On appeal from a Final Decision of the Merit System Board, DOP Docket No. 2008-4036.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 1, 2009
Before Judges Sapp-Peterson and Espinosa.
Petitioner Deborah Payton was employed in the Jersey City Tax Assessor's Office and charged with the responsibility of receiving money collected from members of the public and remitting such funds to the Treasury Department. In March 2005, another Jersey City employee, Lucien Taduran, received five one-dollar bills, photocopied the bills and handed them along with a receipt to Payton for disposition. Although she received the money during regular business hours, she took the money home rather than remit the funds to Treasury. Her employment was suspended on the following day when she was confronted by her supervisor and did not have either the cash or the receipt with her.
Payton's employment was terminated after a departmental hearing in which charges of conduct unbecoming a public employee, N.J.A.C. 4A:2-2.3(a)(6), and neglect of duty, N.J.A.C. 4A:2-2.3(a)(7) were sustained. She appealed the matter to the Merit System Board (the Board) which, in turn, referred the matter to the Office of Administrative Law as a contested case. After conducting a hearing, the Administrative Law Judge (ALJ) found that the appointing authority had sustained the charges by the preponderance of evidence and ordered the dismissal of Payton's appeal with prejudice.
The Board issued a final decision in February 2007. Although the decision indicated that the Board was adopting the ALJ's findings of fact, the Board concluded that the facts did not support the charge of conduct unbecoming a public employee or the sanction of removal. The Board reduced the penalty from termination to a five-day suspension and further directed that Payton be awarded counsel fees. The appointing authority appealed and, in an unpublished opinion, we reversed the finding that the charge of conduct unbecoming a public employee was not sustained. In re Payton, No. A-3571-06T2 (App. Div. Apr. 22, 2008). In addition, we remanded the matter to the Board for reconsideration of the penalty. Ibid.
Upon remand, the Board again reduced the penalty from termination, this time to a thirty-day suspension. The appointing authority appealed, arguing that the Board was arbitrary, capricious and unreasonable in failing to sustain Payton's termination. We reverse again and reinstate the sanction of termination.
Our role in reviewing the decision of the Board is limited. In the absence of a "a clear showing that it is arbitrary, capricious, unreasonable or not supported by credible evidence in the record as a whole[,]" the decision will be sustained. Klusaritz v. Cape May County, 387 N.J. Super. 305, 313 (App. Div. 2006); Brady v. Bd. of Review, 152 N.J. 197, 210-11 (1997); Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980); However, our constitutional authority "cannot be relegated to a mere rubber-stamp of agency action." Klusaritz, supra, 387 N.J. Super. at 315. We are bound to defer to the Board's findings of fact "when they could reasonably be made considering the proofs as a whole and with due regard to the opportunity of the one who heard the testimony to assess credibility." Ibid. (emphasis added). In this case, it was the ALJ, and not the Board, who had the opportunity to hear testimony and assess credibility. Therefore, the Board was "bound by the credibility determinations of the ALJ unless arbitrary, capricious or unreasonable." Ibid. (citing Cavalieri v. Bd. of Trs., 368 N.J. Super. 527, 533-34 (App. Div. 2004)). Significantly, the Board has not identified any credibility determinations or findings of fact of the ALJ as arbitrary, capricious or unreasonable.
It was undisputed that Payton received cash during the course of the day that should have been remitted to the Treasury and that she took it home rather than disposing of it properly. Payton claimed that she had simply forgotten she had the cash in her possession. In other words, her position was that she was only guilty of an act of negligence rather than intentional misconduct. Therefore, her intent was the crucial issue to be resolved in determining what sanction, if any, was warranted here.
As the ALJ observed, the determination of this issue turned on the credibility of the witnesses. The ALJ provided background for how her assessment of credibility affected her conclusions, noting that a fact finder is free to . . . reject the testimony of a witness . . . when it is contrary to circumstances given in evidence or contains inherent improbabilities or contradictions which alone or in connection with other circumstances in evidence excite suspicion as to its truth. . . . and may also reject testimony when 'it is inconsistent with other testimony or with common experience' or 'overborne' by the testimony of other witnesses. [Citations omitted.]
Finding Taduran's testimony credible, the ALJ accepted that the photocopies preserved by him accurately reflected the serial numbers of the bills he gave to Payton. The ALJ noted, "When the cash was initially given to petitioner, she claimed to have folded it along with the receipt and placed it in her back pocket." The ALJ reasonably inferred that if, as Payton claimed, she had simply "forgotten that the folded receipt and cash were in her back pocket, she would have returned the precise bills entrusted to her . . . ." This was, in fact, what Payton testified had occurred. She stated that she had retained the receipt and the five bills intact and that at the March 3, 2005 hearing she delivered the same five one-dollar bills folded in the receipt that she had received from Taduran. This was an apparent attempt to bolster her claim of forgetfulness by representing that the cash and receipt were being returned, untouched. Her attempt failed, however, since a comparison of the serial numbers showed that this was not the case. Payton did not rebut this evidence.
The evidence therefore fully supported the ALJ's determination that Payton's taking of the cash was not an accidental and innocent act of forgetfulness:
While it may have been plausible that petitioner had forgotten about the cash as she claimed, it became no longer plausible when the cash she presented lacked the same ...