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In re Caruso

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


April 15, 2009

IN THE MATTER OF CORNELIUS CARUSO

On appeal from a Final Administrative Decision of the New Jersey Merit System Board, Docket No. 2007-3526.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 28, 2009

Before Judges Payne and Waugh.

Appellant Cornelius Caruso appeals his termination as a police officer in the City of Orange (City) Police Department (Department). We affirm.

I.

We glean the following facts from the record. Caruso became a police officer in 2000. In 2005, he began to experience serious problems related to his use of alcohol. He voluntarily entered a program at the Carrier Clinic in December 2005. When he did so, he failed to follow the Department's requirement that he notify the communications supervisor and apply for a leave of absence. However, no charges were filed with respect to that omission.

Caruso left the Carrier Clinic in March 2006. He was found by the Department to be fit for duty and returned to work on April 1, 2006. Caruso was instructed to make periodic reports concerning his recovery, which instruction was confirmed in a letter from the City's attorney to Caruso's attorney. No such periodic reports were ever made.

The Department permits fifteen days of sick leave per year. The Department assessed Caruso for use of 2006 sick leave only during the period from January 1 to January 10, 2006. The period from January 11 to March 31, 2006, was charged as a combination of administrative and compensatory leave. After Caruso's return to duty in April, he went out on sick leave from April 6 to April 18; May 10 to July 7; October 25 to November 4; and December 12 to the end of 2006. Consequently, by December 2006, Caruso had taken significantly more sick leave than was permitted by the Department.

Caruso left work on December 12, 2006, because of an eye infection. However, according to Caruso, his problem with alcohol use returned in December 2006. On December 22, 2006, Caruso left his home and traveled to Hazelden, a rehabilitation clinic located in Minnesota. He again failed to notify the communications supervisor, although others apparently notified one of his superiors who subsequently contacted Caruso and arranged for him to surrender his service weapon. Caruso also failed to complete the required forms for a leave of absence.

The City filed formal disciplinary charges against Caruso on January 18, 2007. The disciplinary charges were as follows:

1. Performance of Duty 4:1.1

All employees shall promptly perform their duties as required or directed by law, department rule, policy or directive, or by lawful order of a superior officer. Specifications:

1. On December 22, 2006 Officer Cornelius Caruso entered into a substance abuse program and is unavailable to perform the functions of a police officer. As of January 17, 2007 Officer Caruso is still in this facility and is still physically unable to perform the duties of a police officer.

2. On December 22, 2006 Officer Caruso upon entering into a substance abuse treatment center has become unable to carry a firearm therefore rendering Officer Caruso physically unable to perform the functions of a police officer.

2. Insubordination 4:1.6

Employees shall not:

B. Fail or refuse to obey a lawful order given by a supervisor.

Specifications

1. On March 10, 2006 Officer Caruso was ordered to supply the Orange Police Department with monthly reports on his progress and attendance in a program to assist Officer Caruso with a Substance Abuse problem.

3. Obedience to Laws and Rules

Employees shall obey all laws, ordinances, rules, directives, policies, and procedures of the department.

Specifications

1. On December 22, 2006 Officer Caruso left his place of recuperation from an eye infection and failed to notify the communications supervisor in violation of GO-04-05 letter B Leaving Home during Sick Leave.

2. On December 22, 2006 Officer Caruso has become injured or sick as the result of a vicious habit or practice in violation of GO-0405 Letter F 1(D).

3. On December 22, 2006 Officer Caruso left his residence and went into treatment center that was to require an extended leave, Officer Caruso did not complete the extended leave form as proscribed in Exe.Memo 32-2006 leave request form, and also a violation of the City of Orange Township Handbook that Officer Caruso signed for on October 17, 2006.

4. On December 22, 2006 Officer Caruso left the state of New Jersey on an extended leave without first receiving permission to do so in violation of Exe.Memo 32-2006 and City of Orange Handbook rule 23:1-7.b.

