On appeal from a Final Administrative Decision of the Civil Service Commission, No. 2007-5012.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 23, 2010
Before Judges Wefing and Messano.
Jane Lyons, employed by the New Jersey Department of Transportation as a Senior Engineer, appeals from a Final Decision of the Civil Service Commission finding her guilty of one charge of insubordination and one charge of conduct unbecoming a public employee and imposing a five-day suspension for each charge. After reviewing the record in light of the contentions advanced on appeal, we affirm.
Four disciplinary charges were filed against appellant, all dating back to the years 2000 and 2001. There is no clear explanation in the record for the delay in prosecuting these charges, which were finally heard before an administrative law judge between October 2003 and January 2007. Following the conclusion of that hearing, the administrative law judge issued his findings of fact and conclusions of law, dismissing two charges (one alleging unauthorized absences and one alleging making a false report to a supervisor) and sustaining two charges. On the charge of insubordination, the administrative law judge recommended a five-day suspension; on the charge of conduct unbecoming, he recommended a one-day suspension. Lyons appealed to the Merit System Board.*fn1
In 2000 Lyons was assigned to supervise the construction by Robert Charles Enterprises, Inc. ("RCE") of a noise wall at Exit 19 on Route 295. During the course of the work, Lyons had a contentious relationship with RCE, and particularly with Joseph Daniel, RCE's liaison on the project. On March 13, 2000, Lyons became involved in a dispute with Daniel, who was pouring concrete into a caisson through a chute. Lyons was dissatisfied with the appearance of the concrete and told Daniel to stop the pour. He did not do so, and she repeated the instruction several times. When he still did not stop the pour, she picked up a nearby shovel to try to stop the pour; this did not completely obstruct the flow of concrete but merely slowed it down. She then put down the shovel and pushed the chute away from the caisson. The chute struck Daniel, knocking him off balance. He grabbed hold of the chute and pushed it away from himself. The chute struck appellant in the thigh. Although they disclaimed any injury immediately afterward, both later claimed they were injured in the incident. Appellant's conduct in this incident was the basis for the charge of conduct unbecoming a public employee.
The charge of insubordination was based upon a course of conduct summarized in a memorandum dated June 5, 2000, from Charles Young, the Department's Director of Construction. He noted that appellant failed to respond to her supervisor's two separate requests that she compile a list of issues with the contractor; that there were repeated instances of her failing to follow the chain of command; and that she had refused to answer questions Young had posed to her. He noted that she had "difficulty dealing with the often confrontational and subjective nature of construction management" and that she would become "combative and confrontational." He also wrote that she resisted "supervisory interaction if that intervention challenges or corrects her position."
The administrative law judge concluded the following with respect to the charge of insubordination:
[I]t is clear that Petitioner did not have the appropriate respect for her supervisors and, accordingly, did not follow their instructions. Many times Petitioner's supervisors requested Petitioner to provide documentation about absences, incidents with Daniels, grievances, etc. Petitioner either did not comply with these requests, or did so in an untimely and incomplete manner.
Petitioner did not appear credible in her defense of these charges. It was clear that she did not respect her supervisors' authority. Her testimony was consistent with many of her written responses to her supervisors that were untimely, incomplete or unresponsive.
By the time the administrative proceedings had concluded, Lyons had already served a fifteen-day and a three-day suspension for the two charges which were ultimately dismissed. Based upon that, the Board ruled that she was entitled to back pay, benefits and seniority lost as a result of that suspension together with counsel fees for services rendered in connection with those two items. She was given thirty days to submit an affidavit with respect to any income earned during the period of suspension and an affidavit with respect to counsel fees. Because she failed to submit an affidavit separating out counsel fees attributable to those suspensions, although given more than a year to do so, the Board ultimately issued a decision denying any counsel fees.
On appeal, she challenges the rulings upholding the disciplinary charges and the ultimate denial of counsel fees and raises the ...