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In re Boone

February 9, 2009

IN THE MATTER OF PHILLIP BOONE


On appeal from the Merit System Board, Department of Personnel, DOP Docket No. 2006-3209.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 22, 2009

Before Judges Payne and Waugh.

Phillip Boone appeals the decision of the Merit System Board (Board) affirming the termination of his employment. Boone argues that the Board's decision was arbitrary and capricious because it was not supported by the evidence in the record. He also argues that the Board failed to apply properly the principles of progressive discipline. We dismiss the appeal as it relates to Boone's challenge to the factual basis for the Board's decision because Boone has not provided a transcript of the fact finding hearing. We affirm as to the issue of progressive discipline.

I.

The facts of the case were disputed. We set forth the facts as found in the May 10, 2007, decision of the administrative law judge (ALJ). We will note the general areas of Boone's disagreement where relevant to our decision.

Boone was employed as a senior medical security officer at the Anne Klein Forensic Center (AKFC). AKFC is a long-term care facility providing treatment to patients with varying mental disabilities. Ward 6 of AKFC houses approximately twenty-five patients, some of whom have previously been convicted of a crime and were deemed unfit for release upon the completion of their prison term.

On March 7, 2005, at a approximately 6:00 p.m., Boone entered Ward 6, to which he was not assigned at the time. Boone contends that O.D., a patient in Ward 6, "physically and verbally assaulted" him, requiring Boone to employ an authorized physical restrain technique (PRT) to subdue O.D. The ALJ, having found that Boone was not credible, rejected Boone's factual assertions.

The ALJ found that as the patients were lining up to leave the ward to go to a rehabilitation session, Boone yelled at O.D. to "mind your own business." O.D. stuck his finger close to Boone's face, but did not make contact with it. Boone punched O.D. in the face two to three times before O.D. fell to the floor. The two wrestled on the floor and Boone continued to punch O.D. Boone and O.D. were separated by another AKFC security officer. After the altercation, blood was observed coming from O.D.'s mouth onto his lips. No blood was observed on Boone's face. Later that evening, O.D. was taken to the hospital to rule out any possible jaw problems. O.D. was diagnosed with facial trauma, facial contusion, and dental trauma illustrated by multiple loose teeth.

O.D. filed criminal assault charges against Boone in the Trenton Municipal Court on April 12, 2005. The Department of Human Services (DHS), which operates AKFC and was Boone's employer, requested that Boone, if convicted, be barred from future public employment. On September 29, 2005, Boone was found not guilty of assault.

The Department of Personnel (DOP) issued a preliminary notice of discipline to Boone on October 11, 2005. Boone appealed the notice and a departmental hearing was held on January 30, 2006. On February 16, 2006, the DOP, having determined that Boone physically abused a patient in violation of DHS Admin Order No. 4:08, supp.1, C-3 (1981), issued a final notice of discipline removing Boone from his employment.

Boone appealed his termination to the Board and the case was transferred to the Office of Administrative Law as a contested case. The ALJ held hearings on August 15, August 29, September 7, 2006, and February 8, 2007. In addition, the ALJ visited the AKFC to view the ...


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