4. Abuse of Sick Leave

Employees who take sick leave in violation of department policy shall be subject to disciplinary action.

Specification

1. From March 27, 2006 through December 31, 2006 Officer Caruso used at least fifty-five sick days.

Caruso left Hazelden and returned to New Jersey on January 19, 2007. He started intensive outpatient aftercare on January 23, 2007, which required his attendance at a program for four hours a day, four days per week, as well as attendance at Alcoholics Anonymous sessions.

On January 25, 2007, Caruso attended a meeting at the Department, at which time he was served with the notice of discipline and preliminarily suspended. He has conceded that he was not then fit to return to duty, but believes that he would have been able to return to duty by mid-March 2007. However, he was terminated pursuant to a final notice of disciplinary action on February 12, 2007.

Caruso appealed to the Merit System Board (Board), which referred the matter to the Office of Administrative Law (OAL) as a contested case. A hearing was held before an administrative law judge (ALJ) in August 2007. The ALJ's initial decision upheld Caruso's removal, sustaining three of the four charges in the City's notice of discipline. The ALJ did not sustain the insubordination charge because the instruction that Caruso make periodic reports following his release from the Carrier Clinic was made by the City's attorney and not one of Caruso's supervisory officers. The Board adopted the ALJ's decision and upheld the termination. This appeal followed.

II.

On appeal, Caruso argues that the Board's decision "was not based on credible evidence in the record and was not consistent with case law." We disagree.

The Supreme Court summarized an appellate court's scope of review of administrative agency decisions as follows:

The scope of that review is limited. See In re Carter, 191 N.J. 474, 482 (2007). An administrative agency's final quasi-judicial decision will be sustained unless there is a clear showing that it is arbitrary, capricious, or unreasonable, or that it lacks fair support in the record. See Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963). Three channels of inquiry inform the appellate review function:

(1) whether the agency's action violates express or implied legislative policies, that is, did the agency follow the law; (2) whether the record contains substantial evidence to support the findings on which the agency based its action; and (3) whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors.

[Mazza v. Bd. of Trs., 143 N.J. 22, 25 (1995) (citing Campbell, supra, 39 N.J. at 562).]

When an agency's decision meets those criteria, then a court owes substantial deference to the agency's expertise and superior knowledge of a particular field.

See In re License Issued to Zahl, 186 N.J. 341, 353 (2006); Brady v. Bd. of Review, 152 N.J. 197, 210 (1997); Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992). Deference controls even if the court would have reached a different result in the first instance. See In re Taylor, 158 N.J. 644, 657 (1999). [In re Herrmann, 192 N.J. 19, 27-28 (2006).]

Our role in reviewing the factual findings of an administrative agency is similarly limited. In re Taylor, 158 N.J. 644, 656 (1999); Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). "If the Board's factual findings are supported 'by sufficient credible evidence, courts are obliged to accept them.'" Brady, supra, 152 N.J. at 210 (citation omitted). We may not vacate an agency's determination because of doubts as to its wisdom or because the record may support more than one result. De Vitis v. New Jersey Racing Comm'n, 202 N.J. Super. 484, 489-90 (App. Div.), certif. denied, 102 N.J. 337 (1985). Finally, "it is not for [the courts] or the agency head to disturb [a] credibility determination, made after due consideration of the witnesses' testimony and demeanor during the hearing." H.K. v. State, 184 N.J. 367, 384 (2005). See also Taylor, supra, 158 N.J. at 656.

We have considered each of Caruso's arguments in light of the record and applicable law. We are satisfied that the arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Nevertheless, we add the following comments.

Caruso contends that the Board failed to follow its own decision in Arose v. Township of Little Egg Harbor Police Department, 96 N.J.A.R.2d 490 (CSV). In that case, a police officer, who had been involved in an automobile accident, was charged and found guilty of driving under the influence of alcohol. He was also "continuously absent and incapable of performing his duties and failed to return to work following the denial of a leave of absence request." Id. at 498. He was terminated and the termination was appealed to the Board. The Board adopted most of the ALJ's decision, but found that the police department had been unreasonable in refusing the officer's request for administrative leave to participate in an alcohol treatment program.

