On appeal from a Final Administrative Decision of the Merit System Board, No. CSV 4103-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing and Lyons.
Geraldine Sims appeals from a Final Decision of the Merit System Board. After reviewing the record in light of the contentions advanced on appeal, we affirm.
Sims had been employed as a corrections officer by Monmouth County for approximately twelve years when she was terminated for excessive absences and abuse of sick leave. Ms. Sims appealed her termination to the Board, which referred the matter to the Office of Administrative Law as a contested matter. Following a hearing, the administrative law judge issued an Initial Decision in which she reversed the termination and directed that appellant be reinstated, subject to a six-month suspension. The employer filed exceptions, and the Merit System Board, after reviewing the record, adopted the initial factual findings of the administrative law judge but rejected her recommendation that appellant's termination be modified to a six-month suspension. Appellant then moved for reconsideration, but the Board denied her motion. This appeal followed.
On appeal, Sims argues that the final decision of the Board was arbitrary and capricious and that we should not accord it substantial deference. She maintains that the Board disregarded the principle of progressive discipline, that her conduct was not egregious, and that the Board cannot impose a greater penalty than that called for by the employer's progressive discipline policy.
In the five-and-one-half-year period between August 1997 and March 2003, Sims received eight disciplinary charges for taking excessive sick leave, abuse of her sick leave and/or refusing to work compulsory overtime. The record reveals that she had a practice of taking sick days immediately prior to and immediately after days upon which she was scheduled to be off. These charges resulted in various forms of discipline, including reprimands, fines and suspensions.
During much of Ms. Sims' employment, the County had followed a policy of imposing a suspension "on the record."*fn1
Under this policy, the employee would report to work and be paid, but the employee's personnel record would reflect a suspension. According to Captain Philburn of the Monmouth County Corrections Facility, the policy had been adopted with an eye to benefiting both parties: the sanctioned employee would not lose pay, the County would not have to absorb the cost of overtime by having another employee cover the shifts of the subject employee, and the County was able to treat the sanction as a suspension for the purposes of the County's own progressive discipline policy. Captain Philburn further explained that the County had adopted the policy with the thought that it would reduce unauthorized absences but that it had abandoned the policy when it proved unsuccessful in that regard.
We note first the standard governing our review of this matter. It is well settled that our review of the final decision of an administrative agency such as the Board should be deferential, and we should not overturn the Board's decision unless we are satisfied it is arbitrary, capricious or unreasonable. Carter v. Township of Bordentown (In re Carter), 191 N.J. 474, 482 (2007) (citing Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963)).
Our consideration is generally limited to three inquiries:
(1) whether the agency's action violates express or implied legislative policies, that is, did the agency follow the law;
(2) whether the record contains substantial evidence to support the findings on which the ...