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Hood v. Ryan

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


April 24, 2008

CARMELLA J. HOOD, AMANDA BECKETT, DAMEON EDWARDS, WILLIAM E. LEWIS, JR., RICHARD JAMES, CASSANDRA CISSE, JULIO MONTANEZ AND RHODERICK LOVE, PLAINTIFFS-APPELLANTS,
v.
KEVIN RYAN, INDIVIDUALLY, AND IN HIS OFFICIAL CAPACITY AS COMMISSIONER OF HUMAN SERVICES, NEW JERSEY DEPARTMENT OF HUMAN SERVICES, ANCORA PSYCHIATRIC HOSPITAL, AND LATANYA WOOD EL, INDIVIDUALLY AND IN HER OFFICIAL CAPACITY AS EXECUTIVE DIRECTOR AND C.E.O. OF ANCORA PSYCHIATRIC HOSPITAL, DEFENDANTS-RESPONDENTS.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-5304-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued: November 28, 2007

Before Judges Axelrad and Messano.

Following pre-termination and formal departmental hearings, Ancora Psychiatric Hospital (Ancora), a State psychiatric hospital under the control of the Department of Human Services (DHS), suspended without pay eight employees after criminal background checks revealed charges or convictions for criminal offenses. Each employee was suspended pending the outcome of his or her criminal matter. Upon providing Ancora with documentation demonstrating the criminal charges were dismissed or the employee proved rehabilitation following the conviction, the suspensions were lifted and seven plaintiffs were reinstated, all but one with back pay. One plaintiff has not been reinstated as his criminal charges have not been adjudicated. None of the plaintiffs filed administrative appeals of his or her suspension. Instead, plaintiffs filed suit in the Superior Court against Kevin Ryan, individually and in his official capacity as Commissioner of Human Services, New Jersey Department of Human Services; Ancora; and Latanya Wood El, individually and in her official capacity as Executive Director and CEO of Ancora. Plaintiffs contended Ancora improperly interpreted and applied the "Criminal History Background Check Law" (CHBCL), N.J.S.A. 30:4-3.4 to - 3.10, also called the "Codey Bill,"*fn1 and Section 13 of the Civil Service Act (CSA), N.J.S.A. 11A:2-13, in conducting criminal history record checks on employees who did not provide their express written consent and in suspending employees without pay pending the outcome of their criminal charges. Plaintiffs sought temporary and permanent injunctions, declaratory relief, and damages for violations of their civil rights under 42 U.S.C.A. § 1983. The Law Division judge transferred the first two counts of plaintiffs' complaint to the Appellate Division and retained the § 1983 count. We dismiss Counts I and II of plaintiffs' complaint with prejudice for failure to exhaust administrative remedies.

I.

We recite the specific facts pertaining to each plaintiff:

Carmella Hood

Hood was hired as a licensed practical nurse in November 2005. On June 5, 2006, Hood was arrested and charged with second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a), specifically, abandoning her nine-year-old daughter at a supermarket and driving home to teach the child a lesson when she refused to leave the store. Upon learning of the arrest, Ancora served Hood with a Preliminary Notice of Disciplinary Action dated June 9, 2006, pursuant to N.J.A.C. 4A:2-2.5, suspending her with pay pending a pre-termination hearing. Three days later, that hearing was held, during which Hood had union representation, and after reviewing the complaint, the hearing officer converted Hood's suspension to a suspension without pay pending the outcome of the formal administrative hearing. He found Hood's immediate suspension was necessary and in accordance with N.J.A.C. 4A:2-2.5.

Hood appeared at the formal departmental hearing on June 20, 2006 with union representation. Jill Thaon, Ancora's Employee Relations Coordinator, stated that due to the nature of the charge, management had no discretion in the matter in that the charges fell under N.J.S.A. 30:4-3.5*fn2 ; therefore, in the best interests of Ancora, Hood should be placed on indefinite suspension pending adjudication of the criminal charge. Hood's union representative stated he was aware, because of the nature of the charge, that Hood had to remain suspended until disposition of the criminal matter.*fn3 Hearing Officer Cheron Quashie-Rosado found that, due to the nature of the charge, which fell under N.J.S.A. 30:4-3.5 and had not been adjudicated in a court of law, it was in Ancora's best interest to suspend Hood without pay pending disposition of the charge. Hood did not appeal her suspension to the Merit System Board (Board).

Hood presented documentation to Ancora indicating the criminal charge against her was dismissed on the municipal court trial date of October 11, 2006. She was reinstated on October 17, 2006, and received back pay for the entire period of her suspension.

