time as a police unit. They calmed the patient, who was worried that her electric oxygen tank would run out before the power returned. After tending to the patient, the EMTs returned to the station, and Mustafa informed Aponte of the power outage and appellant's refusal to respond to the call.

The witnesses provided varying accounts of the safety of the area surrounding the station. Appellant claimed it was unsafe and frequently known for drug dealing and car vandalism and theft. He noted his parked car had previously been broken into in front of headquarters. Sanchez testified the area was not always safe at night, as the park across the street was known for drug dealing. Mustafa and Mercado, however, testified they felt safe in the area and felt secure walking to the their cars at night, which were parked outside of headquarters. Aponte agreed, commenting that EMTs often frequented a restaurant near where the dispatch call originated and nobody ever had a problem walking there.

The parties presented competing expert testimony respecting the duty of an EMT to respond under these circumstances. Schantz opined that, based on EMT training concerning scene safety protocols and appellant's account of the circumstances, appellant did not have a duty to respond on foot "at night, in an urban area, without a police escort, and without an ambulance" because of personal safety concerns and the limited ability to carry equipment. He believed the more practical response would be to wait for another town's emergency personnel to arrive at the scene, the contingency plan known as "mutual aid."

Muench opined that appellant had a duty to respond to the call as would any other EMT under similar circumstances. Here, the call was only a "short distance" and less than a ninety-second walk from the station, and the equipment required to respond to the call was a "jump bag with assorted medical equipment and an oxygen bag," which was available in the ambulance and was, in fact, carried to the scene by Mercado and Mustafa. Muench further testified that responding in such circumstances happens "regularly" at night in urban areas where there is crime, including situations where EMTs are forced to park the ambulance and walk an even longer distance by foot to access a patient. The City's expert opined that it was appellant's responsibility to notify a supervisor that he felt unsafe and to request a police escort, which he did not do, and even if he had, "he still had a responsibility to provide medical aid to the patient."

As to the charge of untruthfully signing in, the City presented evidence that appellant was scheduled to work the 7:00 a.m. to 3:00 p.m. shift but arrived approximately forty-five minutes late, which he did not indicate on the timesheet. Appellant admitted to the authenticity of his signature on the time sheet, and that he had not been present at the start of his shift. Appellant also admitted that on prior occasions it was his practice to amend his timesheet to reflect his arrival time, which he did not do in this instance.

At the conclusion of the hearing, the ALJ recommended dismissal of the failure-to-respond charge, finding no policy or job specification requiring a response in the circumstances presented. He also recommended dismissal of the remaining two charges from the September 2000 disciplinary action were also dismissed, and that appellant's fifteen-day suspension be vacated. The ALJ recommended that the subsequent charge of failure to truthfully sign in be sustained, but reduced the penalty from a ten-day suspension to the four days already served.

Both the City and appellant filed exceptions to the OAL decision with the Board. In the final decision filed on April 9, 2005, the Board declined to accept the ALJ's recommendation with respect to the failure-to-respond charge, and it imposed a six-day suspension for that charge. It found an EMT has a "fundamental duty" to render emergency medical aid; appellant's opinion that he was not required to respond without an ambulance to a call one block away, or his opinion as to the alleged danger, did not overcome this duty; and his failure to respond to the call was a "serious dereliction of duty." The Board affirmed the charge of untruthfully signing in and the penalty for that charge. It denied attorneys' fees, finding appellant did "not prevail[ ] on all or substantially all of the primary issues of the appeal," and on April 5, 2006, the Board denied appellant's motion for reconsideration. This appeal ensued.

The scope of judicial review of a final agency determination is severely limited. See In Re Carter, 191 N.J. 474, 482 (2007); In Re Musick, 143 N.J. 206, 216 (1996). Ordinarily, an appellate court will not upset such a quasi-judicial determination absent a clear showing that it was arbitrary, capricious or unreasonable; that it lacked fair support in the evidence; or that it violated legislative policies. Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562, (1963); see also In Re Herrmann, 192 N.J. 19, 27 (2007).

