On appeal from a Final Administrative Action of the Merit System Board, DOP Docket No. 2006-2882.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Messano and Newman.
Tracie Irvin appeals from a final administrative decision by the Merit System Board (the Board) upholding action taken by the Newark School District (District) to resign Irvin not in good standing and to remove her from employment. This was based on Irvin's unapproved absence from work for five or more consecutive days and chronic absenteeism. We now affirm.
Irvin began working in the District as a teacher's aide in 1996 and changed her employment to that of a custodial worker effective May 11, 1999. She had a prior history of disciplinary action which included: a five-day suspension beginning April 8, 2002; a fifteen-day suspension issued December 21, 2004; and a fifteen-day suspension issued October 25, 2005. These suspensions were for chronic or excessive absenteeism or lateness and other sufficient cause.
Irvin's last day of work in the District was April 11, 2005. By letter dated October 21, 2005, Raymond A. Cassetta, Acting Director of the District's office of Labor and Employment Relationships, directed Irvin to return to work on October 31, 2005. The District had decided to accommodate Irvin and granted her family medical leave from April 12, 2005 until July 4, 2005. She had not returned to work on July 5, 2005 and had not communicated to the District. In the same letter of October 21, 2005, the District offered to apply the fifteen-day suspension retroactive to her unexplained AWOL from July 5 through August 26. The District further offered to apply her sick, personal and vacation days to her absence covering the period from August 29 to October 21, 2005. The District proposed to consider October 24 to October 28, 2005 as an administrative leave of absence. Lastly, the District said it would apply to the AWOL eight days of an earlier fifteen days of suspension that had not been served. Irvin did not return to work on October 31, 2005 as directed.
Following a hearing in the Office of Administrative Law, ALJ Celentano concluded that Irvin was absent from work since April 12, 2005 without explanation. Judge Celentano indicated that the District had been "more than accommodating" and had "exhibited great patience toward" Irvin, offering her several opportunities to return to work. Judge Celentano concluded that the District was justified in taking disciplinary action against Irvin and in imposing the penalty of removal. The Board adopted the ALJ's findings of fact and conclusions, affirming the action of the District to resign and remove Irvin from her employment.
On appeal, Irvin raises the following issue:
APPELLANT HAD INEFFECTIVE ASSISTANCE OF COUNSEL WHERE THE APPELLANT'S ATTORNEY DID NOT PRESENT DOCTOR'S NOTES TO REFUTE RESPONDENT'S CLAIMS THAT THE APPELLANT RESIGNED NOT IN GOOD STANDING.
Our standard of review of a decision by the Board is whether the determination is shown to be arbitrary, capricious or unreasonable or that it lacks fair support in the record as a whole. Karins v. City of Atlantic City, 152 N.J. 532, 540 (1998). If the evidence presented supports the Board's decision, even if we question the wisdom of the decision or possibly would have reached a different result, we nevertheless affirm. In re Herrmann, 192 N.J. 19, 27-28 (2007); Campbell v. N.J. Racing Comm., 169 N.J. 579, 587 (2001). Our review of the record satisfies us that there was ample evidence to support the Board's decision resigning and removing Irvin because of her unexplained absence from work.
We note that Irvin has not contested the Board's decision on the basis of a lack of evidence to support the determination, but rather has challenged the effectiveness of her counsel at the administrative hearing. In so doing, she has relied on the test for determining ineffective assistance of counsel in criminal cases. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 58 (1987). The ineffective assistance of counsel claim derives from the Sixth Amendment's counsel clause which applies to "all criminal prosecutions." Thus, the standard of measuring counsel's effectiveness does not apply in a civil case. Glick v. Henderson, 855 F.2d 536, 541 (8th Cir. 1988)(citing Watson v. Moss, 619 F.2d 775, 776 (8th Cir. 1980)); Keller v. Richardson-Merrell, 737 F.2d 1038, 1052 (D.C. Cir. 1984), vacated and remanded on other grounds, 472 U.S. 424, 105 S.Ct. 2757, 86 L.Ed. 2d 340 (1985). Irvin's argument is therefore untenable.
The order of the Board affirming the resignation of Irvin not in good standing and removing her ...