Amanda Beckett

Beckett was hired as a licensed practical nurse on September 19, 2005. On February 23, 2006, Beckett was charged with third-degree making terroristic threats, N.J.S.A. 2C:12-3(b), and the petty disorderly offense of harassment, N.J.S.A. 2C:33-4(b) and (c), specifically, "threatening to kill [E.M., a neighbor] to 'fin[]ally' shut her up." Upon learning of the criminal charges, Ancora served Beckett with a Preliminary Notice of Disciplinary Action dated March 3, 2006, pursuant to N.J.A.C. 4A:2-2.5, suspending her with pay pending a pre-termination hearing. Three days later, that hearing was held, during which Beckett had union representation, and after reviewing the complaint, the hearing officer converted Beckett's suspension to a suspension without pay pending the outcome of the formal administrative hearing. He found Beckett's immediate suspension was necessary and in accordance with N.J.A.C. 4A:2-2.5.

Beckett appeared at the formal departmental hearing on March 28, 2006 with union representation. Mona Fredlund, Ancora's representative, stated that due to the nature of the charges, management had no discretion in the manner in that the charges fell under N.J.S.A. 30:4-3.5; therefore, in the best interests of Ancora, Beckett should be placed on indefinite suspension pending their adjudication. Beckett's union representative argued she had not been convicted and N.J.S.A. 30:4-3.5 refers to "conviction[s]," and it was unconstitutional to suspend her without having proven guilt. He further stated Beckett had no prior problem with her employment at Ancora and did not pose a danger to the hospital. Hearing Officer Christine Del Rossi found that, due to the nature of the charges, which fell under N.J.S.A. 30:4-3.5 and had not been adjudicated in a court of law, it was in Ancora's best interest to suspend Beckett without pay pending disposition of the charges. Beckett did not appeal her suspension to the Board.

Beckett presented documentation to Ancora indicating the criminal charges had been dismissed administratively and by the municipal court on June 5, 2006. Beckett returned to work the same day and received back pay for the entire period of her suspension.

Dameon Edwards

Edwards was hired as a food preparer in June l999 and promoted to a cook. On April 8, 2006, Edwards was arrested and charged with fourth-degree possession of marijuana/hashish, N.J.S.A. 2C:35-10(a)(3); third-degree distribution of marijuana/hashish, N.J.S.A. 2C:35-5(b)(11); and third-degree possession of a controlled dangerous substance on school property, N.J.S.A. 2C:35-7. Upon learning of the criminal charges, Ancora served Edwards with a Preliminary Notice of Disciplinary Action dated May 30, 2006, pursuant to N.J.A.C. 4A:2-2.5, suspending him with pay pending a pre-termination hearing. The next day that hearing was held, during which Edwards had union representation. Referencing N.J.S.A. 30:4-3.5 and the nature of the criminal charges, Thaon argued that Edwards' immediate suspension was necessary due to safety implications. Edwards' union representative argued that under the statute, the employee could submit rehabilitative evidence to the Commissioner of Human Services within thirty days, and during that time the suspension should be with pay. The hearing officer converted Edwards' suspension to a suspension without pay pending the outcome of the formal administrative hearing. He found Edwards' immediate suspension was necessary and in accordance with N.J.A.C. 4A:2-2.5.

The formal departmental hearing was scheduled for June 20, 2006 at 10:00 a.m. At 7:30 a.m. that day Edwards purportedly left a voice mail message that he could not attend due to child care issues and requested a postponement. The hearing was held that day, and Edwards' union representative did not appear. Thaon stated that due to the nature of the charges, management had no discretion in the manner in that the charges fell under N.J.S.A. 30:4-3.5; therefore, in the best interests of Ancora, Edwards should be placed on indefinite suspension pending their adjudication. Hearing Officer Quashie-Rosado found that, due to the nature of the charges, which fell under N.J.S.A. 30:4-3.5 and had not been adjudicated in a court of law, it was in Ancora's best interest to suspend Edwards without pay pending disposition of the charges. Edwards remains on suspension because the criminal charges against him are still pending. Edwards did not appeal his suspension to the Board.

William E. Lewis, Jr.

Lewis was hired as a human services assistant in November l999. On March 13, 2005, Lewis was arrested and charged with third-degree making terroristic threats, N.J.S.A. 2C:12-3(b), and the disorderly persons offense of simple assault, N.J.S.A. 2C:12-1(a)(1), specifically, "grabbing [D.P., his ex-wife] by the throat, pushing her face onto a piece of furniture . . . and telling her that [he] would kill her if she reported this incident to the police." Upon learning of the arrest, Ancora served Lewis with a Preliminary Notice of Disciplinary Action dated April 1, 2005, pursuant to N.J.A.C. 4A:2-2.5, suspending him with pay pending a pre-termination hearing. On April 4, 2005, that hearing was held, during which Lewis had union representation, and after reviewing the complaint, the hearing officer converted Lewis' suspension to a suspension without pay pending the outcome of the formal administrative hearing. He found Lewis' immediate suspension was necessary due to safety implications and in accordance with N.J.A.C. 4A:2-2.5.

