On appeal from a Final Administrative Decision of the Merit System Board, DOP Docket No. 2006-1503.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...