Appellant argues the Board erred in not deferring to the ALJ's recommendation to dismiss the failure-to-respond charge based on his finding there was "nothing in the job description" mandating an EMT to respond to a medical call without an ambulance, on foot, at night, during a power outage in a high-crime area. We disagree. The Board properly held that the absence of written procedures requiring appellant's response under these specific factual circumstances was not dispositive. In its de novo review of the record, the Board was entitled to independently review the Department of Personnel job specifications for an EMT and to determine whether, in the absence of an express written policy setting forth a duty to respond under these exact circumstances, an EMT had an implicit duty to respond. After reviewing the testimony of the EMT witnesses, the expert testimony, and the City's Standard Operating Procedures and Job Specification, the Board found the ALJ failed to acknowledge that EMTs have implicit duties, recognizing that those expressed and departmental policies cannot realistically enumerate "all potential situations that may arise for such a position." The Board concluded that, as an EMT, it was appellant's "fundamental duty" to respond to the call for help. It explained its rationale:

The Board does not agree with the ALJ's finding that the appellant did not have a duty to respond to a call because an ambulance was not available during a blackout at night in an alleged crime-ridden neighborhood. Rather, the Board finds that it is a fundamental duty of an EMT to render emergency medical aid, and the appellant's opinion that he was not required to respond without an ambulance or his opinion as to the alleged danger would not overcome his duty. In this regard, the Board notes that the call came from only one block away from the EMS station. Additionally, two other EMT's responded to the call without incident.

Moreover, the ALJ's reliance on the Department of Personnel job specification for EMT and the appointing authority's procedures to support his conclusion that the appellant was not required to respond is misplaced. Clearly, such documents cannot account for all of the potential situations which may arise for such a position. Therefore, the fact that neither document specifically "mandates" that an EMT respond under the factual circumstances presented in this matter is not dispositive. Moreover, the ALJ failed to acknowledge two important sections of the Department of Personnel job specification for EMT. The first section, found directly under the definition cited by the ALJ, states, in pertinent part, "[t]he definition and examples of work for this title are for illustrative purposes only . . . ." Moreover, the first example of work listed in the job specification states that an EMT "[a]nswers all calls for emergency medical treatment" (emphasis added).

The Board's decision was adequately supported by the record, and was neither arbitrary, capricious nor unreasonable. We note that our courts have recognized that "a finding of misconduct need not 'be predicated upon the violation of any particular rule or regulation, but may be based merely upon the violation of the implicit standard of good behavior which devolves upon one who stands in the public eye. . . .'" Karins v. Atl. City, 152 N.J. 532, 555 (1998) (fire fighter properly charged with conduct unbecoming where he referred to a police officer with a racial slur, in public, while intoxicated, and identified himself as a city employee); Hartmann v. Police Dep't of Ridgewood, 258 N.J. Super. 32, 39-40 (App. Div. 1992) (police officers could be held accountable for violating "an implicit standard of good behavior applicable to police officers" by engaging in a fist fight, which resulted in the accidental firing of one officer's off-duty handgun); City of Newark v. Massey, 93 N.J. Super. 317 (App. Div. 1967) (police officer violated implicit standard of appropriate behavior when he exhibited a disrespectful attitude to a superior officer).

Appellant concedes his lack of response to the emergency call regarding a patient's oxygen supply. He argues, however, that even if it is determined that he had a duty to respond, the penalty should be waived on the basis that he could not have predicted he had such a duty in the absence of a clearly worded policy and in view of the fact that no one was harmed by his failure to respond. This argument is totally without merit. The nature of an EMT's job includes a degree of danger involved in responding to calls. It should not be up to the EMT to decide whether there is any degree of danger present but, using common sense, to evaluate whether the danger in a given situation falls outside of acceptable levels. Here, even if appellant had expressed safety concerns at the time of his failure to respond, which the record does not necessarily support, it appears such concerns were unwarranted, given the proximity of the patient's home to the station and the fact appellant could have sought a police escort. In view of the EMTs' duty to render emergency aid, and particularly considering the prior practice of the EMTs to respond to calls on foot in the immediate vicinity and the fact the only equipment necessary to respond to the call was an oxygen bag, which Mercado and Mustafa were able to carry with them on their short walk from the station, there was ample justification in the record for the Board's sustaining of this disciplinary charge and the penalty imposed.

Appellant does not specifically articulate his reasons for challenging the Board's determination that he failed to truthfully sign in other than contending the charge was "entirely fictitious" and resulted from Aponte's dislike of him and her influencing other employees to falsely testify against him. He also asserts this unfair targeting was a basis for the failure to respond charge. His claim with regard to either charge is without merit and requires no further discussion. R. 2:11-3(e)(1)(E).