Lewis appeared at the formal departmental hearing on May l2, 2005 with union representation. Terry O'Lone, Ancora's Human Resources Acting Manager, stated that due to the nature of the charges, management had no discretion in the manner in that the charges fell under N.J.S.A. 30:4-3.5; therefore, in the best interests of Ancora, Lewis should be placed on indefinite suspension pending their adjudication. Lewis' union representative stated Lewis understood the nature of the matter, would work on getting the matter cleared in court and understood he would remain suspended until that time. Hearing Officer Edmund Dillon found that, due to the nature of the charges, which fell under N.J.S.A. 30:4-3.5 and had not been adjudicated in a court of law, it was in Ancora's best interest to suspend Lewis without pay pending disposition of the charges. Lewis did not appeal his suspension to the Board.

Lewis presented documentation to Ancora indicating the criminal charges against him were dismissed in municipal court on July 11, 2005. He was reinstated on July 19, 2005, and received back pay for the entire period of his suspension.

Richard James

James was hired as a recreation therapist in l984 and later promoted to human services technician. On or about November 23, 2004, Ancora received information indicating that, during the period from July 1968 through June l974, James was arrested and charged on eight separate occasions with various criminal offenses in New York City. The charges included first and second-degree assault, felony possession of a weapon, felony reckless endangerment, "menacing order of protection," possession of a weapon, and assault. On March 8, 2005, Ancora notified James he was being suspended without pay due to the nature of these charges, and he was required to submit documentation as to their disposition, which was unavailable to his employer. On March 11, 2005, James submitted documentation to Ancora that all of the criminal charges against him had been dismissed. James was permitted to return to work on that date, and received back pay for the entire period of his suspension.

Cassandra Cisse

Cisse was hired as a human services assistant in l995 and later promoted to human services technician. On August 20, 2001, Cisse pled guilty in municipal court to simple assault, N.J.S.A. 2C:12-1(a)(1), in connection with a domestic violence incident. Upon learning of this conviction, Ancora served Cisse with a Preliminary Notice of Disciplinary Action dated March 27, 2006, pursuant to N.J.A.C. 4A:2-2.5, suspending her with pay pending a pre-termination hearing. The next day that hearing was held, during which Cisse had union representation, who argued that in pleading guilty, Cisse did not understand the possible effects related to her employment. O'Lone stated that based on the nature of the charge, Cisse's immediate suspension was necessary due to safety implications. Hearing officer Dillon converted Cisse's suspension to a suspension without pay pending the outcome of the formal administrative hearing. He found Cisse's immediate suspension was necessary and in accordance with N.J.A.C. 4A:2-2.5.

The formal departmental hearing scheduled for May l6, 2006 was postponed because Cisse gave birth on May 8. In the interim, Cisse provided Ancora with letters from her co-workers and supervisor and an explanation of the "isolated" incident demonstrating she was rehabilitated, see N.J.S.A. 30:4-3.5b, and on July 14, 2006, continued employment approval was granted pursuant to Administrative Order 4:10. On July 17, 2006, Cisse was permitted to return to work, and received back pay and benefits for the period of her suspension, less the time she was on approved medical leave of absence.

Julio Montanez

Montanez was hired as a human services assistant on November 5, 2002. On April 29, 2006, Montanez was arrested and charged with third-degree threatening to commit a crime, N.J.S.A. 2C:12-3(a), and the disorderly offense of rioting with purpose to commit a crime, N.J.S.A. 2C:33-1(a)(1). Upon learning of the charges, Ancora served Montanez with a Preliminary Notice of Disciplinary Action dated May 10, 2006, pursuant to N.J.A.C. 4A:2-2.5, suspending him with pay pending a pre-termination hearing. Two days later, that hearing was held, during which Montanez had union representation, who argued the employee was not a threat to the hospital, he had not been convicted of the charges, and he should be returned to duty. Thaon argued that based on the nature of the charges, Montanez's immediate suspension was necessary due to safety implications. The hearing officer converted Montanez's suspension to a suspension without pay pending the outcome of the formal administrative hearing, finding his immediate suspension was necessary and in accordance with N.J.A.C. 4A:2-2.5.

On June 6, 2006, the formal departmental hearing was held, but Montanez failed to appear and his union representative declined to participate in the hearing. Hearing Officer Charlene Ruberti found that, due to the nature of the charges, one of which fell under N.J.S.A. 30:4-3.5, and the charges not having been adjudicated, it was in Ancora's best interest to suspend Montanez without pay pending disposition of the charges. Montanez did not appeal his suspension to the Board.

