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In re Payton

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


April 22, 2008

IN THE MATTER OF DEBORAH PAYTON, CITY OF JERSEY CITY.

On appeal from a Final Agency Decision of the Merit System Board, DOP Docket No. 2005-4816.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 2, 2008

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:

Ta[]duran's testimony was credible. While he testified that his memory is bad in other instances, he was nevertheless specific about the facts presented here. Ta[]duran 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 Ta[]duran. 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 Ta[]duran. 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 our consideration:

POINT I

THE MERIT SYSTEM BOARD WAS ARBITRARY, CAPRICIOUS AND UNREASONABLE IN FAILING TO SUSTAIN THE CHARGES AGAINST RESPONDENT.

POINT II

THE MERIT SYSTEM BOARD WAS ARBITRARY, CAPRICIOUS AND UNREASONABLE IN FAILING TO SUSTAIN THE TERMINATION OF RESPONDENT.

At the outset, we reiterate that "[c]courts have a limited role in reviewing a decision of an administrative agency." Henry v. Rahway State Prison, 81 N.J. 571, 579 (1980). Reversal is only appropriate if the decision is "arbitrary, capricious or unreasonable or it is not supported by substantial credible evidence in the record as a whole." Id. at 579-80 (citing Campbell v. Department of Civil Serv., 39 N.J. 556 (1963)).

Applying those principles to the present matter, we conclude that reversal of the Board's determination that the "appointing authority did not support the charge of conduct unbecoming a public employee" is warranted. In its decision, the Board focused upon the appointing authority's refusal to permit Payton to return home to get the money and the fact that there was no policy for safekeeping money after the deposits have been made. The focus upon those factors overlooked the fact that when Payton finally produced the money and receipt at the departmental hearing, she turned over five one-dollar bills that bore different serial numbers than the five one-dollar bills copied by Taduran. When reminded that she had been confronted with the two different sets of serial numbers during the departmental hearing, Payton first responded that the photocopy had "no stamp or no nothing on it to say that that was[,]" and then almost immediately thereafter, denied looking at the photocopy and indicated that it was her union representative, not she, who looked at the serial numbers on the photocopy of the five one-dollar bills. The ALJ found Payton's testimony lacking in credibility and expressly found that Payton's claim that she had forgotten about the cash "became no longer plausible when the cash she presented lacked the same serial numbers." The ALJ viewed this evidence as extremely compelling and we do as well.

In Karins v. City of Atlantic City, 152 N.J. 532 (1998), the Court recognized that "[u]nbecoming conduct" has been construed by New Jersey courts as "any conduct which adversely affects the morale or efficiency of the [governmental unit] or which has a tendency to destroy public respect for municipal employees and confidence in the operation of municipal services. Karins, supra, 152 N.J. at 554 (internal quotation and citations omitted). The conduct 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." In re Emmons, 63 N.J. Super. 136, 140 (App. Div. 1960) (citing Asbury Park v. Dep't of Civil Serv., 17 N.J. 419, 429 (1995)).

Against this analytical framework, the ALJ's findings were entitled to deference. In Re Taylor, 158 N.J. 644, 657 (1999). The fundamental principle that we, as a reviewing court, must give deference to factual findings made by the trier of fact when such findings could reasonably be made considering the proofs as a whole and with due regard to the opportunity of the one who heard the testimony to assess credibility, also applies to the Board. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997).

The ALJ specifically found that Payton offered no explanation for the difference between the serial numbers, leading the ALJ to conclude that the serial numbers were in fact different and, thus, Payton's conduct was not unintentional. In other words, the Board accepted the findings of fact but then used the fact that Payton was not allowed to go home to retrieve the money when she requested to do so and that there was no policy in existence on what to do with money received after the deposit is made as a basis to find that the charge of conduct unbecoming a public employee had not been sustained. In our view, these factors may possibly be considered as mitigating factors in determining the appropriate penalty, but under the particular facts presented here, bear no relationship to whether Payton's conduct was unbecoming.

First, whether Payton had been given the opportunity to retrieve the money when she requested to do so or later, the serial numbers should have been the same. Second, Payton was not given the money after the deposits had been made. She was given the money during normal work hours and simply claimed that she had forgotten about it. Having rejected Payton's explanation as lacking in credibility, the ALJ found that Payton had not left the "receipts and cash given to her intact." It was this fact that cast her conduct into that broad category of conduct that "affects the morale or efficiency of the [governmental office] or which has a tendency to destroy public respect for municipal employees and confidence in the operation of municipal services," Karins, supra, 152 N.J. at 554. The Board's decision to the contrary was not only arbitrary but also unsupported by the record.

Once the Board determined that the most serious charge had not been sustained and that Payton had not been the subject of any prior disciplinary infractions, it considered the removal penalty as too severe for the remaining charge that it found the appointing authority proved, neglect of duty. We therefore remand to the Board for redetermination of the propriety of the removal penalty in light of both neglect of duty and conduct unbecoming a public employee. See West New York v. Bock, 38 N.J. 500, 520, 527-528 (1962) (if a reviewing court concludes that a decision of the Board is arbitrary, the court may either finally determine the matter by fixing the appropriate penalty or remand it to the administrative agency for redetermination.)

Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.

20080422

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