On appeal from a Final Administrative Decision of the Merit System Board, DOP No. 2007-3236.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing and Grall.
This is an employee disciplinary matter. Camden County Municipal Utilities Authority ("Authority") appeals from the December 19, 2007, Decision of the Merit System Board accepting and adopting the Finding of Facts entered by an administrative law judge ("ALJ") following a hearing but declining to accept the recommendation of the ALJ that the employee be removed.*fn1 The Board modified the penalty to a four-month suspension. After reviewing the record in light of the contentions advanced on appeal, we reverse.
The Authority is a regional authority, responsible for the treatment of waste water throughout Camden County. It has twenty-five pumping stations throughout the county and sixteen metering stations, all linked by more than one hundred miles of pipe line to a central treatment plant.
At the time of the incident giving rise to this appeal, Anthony Lamont Stallworth had been employed by the Authority for seventeen years. His position was that of unlicensed pump station operator, and as part of his job he was provided with a truck to travel between pump stations and pipe lines. The truck was marked as an Authority vehicle and equipped with a navigation system that can be monitored by the Authority. During his work day, Stallworth was allowed thirty minutes for lunch and a fifteen-minute break in the morning and again in the afternoon.
On November 15, 2006, Stallworth was assigned to work at the Bellmawr pumping station. He picked up an Authority truck at its main station and drove to Bellmawr station. The records of the truck's navigation system showed that it arrived at the Bellmawr station at 7:53:27 a.m. and left the Bellmawr station at 8:03:09 a.m. and arrived at a nearby convenience store, One Stop Shop, very shortly thereafter. It remained at the store for more than an hour and a quarter; the truck was not restarted until 9:19:37 a.m., and it arrived back at the Bellmawr station shortly thereafter.
Stallworth was served with disciplinary charges, alleging a violation of N.J.A.C. 4A:2-2.3(a)6, conduct unbecoming a public employee; N.J.A.C. 4A:2-2.3(a)8, misuse of public property, including motor vehicles; and N.J.A.C. 4A:2-2.3(a)11, other sufficient cause. He was also charged with violating a number of Authority rules, including Critical Rule 36-2(I), falsification of official records; Critical Rule 36-2(L), leaving the work area without permission; and Critical Rule 36-2(Q), personal use of an Authority vehicle. Based upon the nature of these charges, and Stallworth's disciplinary history, the Authority sought his removal.
A two-day hearing was held before an ALJ. At that hearing, Stallworth testified that he suffers from diabetes and tries to eat in the morning before taking his medication. He admitted he had never informed any of his current supervisors of this. He said that he does not take lunch and therefore takes all of his breaks at one time and had never had a problem with a supervisor for doing so.
He said that he left the Bellmawr station to go to the nearby One Stop Shop but did not tell his co-worker he was leaving. He said he ate two sandwiches at the store, played the lottery and talked with several people who were there. He did not keep track of the time but believed that occupied approximately thirty-five minutes. He said he returned to the truck and learned he did not have the keys. He then went back to the store and found that when he played the lottery, his keys had fallen near the cash register. He did not try to reach for them because he did not want the owner to think he was trying to steal from the register. He thus waited a period of time for the owner to return his keys. He said he did not call his supervisor on his cell phone because he did not have the supervisor's number and could not use the phone in the truck without the keys.
When he arrived back at the station, his supervisor questioned him about his prolonged absence. Stallworth admitted in his testimony that he did not tell his supervisor about his diabetes. His supervisor testified that Stallworth's response on being questioned about his disappearance was "Yeah, whatever".
When Stallworth was asked at the hearing why he did not tell his co-worker he was leaving to get something to eat, he responded that he did not have to answer to him.
The ALJ rejected as not credible Stallworth's explanation that he combined his morning and lunch breaks. He found that Stallworth had violated Critical Rule 36.2(L) by leaving the work area without permission and Critical Rule 36.2(Q) because he was in possession of the Authority's vehicle for more than his fifteen-minute allotted break. The charge of violating Critical Rule 36.2(I) related to Stallworth not having adjusted his time record for this absence. The ALJ ...