Montanez presented documentation to Ancora indicating the criminal charges had been dismissed administratively and by the municipal court on April 24, 2007. On May 7, 2007, Montanez was reinstated and received back pay for the entire period of his suspension.

Rhoderick Love

Love was hired as a human services technician in l996. On November 20, 2004, Love was arrested and charged with the disorderly persons offense of possession of marijuana, N.J.S.A. 2C:35-10a(4). Upon learning of the charge, Ancora served Love with a Preliminary Notice of Disciplinary Action dated February 1, 2005, pursuant to N.J.A.C. 4A:2-2.5, suspending him with pay pending a pre-termination hearing. The next day, that hearing was held, during which neither Love nor his union representative appeared. Evelyn Kaminsky, Ancora's Personnel Assistant, argued that based on the nature of the charge, Love's immediate suspension was necessary due to safety implications. The hearing officer converted Love's suspension to a suspension without pay pending the outcome of the formal administrative hearing, finding his immediate suspension was necessary and in accordance with N.J.A.C. 4A:2-2.5.

Love and his union representative appeared at the formal departmental hearing on March 22, 2005. The representative requested Love remain on suspension pending adjudication of the charges. Hearing Officer Quashie-Rosado recommended Love remain suspended without pay pending disposition of the charge. Love did not appeal his suspension to the Board.

On June 7, 2006, Love presented documentation to Ancora indicating that on June 5, 2006, his criminal charge was downgraded to loitering, and he pled guilty to the lesser charge. Although Love was reinstated on June 12, 2006, Ancora determined he was not entitled to back pay or benefits because his conviction constituted conduct unbecoming a public employee.*fn4

II.

On June 30, 2006, plaintiffs filed a verified complaint for injunctive relief and damages with an order to show cause seeking temporary restraints in the Superior Court, Chancery Division, Camden County. The case was administratively transferred to the Law Division, and plaintiffs' application for preliminary injunctive relief was denied by order of September 11, 2006.

On September 27, 2006, plaintiffs filed an amended complaint asserting, in pertinent part:

Summary of Defendants' Actions

22. Defendants have and are engaged in an ongoing pattern and practice of willfully, purposely and intentionally applying the Codey Bill ["N.J.S.A. 30:4-3.4, et. seq."] and N.J.A.C. 4A:2-2.5(a)2 [Regulation promulgated under Section 13 of the CSA], with respect to the Plaintiffs and others similarly situated, in a manner which violates the express language of the Codey Bill, the Forfeiture Law [N.J.S.A. 2C:51-2], and existing case law decided there under, and ignores virtually all of the above-referenced procedural and substantive protections and rights which are set forth in the legislation. In so doing, Defendants have also deprived Plaintiffs, through state action, of rights secured by the Due Process Clause of the l4th Amendment to the United States Constitution.

COUNT I

Interlocutory and Permanent Injunction;

Declaratory Relief

N.J.S.A. []30:4-3.4, et seq. (Plaintiffs v. All Defendants)

Plaintiffs cited the following acts of defendants as violations of the Codey Bill: (1) "conducting criminal records history checks on Plaintiffs who have not given their express written consent thereto"; (2) "retaining, for a period of more than six months from the date of a determination that the Plaintiffs are qualified for employment, criminal history record information, and reusing the same information to disqualify said Plaintiffs"; (3) suspending without pay, citing the Codey Bill and/or N.J.A.C. 5A:2-2.5(a)(2) as the reason, (i)"Plaintiffs who have neither given nor refused to give a written consent to criminal records history checks"; (ii) "Plaintiffs who have been charged and/or arrested, but who have not been convicted";*fn5

(iii) "Plaintiffs who were arrested for or convicted of offenses not covered by the Codey Bill"; (iv) "Plaintiffs who were never given written notice of a right to petition the commissioner for a hearing, within 30 days of the date of the notice, for the purpose of challenging the accuracy of the criminal records information, or to demonstrate rehabilitation"; (v) "within less than 30 days from the date of the notice of suspension and/or disqualification, Plaintiffs who at the time of the disciplinary action have not had the full 30-day opportunity to petition the commissioner for a hearing for the purpose of challenging the accuracy of the criminal records information, or to demonstrate rehabilitation"; (vi) "Plaintiffs whose work history under the commissioner, references, reputation, character and status in the community, and remoteness of the offense, constitute clear and convincing evidence, affirmatively so demonstrated, that they are rehabilitated in fact"; (vii) "Plaintiffs whose convictions were prior to the April, l997 effective date of the amendment to the Codey Bill pursuant to which employees were first covered";

(4) immediately disqualifying plaintiffs from further employment, citing the Codey Bill and/or N.J.A.C. 4A:2-2.5(a)2 as the reason, "for reasons other than refusal by said employees to consent to a criminal history records check"; and (5) using and applying the suspension authority contained in the CSA, N.J.S.A. 11A:2-13, and regulations, N.J.A.C. 4A:2-2.5(a)2 and N.J.A.C. 4A:2-2.7(a)2, to suspend without pay employees whose arrests or record of criminal charges were discovered pursuant to the authorization of the Codey Bill, but who have neither been convicted of criminal offenses enumerated under the Codey Bill, nor charged with offenses which touch upon their office, position, or employment, and with respect to whom there has been no finding that said employees are unfit for duty, or present a threat to the safety, health, or the effective functioning of the appointing authority.

