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In re Elmaghrabi

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.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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


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