September 29, 2009
IN THE MATTER OF WILLIAM MALAYTER, TOWNSHIP OF JACKSON.
On appeal from a Final Administrative Decision of the Merit System Board, Docket No. 2006-2201.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 14, 2009
Before Judges Baxter and Alvarez.
William Malayter, a public employee, appeals from a December 21, 2007 final decision of the Merit System Board (Board) in which the Board rejected an administrative law judge's (ALJ) determination of the appropriate penalty for Malayter's misconduct. In so doing, the Board reinstated Malayter's removal from office, which the ALJ had reduced to a 180-day suspension. In light of the egregious nature of Malayter's conduct, especially when viewed in the context of a prior similar incident, we reject Malayter's claim that the Board's reinstatement of the sanction of removal was arbitrary and capricious. We affirm.
Malayter began his employment as the plumbing subcode official for the Township of Jackson in 1990. His prior disciplinary history includes: 1) an April 18, 2002 official reprimand for defaulting on his obligation to leave written notices of violations at properties that failed inspection; 2) a May 29, 2002 one-day suspension resulting from a failure to leave inspection stickers after completing inspections; and 3) major discipline, consisting of a thirty-day suspension, imposed for conduct unbecoming a public employee after he removed his clothes and danced with a naked female at a holiday party attended by his fellow employees.
The present appeal concerns three charges the Township filed against Malayter in a Preliminary Notice of Disciplinary Action (PNDA) served on September 15, 2004. The first charge stemmed from Malayter's failure to place a telephone call to the owner of a local pizzeria on June 11, 2004 to discuss a plumbing inspection after his supervisor ordered him to do so. He was charged with incompetence, inefficiency, or failure to perform duties, N.J.A.C. 4A:2-2.3(a)(1), and was suspended for forty-five working days. In the second incident, Malayter was charged with the same violations for his failure to document his findings in connection with plumbing violations he observed at a residence on Jackson Mills Road on August 18, 2004. For that violation, the Township imposed the sanction of removal. The third incident resulted from a charge of conduct unbecoming a public employee, N.J.A.C. 4A:2-2.3(a)(6), when on September 9, 2004, while conducting a rough plumbing inspection at a home on Nottingham Way, Malayter informed the builder's representative that he had "to take a piss," whereupon he opened a window and urinated out the window. The Township imposed the sanction of removal. Following a departmental hearing, the Township served Malayter with a final notice of disciplinary hearing on January 14, 2005 sustaining the charges and upholding the sanction of removal from office.
On Malayter's appeal to the Office of Administrative Law, the ALJ conducted hearings over a three-day period and heard testimony from seven witnesses, including Malayter. In that hearing, Malayter did not deny that he urinated out the window of the home being inspected. The builder's representative testified that there were two bathrooms in the construction trailer that were used "every day" by public officials coming in to perform inspections. He also testified that he and Malayter spent approximately twenty minutes in the construction trailer reviewing the block and lot numbers for the inspections before proceeding to the first home that Malayter would be inspecting, which was the one where he engaged in the conduct in question.
In addition, there were several outdoor portable toilets in the vicinity of the homes under construction. The builder's representative explained that, while the homes immediately adjacent to the one in question were not occupied on September 9, 2004, other homes within the development were occupied at that time, a recreation facility across the street was open for use, and prospective purchasers frequently came in and out of homes that were under construction.
After a thorough review of the evidentiary record before him, the ALJ concluded that the Township had proven all three of the charges. Nonetheless, the ALJ questioned the "motivation" of the Township officials who initiated the charges, concluding that Malayter's principal accusers were biased against him. The ALJ observed that one of the witnesses benefited from testifying against Malayter, because once Malayter was removed from office, the witness was promoted into Malayter's former position of plumbing subcode official. Moreover, the ALJ commented that the three charges at issue "could be considered de minimis or technical violations" were it not for Malayter's history of disciplinary infractions.