Plaintiffs sought a declaration that defendants' actions are inconsistent with the language and intent of the Codey Bill and Forfeiture Law and injunctive relief to halt ongoing violations.

COUNT II

Interlocutory and Permanent Injunction;

Declaratory Relief

N.J.S.A. []11A:2-13 (Civil Service Act)

(Plaintiffs v. All Defendants)

Plaintiffs asserted an "as applied" challenge to the constitutionality of the CSA and its regulations, i.e., Ancora's "ongoing application" of the permissive suspension authority contained in N.J.S.A. 11A:2-13, N.J.A.C. 4A:2-2.5, and N.J.A.C. 4A:2-2.7, "to systematically suspend without pay all employees who are charged, but not convicted, of criminal offenses . . . undermines the legal principle of innocent until proven guilty." Plaintiffs claimed defendants' acts resulted in irreparable injuries that are incapable of restoration with back pay, including damages to their persons, their families, and their reputations. Accordingly, plaintiffs sought injunctive and declaratory relief to halt the alleged unconstitutional practices.

In the third count of their Complaint, plaintiffs alleged defendants violated their federal rights under 42 U.S.C.A. § 1983, and sought injunctive relief and damages. Defendants moved to dismiss the amended complaint for failure to state a claim. By order of December 11, 2006, the court transferred Counts I and II to the Appellate Division for further proceedings. It further denied without prejudice defendants' motions to dismiss Count III and to dismiss plaintiffs' claims for monetary relief against defendants in their individual capacities under the doctrine of qualified immunity, and directed that Count III remain in the Law Division.

Plaintiffs make the following arguments to us: (1) the case was not filed as a request for an agency review of decisions involving individual plaintiffs or as an agency appeal within the purview of Rule 2:2-3(a)(2), but instead seeks to compel the DHS Commissioner to perform ministerial duties as set forth in the CHBCL and CSA, N.J.S.A. 11A:2-13; therefore, the doctrine of exhaustion of administrative remedies does not apply; (2) the Appellate Division should grant the interlocutory and final injunctive and declaratory relief sought in Count I of the Amended Complaint because defendants failed to comply with the provisions of the CHBCL, have applied Section 13 of the CSA in a manner that undermines the legislative intent of the CHBCL, and have interpreted the CHBCL as eliminating the necessity of affording affected employees their "Loudermill"*fn6 rights; (3) the Appellate Division should grant the interlocutory and final injunctive and declaratory relief sought in Count II of the Amended Complaint because plaintiffs have suffered irreparable injury and have no adequate remedy at law with respect to defendants' application of Section 13 of the CSA and implementing regulations; and (4) the Commissioner's practice of uniformly suspending employees who are charged but not convicted of criminal offenses violates New Jersey's presumption of innocence principle.

III.

The CHBCL, N.J.S.A. 30:4-3.4 to -3.10, mandates criminal history record checks for current and prospective employees of State facilities serving mentally ill or developmentally disabled persons to determine their suitability for employment.

The check "shall be conducted at least once every two years for an individual employed at the facility." N.J.S.A. 30:4-3.5a. Individuals are disqualified from employment if they are convicted of: (1) any crime or disorderly persons offense (a) involving danger to the person, set forth in N.J.S.A. 2C:11-1 et seq., N.J.S.A. 2C:12-1 et seq., N.J.S.A. 2C:13-1 et seq., N.J.S.A. 2C:14-1 et seq., or N.J.S.A. 2C:15-1 et seq., or (b) against the family, children or incompetents, set forth in N.J.S.A. 2C:24-1 et seq.; or (2) crimes in another state which would constitute these crimes in New Jersey. N.J.S.A. 30:4-3.5a(1) and (2). Such individuals, however, can affirmatively demonstrate clear and convincing evidence of rehabilitation to the Commissioner of Human Services to avoid disqualification. N.J.S.A. 30:4-3.5b.

