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In re Bell


June 17, 2008


On appeal from a Final Administrative Decision of the New Jersey Merit System Board, 2005-2070.

Per curiam.


Submitted March 12, 2008

Before Judges Wefing and Lyons.

John Bell appeals from a Final Decision of the Merit System Board upholding his removal from his position as a County Corrections Officer with Essex County. After reviewing the record in light of the contentions advanced on appeal, we affirm.

Bell began his employment with the Essex County Department of Corrections in March 2001. In March 2004, Essex County opened a new correctional facility housing approximately 2,400 inmates, and Bell was assigned there. The Department of Corrections experienced certain staffing problems in connection with this opening, in particular that a number of corrections officers would not report for their assigned shifts.

Because of the necessity of adequate staffing at a corrections facility at all times, all corrections officers are subject to working mandatory overtime when they are needed to do so. Officers were not assigned to mandatory overtime on a random basis; rather, overtime duty was assigned on a rotational basis, that is, once a corrections officer had worked a mandatory overtime shift, his name would go to the bottom of the list of eligible employees, and he would not be required to work mandatory overtime again until those officers whose names were above his on the list had done so.

On April 22, 2004, Bell reported for duty on the 6:00 a.m. to 2:00 p.m. shift. At the end of that shift, not all the officers scheduled to work the next shift had arrived, and Bell and other officers were not permitted to leave until arrangements had been made for complete staffing of the afternoon shift.

Bell was distressed at this development because he was scheduled to pick up his young son from daycare. Bell was the sole provider for the boy, his mother having abandoned them. The mandatory overtime policy had made him late on several occasions in picking up his son. He testified that the last time he had been late, the daycare facility had warned him that if he were late again without adequate warning, it would notify the Division of Youth and Family Services.

For reasons that are not apparent from the record, delays developed as the supervisory personnel decided how many corrections officers would have to work mandatory overtime and who those officers would be. Jail personnel estimated the delay at fifteen to twenty minutes while Bell testified it took more than an hour. That discrepancy is not material, however. What is clear from the record is that Bell was not the only officer who was disgruntled at the prospect of working overtime. Indeed, feelings were running so high that the shift commander found it necessary to lock the doors to the facility so that the corrections officers who had completed their shift could not leave until all staffing decisions were made. Bell attempted to explain to the shift commander the situation with respect to his son but was unsuccessful. He requested permission to make a telephone call to the daycare center to explain the situation, but his request was denied.

Emotions were running high among all the affected corrections officers, but Bell became distraught at the situation and went into a tantrum, yelling and kicking and banging upon the doors. During this tantrum, he became so uncontrolled that he set off the fire alarm.

Bell was immediately suspended as a corrections officer and thereafter notified that he had been terminated. He appealed, and a hearing was conducted before an administrative law judge who, after four days of hearings, issued an opinion finding Bell guilty of conduct unbecoming a public employee and insubordination. The administrative law judge, however, concluded that termination was an excessive penalty and reduced his penalty to a suspension of sixty days. The matter was presented to the Merit System Board, which adopted the findings of the administrative law judge but refused to accept his recommendation that Bell not be terminated but suspended for sixty days; the Merit System Board upheld the decision of the Department of Corrections that Bell should be terminated. This appeal followed.

Bell makes but one contention on appeal, that the Board's decision that he should be removed as a corrections officer was arbitrary, capricious and unreasonable and not supported by the credible evidence. We disagree, and thus affirm.

A final decision of an administrative body such as the Merit System Board should not be disturbed on appeal unless it is arbitrary, capricious or unreasonable. Karins v. City of Atlantic City, 152 N.J. 532, 540 (1998). An appellate court should undertake a "careful and principled consideration of the agency record and findings." Riverside Gen. Hosp. v. N.J. Hosp. Rate Setting Comm'n, 98 N.J. 458, 468 (1985). The agency's findings should be affirmed if they "could reasonably have been reached on sufficient credible evidence present in the record, considering the proofs as a whole . . . with due regard also to the agency's expertise." Close v. Kordulak Bros., 44 N.J. 589, 599 (1965) (citations omitted). The Supreme Court recently restated these guiding principles.

[A]n appellate court ordinarily should not disturb an administrative agency's determinations or findings unless there is a clear showing that (1) the agency did not follow the law; (2) the decision was arbitrary, capricious or unreasonable; or (3) the decision was not supported by substantial evidence. [In re Application of Virtua-West Jersey Hospital Voorhees for a Certificate of Need, No. A-127-06, slip op. at 7-8 (April 23, 2008).]

Further, when an appellate court is reviewing the imposition of a disciplinary sanction, that court "has no power to act independently as an administrative tribunal or to substitute its judgment for that of the agency." In re Herrmann, 192 N.J. 19, 28 (2007). The proper test in considering administrative disciplinary matters is "whether such punishment is 'so disproportionate to the offense, in light of all the circumstances, as to be shocking to one's sense of fairness.'" In re Polk, 90 N.J. 550, 578 (1982) (quoting Pell v. Board of Education, 313 N.E.2d 321 (N.Y. 1974)).

Bell contends that the decision of the Board is arbitrary because it failed to take into account certain mitigating factors noted by the administrative law judge, including that Bell had not contributed to the staffing shortage, and having worked overtime each of the two preceding days had not reasonably anticipated that he would be required to do so again that day. The administrative law judge also noted that the alarm was quickly deactivated and had not interfered with the functioning of the jail.

That one may sympathize with Bell for the dilemma which confronted him, and understand his frustration at the delay in making staffing decisions, does not affect the legal analysis of the question. The administrative law judge in his opinion referred to the concept of progressive discipline, enunciated in West New York v. Bock, 38 N.J. 500, 523 (1962). The administrative law judge noted, however, that during Bell's short term of employment he had already been the subject of disciplinary action in 2003 and had been suspended for twenty days. As part of that earlier proceeding, Bell executed an agreement reflecting his understanding that any future disciplinary charges would "be cause for more severe disciplinary action, specifically immediate termination from employment."

The position of corrections officer entails significant responsibility and requires individuals who can perform their duties under conditions of great stress. A corrections officer must possess self-discipline and self-control under very difficult circumstances. An individual who, for whatever reason, is unable to exhibit those characteristics should not serve in the position of a corrections officer, for a loss of discipline and control poses a risk both to his fellow officers and to the inmates in his custody.

In our judgment, we cannot fairly characterize the decision of the Merit System Board as arbitrary, capricious or unreasonable, and it is thus affirmed.



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