On appeal from a Final Administrative Decision of the New Jersey Merit System Board, DOP Docket No. 2007-826.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Stern and Parker.
Juan Melendez, a Hudson County Corrections Officer, appeals from a final administrative determination of the Merit System Board (MSB) imposing a fifteen-day suspension for neglect of duty and other sufficient cause warranting discipline, N.J.A.C. 4A:2-2.3(a)(7)(11).*fn1 The MSB adopted the initial determination of an Administrative Law Judge on a remand following his first determination that the suspension should only be for three days following Hudson County's suspension of thirty days. On this appeal Melendez argues that
POINT I. The decision of the Merit System Board upholding the charges of neglect of duty and other sufficient cause is not supported by credible evidence in the record.
POINT II. The penalty of a fifteen day suspension is at odds with the concept of progressive discipline and appellant's disciplinary history.
POINT III. Appellant is entitled to attorney's fees based on having prevailed on all or substantially all of the primary issues.
In essence, appellant seeks reversal of "all charges against him and [the award] of back pay and attorney's fees."
The testimony before the ALJ revealed that Sgt. Kevin Orlik reported, and testified, that appellant was asleep at his post in a trailer annexed to the jail on March 19, 2006 when Orlik and other officers arrived to conduct a search of the cells. In his testimony Orlik testified that when he entered the trailer he "saw Officer Melendez reclined back in a chair with a roll of toilet paper as a pillow or a cushion behind his neck," "his eyes were closed," and he was "motionless" as he was observed "for approximately a minute to two minutes" until other officers entered the trailer and started to make noise. Appellant testified that he wasn't sleeping and told that to Orlik when he directed appellant "to write a report on why [he] was sleeping." Appellant challenged Orlik's credibility by noting that his written report omitted details embodied in his testimony, a fact that was acknowledged by Orlik. There was also testimony from Orlik and Hudson County Corrections Officer Captain William McCleary as well as appellant about the practice of standing when a superior officer enters the room. Appellant did not do so on the night in question, and testified that it wasn't a "regular routine" and he generally did not do so. Although the failure to stand was not itself a basis for discipline it was determined to be relevant to the issue of "attentiveness" at the time, as well as to the ALJ's finding that the inattentive conduct was a "sufficient cause" for the three-day suspension he initially imposed.
On the remand, despite making credibility determinations against Orlik because of the failure to include certain details in his written report, the ALJ found neglect of duty and "other sufficient cause" for the discipline, and found that "the "failure to stand and acknowledge Sgt. Orlik when he entered the trailer to constitute being inattentive."
In its opinion, the MSB agreed with appellant that "his failure to stand was not a specific infraction or charge," but concluded that it constituted "evidence that he was inattentive, which he was charged with," and "[i]t was the appellant's inattentiveness that constituted his neglect of duty as it could have resulted in harm to the inmates."
We must affirm the agency's determination when supported by sufficient evidence in the record. In re Herrmann, 192 N.J. 19, 27-29 (2007); Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992); Henry v. Rahway State Prison, 81 N.J. 571, 580 (1980). As we have said in the context of prison discipline:
Our role on review is limited. Our function is to determine whether the administrative action was arbitrary, capricious or unreasonable. We will only decide whether the findings could reasonably have been reached on the credible evidence in the record, considering the proofs as a whole. We cannot substitute our judgment for that of the agency. We accord to the agency's exercise of its statutorily delegated responsibilities a strong presumption of reasonableness. The burden of showing the agency's action was arbitrary, unreasonable upon capricious rests on the ...