Under the CSA, a public employer, such as Ancora, is given the discretion to take disciplinary action prior to an employee's criminal conviction. N.J.S.A. 11A:2-13 provides in part:

This section shall not prohibit the immediate suspension of an employee without a hearing if the appointing authority determines that the employee is unfit for duty or is a hazard to any person if allowed to remain on the job or that an immediate suspension is necessary to maintain safety, health, order or effective direction of public services. In addition, where a suspension is based on a formal charge of a crime of the first, second or third degree, or a crime of the fourth degree if committed on the job or directly related to the job, the suspension may be immediate and continue until a disposition of the charge. The [Merit System B]oard shall establish, by rule, procedures for hearings and suspensions with or without pay. [(emphasis added).]

See also implementing regulations N.J.A.C. 4A:2-2.4 (providing that in State service, suspensions shall be without pay unless directly authorized to be with pay by the department head); N.J.A.C. 4A:2-2.5 (setting forth the procedure for service of a Preliminary Notice of Disciplinary Action, providing for discretionary immediate suspension in circumstances mirroring N.J.S.A. 11A:2-13, providing for a departmental hearing, and noting that "[a]ppeals concerning violations of this section may be presented to the Commissioner [of Personnel] through a petition for interim relief" in accordance with N.J.A.C. 4A:2-1.2); N.J.A.C. 4A:2-2.6 (setting forth rudimentary process requirements of departmental hearings and the requirement of determination within twenty days of hearing); N.J.A.C. 4A:2-2.7 (in actions involving criminal matters, the initial departmental hearing "shall be limited to the issue of whether the public interest would best be served by suspending the employee until disposition of the criminal complaint or indictment"; and "[t]he standard for determining that issue shall be whether the employee is unfit for duty or is a hazard to any person if permitted to remain on the job, or that an immediate suspension is necessary to maintain safety, health, order or effective direction of public services[]"); N.J.A.C. 4A:2-2.8 (an appeal from a Final Notice of Disciplinary Action must be filed with the Board within twenty days of receipt of that notice).

The Board was created under the CSA within the Department of Personnel, with the Commissioner of Personnel serving as its chairperson. N.J.S.A. 11A:2-1; N.J.S.A. llA:2-3. The Board's duties include conducting hearings and rendering the final administrative decision on appeals of disciplinary action taken against public employees. N.J.S.A. 11A:2-6. An employee has the right to appeal to the Board a final decision or action by the appointing authority imposing a suspension greater than five days. N.J.S.A. llA:2-14. The Legislature also expressly gave the Board responsibility to "[a]dopt and enforce rules to carry out [the CSA] . . ." and to "[i]nterpret the application of [the CSA] by any public body or entity." N.J.S.A. llA:2-6d and e.

IV.

In its first point, plaintiffs contend the DHS Commissioner failed to follow the CHBCL and CSA in a variety of ways. Plaintiffs emphasize that the CHBCL clearly limits the Commissioner's power to take disciplinary action to cases involving employees convicted of covered offenses. On the other hand, Section 13 of the CSA and its implementing regulations give discretionary authority to the agency to suspend an employee who has criminal charges pending and, according to plaintiffs, "expressly limit the Commissioner's power to suspend employees to cases where there is evidence, other than or in addition to the mere existence of a pending criminal charge, that the Agency would be deleteriously affected by the employee's continued performance of his or her duties during the disposition of the criminal charges." Plaintiffs complain that the Commissioner has established a policy, based on an incorrect interpretation of the two statutes, which has resulted in Ancora's holding of hearings in which no evidence is presented other than the existence of a pending criminal charge, resulting in an automatic suspension, without pay, of all employees charged with criminal offenses. Plaintiffs challenge this policy and urge us assume original jurisdiction, R. 2:10-5, and compel the DHS Commissioner to "obey the law" and cease this policy.

Plaintiffs point out that only Cisse and James had convictions. Yet at the departmental hearings, Ancora management improperly used the CHBCL as the reason for initiating disciplinary action, stating it was obligated to mandatorily seek suspension of all the employees "due to the nature of the charges," which fell "under the provisions of N.J.S.A. 30:4-3.5." Moreover, the hearing officers expressly referenced that statute in determining it was in the best interests of the hospital to place the employees on indefinite suspension, without pay, pending the disposition of their respective criminal charges. Additionally, although the hearing officers referenced CSA regulation N.J.A.C. 4A:2-2.5 as a basis for suspension, they relied solely on the fact of the charge, which in not all cases was even within the category of offenses set forth in the CHBCL.*fn7 Plaintiffs further argue the hearing officers allowed no testimony or other evidence to be presented that might have affected their discretionary decision to suspend, or possibly impacted on their decision to suspend "without pay," presumably because of the DHS Commissioner's erroneous policy. Plaintiffs also urge that Cesse should have been permitted to offer evidence of rehabilitation at the departmental hearings.*fn8

Plaintiffs additionally seek for us to direct the DHS Commissioner to promulgate "rules and regulations necessary to implement" the CHBCL, as mandated by N.J.S.A. 30:4-3.9. According to plaintiffs, that will avoid action such as occurred here by which the agency improperly "adopt[ed] a rule of general application through adjudication rather than rule-making under the Administrative Procedure Act," and ensure the statutory opportunity for public input and legislative review. See O'Lone v. Dep't of Human Servs., 357 N.J. Super. 170, 180 (App. Div. 2003).

