On Appeal from a Final Agency Decision of the Merit System Board, DOP Docket No. 2006-721.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Sabatino and Alvarez.
Mercer County Corrections Officer Russell Teel appeals a final decision of the Merit System Board (Board) affirming the imposition of disciplinary sanctions. The disputed ten- and twenty-day suspensions were imposed as a result of Teel's absences from work, taken without available sick time. The Board adopted as final an Initial Decision issued by an administrative law judge (ALJ) on September 29, 2006, which affirmed the sanctions. For the reasons that follow, we affirm.
Teel slipped and fell on ice while at work in March 2003. He suffered injuries to his arm, his right knee, underwent surgery on his right hand, and may require additional surgery. In October 2003 he was cleared to return to work although he was still experiencing difficulties due to the injuries. On May 3, 2005 and May 23, 2005, he called out sick, referring to his onthe-job injuries. Although he claimed at the administrative law hearing that he recalled giving the shift commander a doctor's note explaining the reasons for the absences, no copies were produced. When Teel called out, he knew he had no sick time available. As the Administrative Law Judge (ALJ) said, "on neither May 3 nor 23 did [Teel] have any authorization for a leave of absence, time off from work related to Worker's Compensation, or any available sick time."
Pursuant to the Mercer County Public Safety Law Enforcement Table of Offenses and Penalties" (Table of Offenses), Teel was issued a "Step 3" disciplinary action for the May 3 absence for "unsatisfactory attendance," "chronic and excessive absenteeism," and "conduct unbecoming a county employee." A ten-day suspension issued. As a result of the May 23 absence, a "Step 4" disciplinary action charged him with "chronic and excessive absenteeism" and "conduct unbecoming a county employee," and he was suspended for twenty days.
Departmental hearings conducted at Teel's request resulted in affirmance of the administrative sanctions. Teel appealed both final notices and the Board transferred the appeals to the Office of Administrative Law under a consolidated docket number for review.*fn2 The ALJ's opinion affirming the sanctions was adopted by the Board. The suspensions have already been served.
Appellate courts have a limited role in reviewing decisions of administrative agencies. State-Operated Sch. Dist. of Newark v. Gaines, 309 N.J. Super. 327, 331 (App. Div.), certif. denied, 156 N.J. 381 (1998); Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963). We should not independently assess the evidence. In re Taylor, 158 N.J. 644, 656 (1999). Instead, we are required to accord a strong presumption of reasonableness to the decision of an administrative agency. State-Operated Sch. Dist., supra, 309 N.J. Super. at 331. Determinations of administrative agencies must be given great deference. In re Freshwater Wetlands Prot. Act Rules, 180 N.J. 478, 488-89 (2004).
Indeed, an agency's decision should only be reversed when "it is arbitrary, capricious or unreasonable or it is not supported by substantial credible evidence in the record as a whole." Henry, supra, 81 N.J. at 579-80 (citing Campbell, supra, 39 N.J. at 562). We are persuaded that the agency's final decision is supported by substantial credible evidence and is founded in law.
Teel first contends that the discipline imposed was "excessive and unwarranted" because the absences occurred due to work-related injuries. Unfortunately, no steps were taken by Teel to document that the missed days resulted from the injuries and not for some other reason. As the ALJ said, Teel took no action after his return to work from those absences to seek to renew his work-related leave, "other than to go to the Occupational Health Center, where he was cleared to return to work." Factually there is no basis for mitigation of the discipline, even if the request was legally warranted. There was nothing arbitrary, capricious or unreasonable about the imposition of the progressive discipline on this record.
In his second point, Teel contends that the Attorney General Guidelines regarding Internal Affairs Policy & Procedures (Guidelines), promulgated pursuant to N.J.S.A. 40A:14-181, apply to disciplinary matters involving county corrections officers, and that the therefore the Table of Offenses employed by the county does not apply. We do not consider questions that were not presented to the lower court unless they concern matters of jurisdiction or public policy. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). Neither of those situations are present here.
Even if considered on its merits, the argument nonetheless fails because the preamble to the Guidelines specifically states the Guidelines do not apply to "county . . . correctional agencies." Mercer County's use of other lawful disciplinary guidelines is clearly permissible. The plain language of the Guidelines permits the county to make that choice. Therefore, this argument, not raised before the ALJ, also ...