Ultimately, the ALJ concluded that the instant charges represented "an overzealous and hypercritical prosecution" on the part of the Township and its officials. For that reason, even though the ALJ concluded that the Township had carried its burden of proof on all three charges, he reduced the sanction on two of them. In particular, for Malayter's failure to record his findings on the Jackson Mills Road property, the ALJ reduced the removal from office to a ninety-day suspension. For Malayter urinating out of the window, the ALJ reduced the removal to a 180-day suspension.
The Township appealed the ALJ's decision to the Board, which, after an independent evaluation of the record, accepted the ALJ's findings of fact and his recommendation to uphold the forty-five working day suspension for the June 11, 2004 incident involving Malayter's failure to make the phone call ordered by his supervisor. However, the Board rejected the ALJ's recommendation to modify the two removal sanctions to ninety-day and 180-day suspensions. Instead, the Board reinstated the removal that the Township had previously imposed.
The Board acknowledged that an ALJ, who has the benefit of hearing and seeing the witnesses, is generally in a better position to determine the credibility and veracity of the witnesses. The Board determined, however, that because the ALJ had chosen to sustain the charges and had agreed with the Township's conclusion that Malayter was guilty of the three violations, the ALJ's misgivings concerning the Township witnesses' credibility was of little, if any, remaining significance. Noting that its own review of the proper penalty was de novo, the Board observed that "where the underlying conduct is of an egregious nature, the imposition of a penalty up to and including removal is appropriate." In rejecting the ALJ's determination that only a 180-day suspension was the appropriate penalty for the urinating incident, the Board reasoned:
[Malayter] urinated out of a window of a building under construction, in front of a representative of the construction company, when he was performing official duties in the name of the appointing authority. This Board finds that this type of behavior is totally egregious and worthy of a severe sanction. Moreover, . . . [Malayter] clearly has a history of inappropriate behavior stemming back to a December 12, 2001 incident at a "pre-Christmas party" where he was suspended for 30 days for removing his clothes, dancing nude, as well partaking in other sexually suggestive inappropriate conduct, with a nude female.
The public expects its servants to conduct its business in a manner that does not offend publicly[-]accepted standards of decency. Thus, while there may not be a significant line of Board cases dealing with disciplinary matters involving public servants urinating at construction sites in places other than a restroom facility, it is fair to say that the members of the public expect that they should not be exposed to a supervisory municipal official relieving himself in the course of performing official duties. This type of behavior is not only crude and offensive but is indicative of [Malayter's] inability to conduct himself in a professional manner. . . . Therefore, given [Malayter's] prior disciplinary history, and the egregiousness of his conduct, it is clear that a severe penalty is warranted in this situation. Accordingly, the Board finds that removal is the appropriate penalty.
On appeal, Malayter argues that because the window out of which he urinated was in the rear of the house, which faced a wooded area, and that the house was five to six houses removed from the nearest occupied residence, the sanction of removal from office imposed by the Township and the Board was "excessive," "unduly harsh," and was motivated only by petty antagonism within the Township construction office. He urges us to reinstate the 180-day suspension ordered by the ALJ.
While the ability of an agency to reverse an ALJ's factual findings is severely circumscribed, Cavalieri v. Bd. of Trs., 368 N.J. Super. 527, 534 (App. Div. 2004), the Board's determination of the appropriate penalty is de novo. Town of W. New York v. Bock, 38 N.J. 500, 519 (1962). Thus, because the Board's rejection of the ALJ's decision was confined to a modification of the penalty the ALJ had imposed, the Board owed no deference to the ALJ's determination on that subject.