Plaintiffs argue they had no obligation to exhaust administrative remedies as a prerequisite to filing suit because of the nature of the relief sought, the overriding public interest, and the futility of an appeal. See Garrow v. Elizabeth Gen. Hosp. & Dispensary, 79 N.J. 549, 561 (1979). Plaintiffs emphasize the relief sought is in the nature of mandamus and submit there would have been no evidence for the Board to review. They urge that the Board could have determined only whether the individual employee was suspended properly under law. In contrast, we could determine whether the agency systematically violated the law, which is the "obvious appropriate remedy . . . with a 'record' of this sort in a large number of cases." Plaintiffs argue that the issues are legal, not factual, and can be determined on the record before us. They cite to N.J. Civil Serv. Ass'n v. State, 88 N.J. 605, 613 (1982), in which the Court stated,

We have frequently held that in a case involving only legal questions, the doctrine of exhaustion of administrative remedies does not apply. . . .

In this case, there are no facts in dispute. We need consider only the law and legislative history. Nor does resolution of the disputed issue call for the exercise of special administrative expertise. In these circumstances, putting appellants to the additional expense and delay of bringing their case in the appropriate administrative forum is unjustified.

Plaintiffs also assert that appeals to the Commissioner to challenge his policy would be futile. See Matawan Borough v. Monmouth County Tax Board, 51 N.J. 291, 297 (1968) (Exhaustion of remedies is an "idle gesture" where the appeal seeks that administrative body to "declare illegal its own actions under the statute.") (citations and quotations omitted).

Defendants argue the case should be dismissed because plaintiffs failed to exhaust their administrative remedies. They urge that dismissal, rather than remand to the Board, is appropriate because the statutory time limitation for filing an administrative appeal has long since elapsed. Alternatively, defendants contend the suspensions should be affirmed because they were authorized by the CSA and did not violate the CHBCL, plaintiffs were afforded due process in their suspensions, and plaintiffs' presumption of innocence does not prohibit Ancora from suspending its employees until disposition of their criminal charges. We are in accord with defendants' position that plaintiffs' failure to exhaust their administrative remedies necessitates dismissal of the claims asserted in Counts I and II of their complaint.

"Exhaustion of administrative remedies before resort to the courts is a firmly embedded judicial principle." Garrow, supra, 79 N.J. at 558-59. "This principle requires exhausting available procedures, that is, 'pursuing them to their appropriate conclusion and, correlatively * * * awaiting their final outcome before seeking judicial intervention.'" Id. at 559 (citation omitted). Consistent with this principle, our Court Rules do not permit Appellate Division review of final decisions or actions of any State administrative agency or officer, or of the validity of any rule promulgated by such agency or officer "so long as there is available a right of review before any administrative agency or officer, unless the interest of justice requires otherwise." R. 2:2-3(a)(2).

The exhaustion requirement serves three primary purposes:

(1) it ensures that matters will be heard by the administrative body with expertise in the area; (2) it produces a complete factual record necessary for meaningful appellate review; and

(3) it may conserve judicial resources by potentially satisfying the parties and avoiding unnecessary adjudication. Bd. of Educ. of the Twp. of Bernards v. Bernards Twp. Educ. Ass'n, 79 N.J. 311, 317 (1979). Our Supreme Court thus summarized the doctrine of exhaustion of administrative remedies as follows:

[I]t is a rule of practice designed to allow administrative bodies to perform their statutory functions in an orderly manner without preliminary interference from the courts. In this respect the rule ensures that claims will be heard, as a preliminary matter, by the body having expertise in the area. This is particularly important where the ultimate decision rests upon factual determinations lying within the expertise of the agency or where agency interpretations of relevant statutes or regulations are desirable. [Paterson Redevelopment Agency v. Schulman, 78 N.J. 378, 386-87 (internal citation and quotations omitted), cert. denied, 444 U.S. 900, 100 S.Ct. 210, 62 L.Ed. 2d 136 (1979).]

Despite their contention to the contrary, plaintiffs are not seeking to compel the DHS Commissioner to perform ministerial duties. An official duty is ministerial when it is "absolutely certain and imperative, involving merely the execution of a set task, and when the law which imposes it prescribes and defines the time, mode and occasion of its performance with such certainty that nothing remains for judgment or discretion." Case v. Daniel C. McGuire, Inc., 53 N.J. Super. 494, 498 (Ch. Div. l959). Discussing "the ancient extraordinary remedy of mandamus," we have stated:

Mandamus issues "to compel the performance, in a specified manner, of ministerial duties so plain in point of law and so clear in matter of fact that no element of discretion is left as to the precise mode of their performance, but as to all acts or duties depending upon a jurisdiction to decide questions of law or to ascertain matters of fact, on the part of the officer or body at whose hands their performance is required, mandamus will not lie." [N.J. Optometric Ass'n v. Hillman-Kohan, 160 N.J. Super. 81, 93-94 (App. Div. l978) (internal citation omitted).]

