May 6, 2008
IN THE MATTER OF BRIAN BAHM, DEPARTMENT OF PUBLIC SAFETY, COUNTY OF MERCER.
On appeal from a Final Administrative Decision of the Merit System Board, DOP Docket No. 2005-1852.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: April 23, 2008
Before Judges Cuff and Simonelli.
Appellant Brian Bahm is employed as a Mercer County Corrections Officer. He appeals from a final order of the Merit System Board (MSB) upholding a ten-day and a twenty-day suspension without pay for excessive absenteeism. We affirm.
The facts are uncontested. Bahm commenced his employment as a county corrections officer on September 9, 2002. He was entitled to fifteen days (120 hours) of sick time per year. Due to two non-work related injuries, Bahm was absent from work on medical leave for several months. Bahm started 2004 with sixteen hours of negative sick time leaving him with a balance of 104 hours of sick time for 2004.
Bahm was absent on April 16 and April 28. Both absences were unauthorized. He received a preliminary notice of minor disciplinary action for each absence. The first unauthorized absence was a step one violation, and the second absence was a step two violation. Bahm received an official reprimand for the step one violation and a five-day suspension without pay for the step two violation.
Bahm missed work again on May 8. By this time, he had exhausted his accrued sick time for that year. He was served with a preliminary notice of disciplinary action for excessive absenteeism, unsatisfactory attendance and conduct unbecoming a county employee. The May 8 unauthorized absence was a step three violation, which carries a ten-day suspension without pay.
On June 26, 2004, Bahm missed work due to a family emergency. He was served with a preliminary notice of disciplinary action and charged with unsatisfactory attendance, chronic and excessive absenteeism, and conduct unbecoming a county employee. This was a step four violation, which carried a twenty-day suspension without pay. Bahm requested a hearing and the matter was transmitted to the Office of Administrative Law.
An Administrative Law Judge (ALJ) upheld the suspensions. The MSB adopted the findings of the ALJ and held that the actions of the appointing authority were justified. On appeal, Bahm argues that the discipline was excessive and unwarranted due to the circumstances of his absences. He also contends that the appointing authority failed to adopt and follow the Attorney General's guidelines governing internal affairs policies and procedures required by N.J.S.A. 40A:14-181.
Our review of a final decision of an administrative agency is limited. In re Taylor, 158 N.J. 644, 656 (1999); Karins v. City of Atlantic City, 152 N.J. 532, 540 (1998). We will not disturb an agency decision unless it is arbitrary, capricious or unreasonable. Taylor, supra, 158 N.J. at 657; Karins, supra, 152 N.J. at 540.
Under this standard, our review is restricted to four inquiries: (1) whether the agency's decision is constitutionally offensive; (2) whether the decision violates express or implied legislative policies; (3) whether the record contains substantial evidence to support the findings; and (4) whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not have been made on a showing of relevant factors. Taylor, supra, 158 N.J. at 656; Karins, supra, 152 N.J. at 540.
Here, the facts are uncontested. The only inquiry is whether the discipline imposed on both occasions is unauthorized by law or unsupported by the facts of the case. It is not. The family caretaking concerns that contributed to Bahm's excessive absences are surely unfortunate. However, his personal problems had a systemic effect because it required co-employees to work extended hours and his employer to incur additional costs to insure appropriate staffing levels. Under these circumstances, the punishment is not so disproportionate to the offense that the agency action rises to the level of arbitrary or capricious. In re Herrmann, 192 N.J. 19, 28-29 (2007).
The Attorney General's Guidelines governing internal affairs and procedures do not apply to county corrections agencies. Moreover, the table of offenses and penalties that have been negotiated by an appointing authority and a union does not bind the MSB. Town of West New York v. Bock, 38 N.J. 500, 519 (1962). The MSB retains the authority to increase, decrease, reverse, or modify the suspensions and is not bound by any disciplinary table of offenses and penalties adopted by an appointing authority in making its decision. N.J.S.A. 11A:2-19; N.J.A.C. 4A:2-2.9.
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