On appeal from a Final Agency Decision of the Merit System Board, DOP Docket No. 2005-4816.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Sapp-Peterson and Messano.
Jersey City, the appointing authority, appeals from the February 1, 2007 final decision of the Merit System Board (Board) modifying the decision of the Administrative Law Judge (ALJ) terminating petitioner, Deborah Payton's, employment and also awarding her counsel fees. Although the Board adopted the findings of fact made by the ALJ, the Board disagreed that the appointing authority sustained the charge of conduct unbecoming a public employee and also rejected the ALJ's recommendation that her removal be upheld. We reverse.
The facts presented before the ALJ at the administrative hearing are largely undisputed. Payton worked in the Jersey City Tax Assessor's Office. On March 3, 2005, she received five one-dollar bills and a receipt from a co-employee, Lucien Taduran, a municipal surveyor, who had received the money the previous day from a customer requesting a copy of a portion of the city's tax map. He had received the payment around four p.m., and because the daily deposits had already been collected, Taduran made copies of the cash and the receipt he had given to the customer. He explained that he copied the five one-dollar bills because he was new to the position, was not a collecting agent, and wanted proof of what someone actually gave him in terms of cash. He had been instructed to turn over cash received to Payton and did so the next day when he saw Payton on her way to the ladies' room. Taduran gave her the receipt and the five one-dollar bills.
Payton folded the items and placed them in her back pocket. She then proceeded to the ladies' room. Payton indicated that she never thought about the money again until the next day when she was shown a copy of the receipt by the Tax Assessor, Eduardo Toloza. She then remembered that she had placed the money and receipt in her back pants pocket and asked whether she could go home to get it. Toloza told her "[n]o" and immediately suspended Payton. Payton was advised by her union representative to hold onto the receipt and the five one-dollar bills until the departmental hearing.
The departmental hearing was held a few weeks later. At that time, Payton turned over the receipt and the five one-dollar bills to Toloza. Following the departmental hearing, Payton was removed from her position on the grounds of conduct unbecoming a public employee, N.J.A.C. 4A:2-2.3(a)(6), and neglect of duty, N.J.A.C. 4A:2-2.3(a)(7). Payton appealed to the Board and the matter was referred to the Office of Administrative Law (OAL) as a contested case and assigned to an ALJ for an administrative hearing.
The ALJ issued an initial decision, finding that the appointing authority had sustained the charges by the preponderance of evidence and ordered the dismissal of Payton's appeal with prejudice. The ALJ specifically found:
Taduran's testimony was credible. While he testified that his memory is bad in other instances, he was nevertheless specific about the facts presented here. Taduran photocopied the cash for the purpose of preserving proof of cash payment in the event of a loss of that cash. When the cash was initially given to petitioner, she claimed to have folded it along with the receipt and placed it in her back pocket. When she surrendered the cash to Toloza, it was in the same receipt, but not the same serial numbers as the bills photocopied by Taduran. While it may have been plausible that petitioner had forgotten about the cash as she claimed, it became no longer plausible when the cash she presented lacked the same serial numbers. This was extremely compelling.
Additionally, petitioner offered no countervailing testimony to rebut the position of the respondent that the serial numbers on the bills she surrendered were different from those photocopied by Taduran. Therefore, I must CONCLUDE that there was a difference in serial numbers which indicated that petitioner did not leave the receipts and cash given to her intact. Had the petitioner forgotten that the folded receipt and cash were in her back pocket, she would have returned the precise bills entrusted to her, which was not done.
The Board adopted the ALJ's finding of fact but concluded that those facts did not support the charge of conduct unbecoming a public employee or the severe sanction of removal. The Board found that "the record [did] not establish that [Payton] intentionally took the $5." The Board specifically expressed that it was "troubled that the appointing authority failed to allow the appellant to return the money the next day, especially in light of the fact that it had no policy as to what to do with the money that was received after the deposit was made." In view of its determination that the charge of conduct unbecoming a public employee had not been sustained and the fact that there had been no prior disciplinary actions initiated against Payton, the Board modified the penalty to a five-day suspension. Additionally, because the Board concluded that Payton had prevailed on the most serious charge, she was entitled to an award of counsel fees in the amount of seventy-five percent of the services provided.
On appeal, the appointing authority raises the following points for ...