We have held that where a functioning authority rendered its judgment and discretion in a way contrary to that which a plaintiff desired, the plaintiff "may not use mandamus to compel a decision in a particular way - its way." Id. at 94.

In the present case, plaintiffs' complaint challenges the propriety of the suspensions, and the "without pay" determinations, on procedural and substantive grounds. In reality plaintiffs are not asking us to compel the DHS Commissioner to perform any duty, let alone a ministerial duty, but rather they are asking us to find their suspensions are improper and violate the law and then to expand that finding beyond their particular case. To that extent plaintiffs are seeking to use mandamus to compel a decision in their favor, without affording us the benefit of a full and complete record due to their failure to exhaust their agency appeals to the Board and/or file procedural challenges to the Commissioner of Personnel. The issues plaintiffs raise, individually and collectively, should have been raised in the agency context. Then, plaintiffs could have moved to consolidate their individual appeals.

Appeal to the Board would not have been futile. The Board is not the same agency as DHS. Rather, it is an independent entity charged with interpreting the CSA and reviewing disciplinary actions. N.J.S.A. llA:2-6; see Hennessey v. Winslow Twp., 183 N.J. 593, 604 (2005) (The Board provides "[i]ndependent review of the employer's position about the appropriateness of discipline and the severity of the discipline to be imposed [and] . . . is the agency charged with responsibility for creating a disciplinary system of fair and consistent application to protect civil service employees at the State and local level."); In re Herrmann, 192 N.J. l9, 37 (2007) (The Board is "the entity charged with keeping State-government-wide standards of employee performance relatively consistent in disciplinary matters."). Thus, plaintiffs are not asking DHS to declare its own actions illegal; they are asking an independent body, who is statutorily entrusted with the responsibility to review disciplinary actions, to do so.

Moreover, the Board possesses the relevant expertise particularly suited to determine the issues raised in plaintiffs' complaint. Its authority to interpret State statutes is not limited to the CSA, and extends to other State laws relevant to matters before it. In re Allen, 262 N.J. Super. 438, 444 (App. Div. l993). The Board is required to act in accordance with all laws in the State, not just those contained in the CSA. Ibid.

We are not persuaded by plaintiffs' argument that an appeal to the Board would be futile because there is no evidence to review. The Board reviews administrative agency decisions on a de novo basis. Hennessey, supra, 183 N.J. at 595. Plaintiffs were not obligated to rely on the record presented at the departmental hearings. Nor would they have been penalized by the fact they did testify. The Supreme Court noted the difference between the departmental hearing pursuant to N.J.A.C. 4A:2-2.6 and the final administrative hearing before the Board, stating:

Plainly, the hearing afforded at [the departmental] level is designed to give the employee a fair and efficient opportunity to change the employer's mind about the appropriateness of the disciplinary action. It may serve that purpose well, but it does not afford other important procedural protections that are available on appeal to the [Board]. [Id. at 603.]

Plaintiffs could have presented whatever proofs they felt were relevant to the issues before the Board. Moreover, they could have advanced their legal arguments asserting procedural deficiencies in the disciplinary process, Ancora's improper use of the Codey Bill, its erroneous application of the CSA to require mandatory suspension without pay pending disposition of criminal charges, and the broad public interest concern of a pervasive, unfair policy pursued by the DHS based on a misapplication of law. Ancora, too, would have had the opportunity to make its record, factually and legally. The Board would have had the option of hearing the disciplinary appeal itself or referring the appeal to the Office of Administrative Law for a hearing before an administrative law judge. N.J.A.C. 4A:2-2.9(b). The Board would then adopt, reverse, or modify the disciplinary action of the appointing authority. N.J.A.C. 4A:2-2.9(d). If plaintiffs were not satisfied with the result, they would have had a proper final agency action to appeal. R. 2:2-3(a)(2). Plaintiffs failure to follow this procedure is fatal to their ability to pursue the claims asserted in the first and second counts of their complaint.

We turn now to plaintiffs' additional request for relief. Although we note the DHS Commissioner has not promulgated regulations to implement the CHBCL pursuant to the Legislature's directive in N.J.S.A. 30:4-3.9, the record is devoid of any basis to compel such action at this time.

Counts I and II of plaintiffs' complaint are dismissed with prejudice for failure to exhaust administrative remedies.


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