November 16, 2007
IN THE MATTER OF HARRY LUCAS.
On appeal from a Final Administrative Decision of the Merit System Board, DOP Docket No. 2003-850.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: September 11, 2007
Before Judges Axelrad and Payne.
Harry Lucas appeals from a May 25, 2006 final determination of the Merit System Board affirming the decision of the appointing authority, Gloucester County, to terminate his employment as a budget officer effective July 31, 2002, based on a finding of incompetency, inefficiency or failure to perform duties; and insubordination pursuant to N.J.A.C. 4A:2-2.3(a)(1) and (2). Lucas challenges the sufficiency of the evidence in support of the disciplinary charges and the quantum of the punishment. We affirm.
Appellant, who had a degree in accounting and finance, was retained by the County in l986 to help automate its financial reporting. In May l987, he was hired as a budget officer in the County's Treasury Department. In l993, he was transferred to the Department of Government Services. By l997, appellant's principal employment activity was administering the County's involvement with the Community Development Block Grant ("CDBG") Program being run by the U.S. Department of Housing and Urban Development. Appellant received the necessary training and instruction to complete his assigned tasks, including the preparation of reconciliation reports.
During this period, appellant received kudos and recognition from the County. He also received oral criticisms, a plethora of written reprimands, a three-day suspension without pay for chronic inefficiency in September l997, and a two-day suspension without pay for inefficiency in performing his duties in August l999.
Around May 2001 appellant was reassigned to the County Division of Workforce Development. In September 2001, he was suspended for ten days without pay, effective September 17 through October 2, for inefficiency, failure to perform duties, and insubordination.
The County was dissatisfied with appellant's conduct during the six-month period following his return to work. On March 28, 2002, the County served a Preliminary Notice of Disciplinary Action charging appellant with: (1) incompetency, inefficiency or failure to perform duties; (2) insubordination; and (3) conduct unbecoming a public employee, in violation of N.J.A.C. 4A:2-2.3(a)(1), (2) and (6), and seeking his removal. The charges were based on allegations that appellant failed to complete work in a timely and efficient manner, failed to perform the work assigned by his supervisor, and placed an inappropriate document on the desk of his departmental head. Following a departmental hearing, the hearing officer sustained the charges and removal. A Final Notice of Disciplinary Action was issued making appellant's removal effective July 31, 2002.
Lucas appealed, and the matter was referred to the Office of Administrative Law (OAL) for a contested hearing, which was held commencing in May 2005. The following individuals testified on behalf of the County: Tamara Primas-Thomas, who as the Division Head of the County's Workforce Development and other workforce programs in the Department of Economic Development, was appellant's direct supervisor from 2001 to 2002; William Gerson, the County's Fiscal Officer responsible for reviewing appellant's reports; Gary Schwarz, the County's Deputy Treasurer and Chief Budget Officer, who was Gerson's supervisor; and James Cannon, the County's Personnel Director. Appellant testified on his own behalf.
The following facts were presented at the hearing through testimony and memoranda regarding appellant's unsatisfactory performance and deficient work effort after his return from the September 2001 ten-day suspension. Appellant failed to submit the September 2001 reconciliation report in the proper format and by the October 9, 2001 due date; he failed to timely submit the October reconciliation report by the November 8 due date; he failed to submit the November reconciliation report by the December 7 due date; he failed to submit the December reconciliation report by the January 8 due date; and he failed to submit the February reconciliation report by the March 7 due date. In addition, appellant submitted the November and December reconciliation reports with errors, which could not be reconciled with County records. He also did not begin to honor Primas-Thomas' numerous prior verbal and written instructions to submit pre-encumbrance forms with Individual Skill Requests until January 1, 2002, and, as of the time of his removal, had not completed the make-up pre-encumbrance forms for the deficient Skills Requests that he had processed from July l, 200l. In addition, in violation of previous directives and requests, appellant repeatedly refused to sign timesheets, which were necessary to allocate costs to appropriate grants; continued to submit vouchers to the Director without Primas-Thomas' signature; failed to process bills on a weekly basis; and failed to provide listings of obligations for classroom enrollments. The witnesses also testified about the time they had to take from their schedules to correct appellant's mistakes to avoid consequences to the County.