Thus, following its review of this matter, the [Board] upholds only the charge of conduct unbecoming a public employee based on appellant's driving while under the influence of alcohol. While this infraction warrants a severe disciplinary penalty, termination from employment is not justified under the circumstances of this matter. At the hearing before the OAL, appellant presented evidence that he suffers from alcoholism and argued that this condition constitutes a disability which entitles him to the protections of the Law Against Discrimination, N.J.S.A. 10:5-1 [to -49]. In In the Matter of Daniel Cahill, 245 N.J. Super. 397 (App. Div. 1991), the Court addressed the issue of an employer's obligation to provide a reasonable accommodation to an employee suffering from alcoholism or drug addiction and stated that an employer should afford an opportunity for rehabilitation to an employee handicapped by substance abuse. Such an accommodation is appropriate in this case. As the record indicates that appellant was undergoing treatment for his alcoholism, the Board concludes that appellant should be permitted the opportunity for rehabilitation before disciplinary action resulting in removal is imposed. [Ibid.]

Consequently, the Board overturned the termination and imposed a six-month suspension for conduct unbecoming an officer.

The facts in Arose are quite different from the facts now before us. Arose's employer refused his request for a leave of absence to pursue an alcohol treatment program. In contrast, the Department allowed Caruso administrative and compensatory leave while he was in the Carrier Clinic for rehabilitative treatment in early 2006. Consequently, the Department actually "permitted [Caruso] the opportunity for rehabilitation before disciplinary action resulting in removal [was] imposed," as the Board required in Arose. The record does not reflect that Caruso specifically requested a second leave of absence for rehabilitative purposes, nor would the Department's refusal to grant such a second request have been unreasonable under the circumstances.

The Board's decision in Arose relies on our opinion in In the Matter of Daniel Cahill, 245 N.J. Super. 397 (App. Div. 1991). Cahill stands for the proposition that "where feasible an employer should afford an opportunity for rehabilitation to an employee handicapped by substance abuse." Id. at 401. We are satisfied that the City complied with the requirements of Cahill and Arose when it permitted Caruso to take the leave of absence for the Carrier Clinic.

In addition, Caruso used significantly more sick leave during 2006 than he was allowed without including the time he was seeking alcohol treatment in January and December of that year. Caruso does not relate those other absences to his problem with alcohol abuse. In fact, his factual position is that the problem did not return until December 2006.

Caruso also argues that the termination was an excessive penalty, especially in light of his prior record of relatively minor discipline. Caruso had two prior instances of discipline. One was a three-day suspension arising out of charges related to "performance of duty." The other was an oral reprimand for failure to appear in court on a subpoena.

An employee's "prior disciplinary record [is] 'inherently relevant' to determining an appropriate penalty" for an offense. In re Carter, 191 N.J. 474, 483 (2007) (citation ommitted). However, the Supreme Court has "recognized that some disciplinary infractions are so serious that removal is appropriate notwithstanding a largely unblemished prior record." Id. at 484.

Our review of administrative sanctions is limited to determining "'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. Bd. of Educ., 313 N.E.2d 321, 327 (N.Y. 1974)). "The threshold of 'shocking' the court's sense of fairness is a difficult one, not met whenever the court would have reached a different result." In re Herrmann, 192 N.J. 19, 29 (2007). Progressive discipline need not even be considered when "the misconduct is severe, when it is unbecoming to the employee's position or renders the employee unsuitable for continuation in the position, or when application of the principle would be contrary to the public interest." Id. at 33.

Based upon the record before us, we find no basis to overturn the City's decision that termination was an appropriate penalty, which decision was upheld by the Board.

III.

In summary, we affirm the Merit System Board essentially for the reasons set forth in its written decision, as amplified above.

Affirmed.

20090415

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