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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...