Appellant acknowledged that he failed to timely submit the September through December reconciliation reports and did not begin signing the timesheets until December, and then signed them on an inconsistent basis. In addition, appellant admitted that up until the date of his termination, he was still submitting vouchers without his supervisor's signature, still failing to process bills weekly and still refusing to use forms as directed; he never corrected the third set of reports as requested to be corrected and resubmitted; and he had not completed two funding years of pre-encumbrance forms.
The County also produced testimony and evidence of approximately thirty written memoranda warning appellant of his inefficiency, unsatisfactory performance, failure to perform his duties, and insubordination. These included about eight written warnings for the relevant time period noting appellant's failure to: submit the reconciliation reports on a timely basis and in the proper format, perform pre-encumbrances as previously directed and provide corrected State reports, sign timesheets, and process bills weekly. They further noted errors in reconciliation reports and revised reports and "blatant neglect of responses to [supervisor's] authority and supervision." The record also contains evidence of a multitude of verbal warnings regarding the same issues following appellant's return from his ten-day September suspension. In addition, Primas-Thomas met regularly with appellant in an attempt to improve his performance, Gerson met with him several times to train him and review his work and errors, and Cannon met informally with him on one occasion to counsel him as to his performance deficiencies and attitude.
In an initial decision dated December 20, 2005, the Administrative Law Judge (ALJ) found in appellant's favor on all charges, commenting that "[b]oth [the County's] witnesses and Appellant gave credible testimony[;] [t]he former with a broader perspective, the latter with a narrower perspective." The ALJ recommended dismissal of the charge of conduct unbecoming a public employee, which related to the allegation that appellant placed an inappropriate document on his department head's desk. She was also satisfied that during the six-month period from appellant's return from the ten-day suspension, his performance had substantially improved and he had complied with his superiors' directives despite significant time constraints. Thus, appellant's performance was neither inefficient nor insubordinate, and removal was unwarranted.
The County filed exceptions with the Board and sought reversal of the ALJ's recommendation in its entirety. On May 25, 2006, the Board issued a final decision: (1) adopting all but three findings of fact by the ALJ; (2) affirming the ALJ's dismissal of the conduct unbecoming a public employee charge*fn1 ; (3) reversing the ALJ's recommended dismissal of the charges of incompetency, inefficiency or failure to perform duties and insubordination; and (4) affirming removal as an appropriate penalty.
The Board found that "[w]hile the ALJ provided an accurate summary of the testimony presented, it is unclear how she arrived at her conclusion given the voluminous testimony and documentation presented to the contrary[,]" including appellant's own admission that during the six-month period he did not comply with many of the directives of his supervisors or complete his assigned work in a timely matter. The Board specifically disagreed with three of the ALJ's factual findings, citing various items of testimony and evidence that supported a different conclusion. Its independent evaluation of the record revealed that "even after the imposition of the ten-day suspension, the appellant continued to submit untimely and inaccurate work and continued to refuse to complete assigned tasks and sign required time sheets for a significant period after his suspension." On this basis, the Board disagreed with the ALJ's conclusion that appellant had substantially improved his job performance and completed supervisory directives following the return from his September 200l suspension.
Accordingly, the Board rejected the ALJ's recommendations as to the charges and penalty, finding the County sustained its burden of proof as to the charges of: (1) incompetency, inefficiency or failure to perform duties, and (2) insubordination. The Board further held the penalty of removal was appropriate "given the pattern and egregious nature of appellant's conduct and his disregard of the directives of his superiors, and the fact that the appellant has been disciplined for his performance deficiencies on several previous occasions." Lucas appealed.
On appeal, Lucas argues the agency's decision was arbitrary, capricious and unreasonable as it improperly disregarded the ALJ's credibility assessments and factual findings and there was sufficient credible evidence to support those findings. Alternatively, appellant argues that the removal decision lacks sufficient support in the record and case law and that the doctrine of progressive discipline did not merit the harsh penalty of removal. Appellant emphasizes that the ALJ conducted a six-day hearing and wrote a thirty-one page decision with many citations to the record while the Board only wrote a six-page opinion with a few citations to the record as evidence of the arbitrariness of the agency's decision. A substantial portion of appellant's argument challenging the Board's decision on both the disciplinary charges and penalty is his claim that he was placed in a "Catch 22" position following his return from discipline on October 2, 200l. According to appellant, he was given multiple assignments by a variety of people and he was simply unable to perform the work, due primarily to his compressed four-day work schedule and the fact he was out of the office about fifty percent of the available work days from his suspension until January l, 2002, because of the County's policy requiring vacation, personal and "comp" time to be used by the end of the year or forfeited. As a result, he admits he did not comply with deadlines and had to redo certain of the reports because of errors in them but claims he should not be penalized under the circumstances.