Our scope of review of the final decisions of an administrative agency is narrow. In re Carter, 191 N.J. 474, 482 (2007). We will not "overturn such a decision 'in the absence of a showing that it was arbitrary, capricious, or unreasonable, . . . that it lacked fair support in the evidence,'" was violative of express or implied legislative policies, or in applying the legislative policies to the facts, the agency reached a conclusion that could not reasonably have been made on the record before it. Ibid. (quoting Campbell v. Dep't of Civil Serv., 186 N.J. 5, 15-16 (2006)). Moreover, if substantial evidence supports the agency's decision, we will not substitute our judgment for the agency's even though we might have reached a different result. Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992). Where, as here, we are presented with a claim that the sanction imposed was excessive, we are obliged to uphold the sanction unless it is "'so disproportionate to the offense, in the light of all the circumstances, as to be shocking to one's sense of fairness.'" Carter, supra, 191 N.J. at 484 (quoting In re Polk License Revocation, 90 N.J. 550, 578 (1982)).
Viewed in light of these principles and our deferential standard of review, Malayter's claims are unpersuasive. As a preliminary matter, we note that although Malayter attempted to assert at oral argument that the builder's representative was a liar whose testimony should not be believed, we agree with the Township that such contentions should not be considered because the arguments contained in Malayter's brief are confined to his claim that the sanction was excessive. Because he has not challenged on appeal the adequacy of the Board's and the ALJ's findings of fact, he is foreclosed from raising them during appellate oral argument. Almog v. Israel Travel Advisory Serv., Inc., 298 N.J. Super. 145, 155 (App. Div. 1997), appeal dismissed, 152 N.J. 361 (1998). Consequently, our analysis of Malayter's appeal will be confined to a determination of whether the Board's reinstatement of the sanction of removal was arbitrary or capricious or otherwise impermissible.
The Board cited two principal reasons in support of its decision. First, the extremely reprehensible nature of the conduct at issue would have warranted removal even in the absence of a prior disciplinary record. Second, Malayter's history of a major disciplinary action that was -- like the urinating incident -- imposed for conduct unbecoming a public employee demonstrates that Malayter is unable to conform his behavior to accepted standards of decency that the public has a right to expect of public employees.
The Board's determination that some disciplinary infractions are so serious that removal is appropriate even in the absence of a prior disciplinary record is correct. Carter, supra, 191 N.J. at 484. We recognize that the Court's decision in Carter was informed by its recognition that where discipline of police and corrections officers is involved, "public safety concerns" have a legitimate bearing upon the degree of the sanction and may warrant dismissal for conduct that might not justify such a result in a different context. Id. at 485. We do not, however, interpret the Court's holding in Carter as confined to only the law enforcement and corrections context. Ultimately, we need not resolve that issue because Malayter cannot take refuge in a "largely unblemished" prior record, which brings us to the second of the Board's two rationales.
Specifically, this is not the first time that Malayter has been disciplined for conduct unbecoming a public employee. As we have discussed, less than three years before he urinated out of the window while conducting a plumbing inspection, he had been sanctioned for vulgar and socially unacceptable conduct when he danced nude at a holiday party attended by fellow employees. One need not be hypersensitive or exceptionally prudish to be offended by the conduct of a public official who, in the course of performing his official responsibilities, urinates out of an open window. That Malayter would engage in such indecent conduct, less than three years after he had been sanctioned for a similar glaring violation of social norms, supports the Board's conclusion that, unless removed from office, Malayter will continue to engage in similar egregious conduct because he lacks the ability to conform his behavior to the standards of conduct the public rightfully expects of its employees. We cannot say that the Board's conclusion on that score was arbitrary, capricious or unsupported by the record.
We reject Malayter's contention that because the house in question was unoccupied and situated five or six houses away from the nearest occupied residence, the sanction of removal was excessive, and we should therefore overturn the Board's decision and reinstate the ALJ's 180-day suspension. As the Township has correctly observed, this was not an isolated area. A recreational facility was in use across the street, and numerous prospective buyers entered the unoccupied homes adjacent to the residence in question to evaluate such homes for potential purchase. Under those circumstances, Malayter can take no refuge in the unoccupied status of the house where the incident occurred.
We thus reject his contention that the sanction of removal was harsh, excessive and unwarranted. In light of our determination that the sanction of removal was appropriate for that incident, we need not determine whether the Board correctly rejected the ALJ's reduction of the sanction imposed for the infractions at the home on Jackson Mills Road.
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