February 2, 2010
IN THE MATTER OF ALI ELMAGHRABI, DEPARTMENT OF CORRECTIONS.
On appeal from the New Jersey Civil Service Commission, Docket No. CSC 2008-3006.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued December 14, 2009
Before Judges Lisa and Alvarez.
Appellant, Ali Elmaghrabi, appeals from the October 22, 2008 final decision of the Civil Service Commission (Commission). That decision adopted the September 8, 2008 decision of an administrative law judge (ALJ), which upheld the action of the Department of Corrections (DOC) ordering appellant removed from his civilian position as a food instructor with the DOC based upon charges of conduct unbecoming a public employee, engaging in financial transactions with his supervisor, and falsification of attendance records. Appellant argues:
I. THE INITIAL HEARING BELOW WAS NOT TIMELY, AND AS A RESULT, THE ENTIRE COMPLAINT SHOULD BE DISMISSED
II. REMOVAL WAS DOUBLE PUNISHMENT
III. THE ACTIONS BY THE DEPARTMENT OF CORRECTIONS AND THE LOWER TRIBUNALS' DECISIONS WHICH SUSTAINED THE ACTIONS WERE ARBITRARY, CAPRICIOUS AND LACKED FACTUAL SUPPORT
We reject these arguments and affirm.
In the administrative proceedings, appellant did not raise either of the first two arguments he now raises on appeal. Generally, unless an issue raised for the first time on appeal goes to the jurisdiction of the trial court or agency that made the decision under review or concerns matters of substantial public interest, an appellate court will not consider it. State v. Arthur, 184 N.J. 307, 327 (2005); Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). Appellant concedes that he did not raise these issues in the administrative proceedings, and he does not assert a jurisdictional defect. We reject appellant's contention that the issues are of substantial public interest and thus warrant appellate review. The issues pertain only to appellant, and the consequences of his actions under the unique factual circumstances presented in this case. We accordingly decline to consider Points I and II raised by appellant.
With respect to appellant's third argument, we note that most of the facts were stipulated, and appellant does not dispute that he is guilty of violating the rules as charged. His argument before us, as it was in the administrative proceedings, is that the sanction of termination was unduly harsh. He suggests that a suspension would have been a more appropriate sanction.
We set forth a brief summary of the facts. Appellant began his employment with the DOC on June 25, 2005, working as an instructor in the Food Service Department at Northern State Prison. His direct supervisor was Wendell Smith. By the end of 2005, appellant began a course of conduct in which he gave Smith a number of expensive gifts, such as jewelry and clothing, with a total value of more than $4500. Appellant also falsified time records, representing that he worked certain shifts he did not work and that he performed overtime work that he did not perform. Appellant did these things at the behest of Smith, who repeatedly threatened appellant with the loss of his job if he did not do them. The fraudulent time sheets were apparently filled out by Smith, and he apparently received the fraudulently-obtained money. Appellant provided conflicting testimony as to whether he was in physical fear of Smith or of inmates with whom Smith had a relationship. The ALJ rejected appellant's contention that he was in physical fear for his safety.
The DOC has acknowledged throughout these proceedings that Smith engaged in wrongful conduct with appellant and similar wrongful conduct with others working under his supervision. Other individuals complained to higher level supervisors and were able to get their shifts changed or otherwise avoid working under Smith. Appellant never complained. He was represented by the union and had civil service protections. However, he never informed anyone about Smith's conduct. This went on for two years, until the fraudulent time records were discovered in the summer of 2007.
The DOC has not disputed that Smith was culpable in these events. The DOC has represented to us in its appellate brief that Smith was also terminated in separate proceedings.
Upon his hire, appellant was subject to a two-year probationary period. Thus, he has contended all along that his job was not secure and he was intimidated and coerced by Smith and legitimately in fear of losing his job if he did not acquiesce in Smith's demands. For this reason, and also because of his contention, (rejected by the ALJ) that he was in physical fear for his safety, appellant argued that his sanctions should be substantially mitigated. He also sought mitigation because he had no prior disciplinary record. He argued that progressive discipline should apply, and, because this was his first offense, a suspension would be appropriate.