In his motion for reconsideration, appellant argued that the Board committed material error in failing to address Chief Jarensky's refusal to testify before the ALJ. Petitioner contended the chief's testimony would have been invaluable, as he had information concerning an alleged Internal Affairs investigation of Aponte related to tampering of witnesses who testified against him or witnesses who refused to come forward due to intimidation. Appellant argued the Board was thus unable to ensure that the reasons he was disciplined were not arbitrary or frivolous and, relying on Gonzalez v. Safe and Sound Security Corp., 185 N.J. 100 (2005), urged that the chief's refusal to testify warranted dismissal of the disciplinary charges. The Board rejected this argument, noting appellant's failure to articulate how the chief's testimony would change the Board's decision on the sustained charges. The agency concluded that since the charges were sustained based on appellant's admission that he did not respond to the emergency call and that he failed to indicate his late arrival on his timesheet, "any evidence concerning witness tampering or intimidation appears to be irrelevant." The Board also distinguished Gonzalez, in which the Court dismissed a civil action filed in the Superior Court based on the plaintiff's refusal to testify in violation of a court order requiring his compliance with defendant's subpoena.

In response to appellant's renewal of this issue on appeal, we affirm substantially for the reasons articulated by the Board. Appellant made no effort to enforce the subpoena in the Superior Court pursuant to N.J.A.C. 1:1-11.5 in order to compel the police chief's testimony in the ALJ proceeding. Moreover, he makes no proffer, nor are we able to discern, as to how any evidence concerning witness tampering or intimidation could change the Board's determination that appellant had a duty to respond to the emergency call or its conclusion that appellant's failure to accurately reflect his arrival time at work could cause problems in determining response time to a call.

Appellant contends the Board erred in denying his request for counsel fees because he prevailed on the most serious charge of failing to render proper treatment to a gun shot victim. According to appellant, if he had improperly cared for the patient, the patient might have been paralyzed or died. He contends the failure-to-respond charge was minor in comparison because there was no medical emergency; the patient was merely frightened due to the blackout; and two other EMTs promptly responded and returned without the need to render any medical treatment. Appellant further argues the Board's decision to reduce his penalty from twenty-five days to ten days demonstrates that his counsel successfully defeated the most serious charges, achieving a marked reduction in the penalty imposed and demonstrating the public improprieties that motivated the prosecution. He thus claims he is a "prevailing party" and his counsel should be entitled to a fee award for successful efforts.

The Board may only award counsel fees "where an employee had prevailed on all or substantially all of the primary issues before the Board." N.J.A.C. 4A:2-2.12(a). The Board appropriately denied appellant counsel fees in accordance with the applicable law. The ALJ and Board properly upheld appellant's four-day suspension for his failure to truthfully sign in on January 1, 2001, based on appellant's own admissions. Further, appellant did not dispute that he did not respond to the call for medical assistance, though he claimed justification, and the Board properly sustained this major disciplinary charge, finding appellant's conduct constituted a "serious dereliction of duty." That the Board reduced the City's proposed fifteen-day suspension to a six-day suspension did not minimize the seriousness of his charge. Nor did it make him the "prevailing party" on this charge in view of the Board's imposition of a six-day suspension where the ALJ had dismissed the entire penalty.

The Board upheld not just one of the principal charges, but the most significant charge against appellant, in addition to the charge of failure to truthfully sign in. The primary issue in a disciplinary appeal is the merits of the charges; merely because a penalty is reduced does not render an employee a prevailing party under the counsel fee statute. See Walcott v. City of Plainfield, 282 N.J. Super. 121, 128 (App. Div. 1995). The sustained charges against appellant were serious in nature and involved significant issues. As stated by the Board, the penalty in the failure-to-respond case was reduced only because of the unique circumstances present in the matter, which included a blackout, unavailable ambulance, and petitioner's resignation from his position in November 2003. As such, the reduction cannot be regarded as supportive of appellant's status as a prevailing party in a situation involving a potentially life-threatening disciplinary infraction.

We have already addressed and rejected appellant's challenge to the Board's denial of his motion for reconsideration as it pertained to the police chief's testimony. We are satisfied appellant has asserted no cognizable grounds for reconsideration of any of the other issues raised, and affirm the Board's denial of his motion substantially for the reasons articulated in its April 5, 2006 written decision.


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