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).
The Board's decision was adequately supported by the record, and was neither arbitrary, capricious nor unreasonable. Contrary to appellant's assertion, the Board's decision was not based on an assessment or rejection of credibility findings by the ALJ. The ALJ found all the witnesses were credible. She also accurately summarized the testimony presented, and the Board adopted the bulk of her findings of fact. The ALJ's conclusion, however, that appellant "g[o]t the message" and substantially improved his job performance and substantially complied with his supervisors' directives during the six-month period following his return from suspension was not supported by the overwhelming testimony and documentation to the contrary, including appellant's admissions. Rather, as the Board found, the appointing authority satisfied its burden of proof of demonstrating that appellant's performance and work product remained unsatisfactory during the relevant six-month period, despite being given ample notice and opportunity to correct his deficiencies, follow orders, and timely complete his assigned duties. See N.J.A.C. 4A:2-1.4(a) (stating that in a major disciplinary action, the burden of proof lies with the appointing authority); see also State v. Lewis, 67 N.J. 47, 49-50 (1975) (holding that the standard of proof is a preponderance of the credible evidence); Atkinson v. Parsekian, 37 N.J. 143, 156 (1962) (same).
We find unavailing appellant's "Catch-22" argument. The record reflects that after returning to work following his tenday suspension, appellant did not complain to his supervisors or any other county representative about his workload or time constraints or inform them he was having difficulty completing make-up tasks, his assigned duties, or meeting deadlines. Nor did appellant inquire whether his accrued 200l vacation and related time could be "carried" to the following year. It is too easy to argue after the fact that appellant did not speak up because he did not expect to receive any relief from his supervisors because of their strained relationship. Appellant provided a far more credible explanation for the reason he did not perform certain assigned tasks and duties as directed by his superiors; as noted by the Board, appellant testified "he believed he had a better way of doing things and he felt that some of the tasks were not necessary."
Our deferential standard of review of agency decisions applies to disciplinary sanctions as well; the imposition of a penalty by an administrative agency ordinarily will be affirmed. Herrmann, supra, 192 N.J. at 28; Carter, supra, 191 N.J. at 486. When reviewing administrative sanctions, "the test . . . is 'whether such punishment is so disproportionate to the offense, in light of all the circumstances, as to be shocking to one's sense of fairness.'" Herrmann, supra, 192 N.J. at 28-29 (quoting In re Polk, 90 N.J. 550, 578 (1982)). The concept of "shocking" is an extremely high threshold to overcome. Id. at 29.
The Board performed the requisite de novo evaluation of the record to determine the appropriate penalty. It reviewed appellant's disciplinary history, which included a three-day suspension in l997 for chronic inefficiency, a two-day suspension in l999 for inefficiency, and a ten-day suspension in 200l for inefficiency, failure to perform duties, and insubordination. The Board found:
The record clearly shows that when the appellant was informed of his poor job performance, his performance continued to be unsatisfactory and substandard in that he did not complete assigned duties even though he was given numerous memoranda, had meetings and verbal communications with his superiors and had been subjected to three suspensions. . . . [T]he Board notes that appellant had ample notice of and opportunity to improve his unsatisfactory job performance. Accordingly, given the pattern and egregious nature of appellant's conduct and his disregard of the directives of his superiors, and the fact that the appellant has been disciplined for his performance deficiencies on several previous occasions, the appropriate penalty in this case is removal.
We discern no basis to second-guess the agency's penalty removing appellant from his position. Despite myriads of written and verbal warnings, meetings with his supervisors, and suspensions, appellant continued to defy the directives of his superiors because he thought his methods were preferable or assigned tasks were unnecessary. The fact the subject charges are the same ones for which appellant received a ten-day suspension in September 200l is a clear indication that progressive discipline was of no consequence to him and had no effect on his performance or behavior in the workplace. Given the persistence and scope of appellant's performance deficiencies and his disciplinary history, the agency was well within its discretion to conclude that removal was the appropriate remedy. The discipline meted out by the County was progressive in nature, and removal from employment did not occur until after appellant was given fair warning of his deficiencies and did not correct them.