The ALJ rejected these arguments. She noted that while progressive levels of discipline are usually the preferred and measured response, when the employee's conduct is so egregious as to render him or her unfit for continued service, the principle of progressive discipline must give way to the public need. Relying on Carter v. Twp. of Bordentown, 191 N.J. 474 (2007), she "recognized that some disciplinary infractions are so serious that removal is appropriate notwithstanding a largely unblemished prior record." The ALJ weighed the mitigating factors urged by appellant against aggravating factors put forth by the DOC, namely appellant's lack of efforts to report Smith to higher management, the number of incidents making up the disciplinary charges, the fact that those incidents spanned almost his entire length of State employment, and his weakness of character at not being able to rebuff Smith's extortionist demands (which would have the capacity to jeopardize the safe and orderly running of a correctional facility).
The ALJ concluded as follows:
I agree with the Department's assessment that appellant has not shown himself to have the character or sense of responsibility to shield himself from the stresses and pressures of a correctional setting. If he can be persuaded to participate in such activities by a supervisor, what is to prevent him from succumbing to the entreaties of the inmate population? Accordingly, based on the totality of the record, including the seriousness of the offenses and the extended period of time during which they occurred without any attempt on appellant's part to report his supervisor, I CONCLUDE that the appellant has violated his duty to the public to be honest on the job and in actions relating to his employment, and in avoiding and/or reporting inappropriate financial transactions with his immediate supervisor. I CONCLUDE that the aggravating circumstances outweigh the mitigating circumstances and support the discipline imposed and that the removal of appellant from his position is appropriate under all the circumstances.
Upon its review of the complete record, including supplemental materials submitted after the ALJ issued her initial decision, the Commission agreed with the initial decision and adopted it, elaborating to some extent on the same rationale as expressed by the ALJ.
Our role in reviewing an agency decision is limited. In re Taylor, 158 N.J. 644, 656 (1999) (quoting Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 587 (1988)); Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). We must give deference to the decision, unless it is arbitrary, capricious, unsupported by substantial credible evidence in the record as a whole, or is in violation of express or implicit legislative policy. In re Distrib. of Liquid Assets, 168 N.J. 1, 10-11 (2001); Taylor, supra, 158 N.J. at 656-57; R & R Mktg., L.L.C. v. Brown-Forman Corp., 158 N.J. 170, 175 (1999) (citing Pub. Serv. Elec. & Gas Co. v. N.J. Dep't of Envtl. Prot., 101 N.J. 95, 103 (1985)); Karins v. City of Atl. City, 152 N.J. 532, 540 (1998); Brady, supra, 152 N.J. at 210-11; In re Petition of S.D., 399 N.J. Super. 107, 121 (App. Div. 2008) (citing In re Musick, 143 N.J. 206, 216 (1996)); Boardwalk Regency Corp. v. N.J. Casino Control Comm'n, 352 N.J. Super. 285, 300-01 (App. Div.), certif. denied, 174 N.J. 366 (2002). Accordingly, we must determine whether the agency's "'findings... could reasonably have been reached on sufficient credible evidence present in the record,' considering 'the proofs as a whole,' with due regard to the opportunity of the one who heard the witnesses to judge of their credibility." Close v. Kordulak Bros., 44 N.J. 589, 599 (1965) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)).
"[I]t is not our function 'to substitute [our] independent judgment for that of [an] administrative' agency, such as [the Commission], 'where there may exist a difference of opinion concerning the evidential persuasiveness of the relevant [proofs].'" In re Certificate of Need Granted to the Harborage, 300 N.J. Super. 363, 379 (App. Div. 1997) (quoting First Sav. & Loan Ass'n v. Howell, 87 N.J. Super. 318, 321-22 (App. Div. 1965), certif. denied, 49 N.J. 368 (1967)). Further, we should not "'weigh the evidence, determine the credibility of witnesses, draw inferences and conclusions from the evidence, or resolve conflicts therein.'" Ibid. (quoting De Vitis v. N.J. Racing Comm'n, 202 N.J. Super. 484, 489-90 (App. Div.), certif. denied, 102 N.J. 337 (1985)).
Applying this highly deferential standard, we are satisfied from our review of the record that the factual findings made by the Commission are well supported by substantial credible evidence in the record, and the decision is not arbitrary, capricious or unreasonable. We affirm substantially for the reasons expressed by the Commission in its October 22, 2008 final decision.
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