May 4, 2010
IN THE MATTER OF JOHN LENHARDT.
On appeal from a Final Administrative Action of the New Jersey Civil Service Commission.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 21 2010
Before Judges J. N. Harris and Newman.
Appellant John Lenhardt, a fire captain employed by the Hamilton Township Fire District #2, seeks our review of a final administrative action of the Civil Service Commission (Commission) imposing a forty-five day suspension. We affirm.
On May 1, 2007, Captain Lenhardt was aboard a fire truck returning from a call with fellow firefighters John Burton, Ray Krajesovics and volunteer firefighter Jarred Pierson. During that time, Captain Lenhardt told Pierson that he (Pierson) was volunteering himself out of a paid firefighter job by responding to calls at night. Captain Lenhardt essentially stated that if Pierson wanted to keep his call response percentage up, he ought to respond to day calls instead.
Concerned about the implications of these comments, Pierson ultimately mentioned them to a fire commissioner. As a result, on June 9, 2007, Captain Lenhardt called Pierson into his office and shouted words, essentially accusing Pierson of being a crybaby. Captain Lenhardt then angrily called firefighter Pierson a "pussy" and avowed that he would not give Pierson any sort of leniency like he had in the past.
The May 2007 statements by Captain Lenhardt were interpreted as discouraging volunteer firefighters' responses to nighttime fire calls in order to push the fire district to employ additional paid firefighters to respond to those same nighttime calls. It arguably constituted conduct unbecoming of a public employee in violation of N.J.A.C. 4A:2-2.3(a)(6). Captain Lenhardt's alleged June 2007 berating of Pierson for relaying what had happened on the fire truck; calling him an unflattering, derogatory name; and making veiled threats of retaliation against Pierson for expressing what happened, set the stage for another instance of conduct unbecoming a public employee in violation of N.J.A.C. 4A:2-2.3(a)(6), and other sufficient cause for discipline in violation of N.J.A.C. 4A:2-2.3(a)(11).
Because of increased difficulties of maintaining an entirely volunteer-staffed fire service by the Mercerville Fire Company, Hamilton Township hired several full-time firefighters and apparatus operators through its Fire District #2. At the time of the proceedings in the Office of Administrative Law (OAL), Fire District #2 had a fully-staffed fire truck twelve hours per day; the other twelve-hour shift was staffed by one volunteer firefighter. Four firefighters were required to fully staff an individual vehicle. The apparatus operator handled the fire truck while a paid fire captain oversaw the operations of the crew. The fire captain was responsible for the supervision of subordinates, along with implementing the policies of the board of fire commissioners. The fire chief is the individual in charge of overall operations.
Chief Jon B. Holcombe first became aware of an incident involving Captain Lenhardt and Pierson through an email communication from Fire Commissioner Norm Molis. Chief Holcombe commenced an investigation and contacted Pierson, who had been a junior firefighter since 2000 and was twenty years old at the time of the incidents at issue. Pierson was viewed as an active volunteer firefighter and had taken the Civil Service test for a paid position in May 2007. Pierson was interviewed by Chief Holcombe, and also provided a written statement. Pierson sensed that he used to be a close personal friend of Captain Lenhardt, but since the incidents, he no longer considered himself to be such a good friend. Because of the confrontations, he no longer felt welcome and rarely showed up for fire calls. He also indicated that he never went directly to Fire Commissioner Molis to complain, but told other firefighters about his concerns, which eventually got back to the commissioner. Pierson did not ask that Captain Lenhardt be disciplined for the two incidents.
Firefighter Burton testified that he was present when the comments were made by Captain Lenhardt to Pierson about the firefighter volunteering himself out of a job. He testified that he thought Captain Lenhardt was joking, as was his custom. Burton heard the other firefighters laughing, but he neither saw nor heard any reaction from Pierson. He indicated that Captain Lenhardt regularly joked with other firefighter, and that all of the comrades called each other numerous nicknames that were not meant to be demeaning or derogatory.
Raymond Krajesovics testified that he was employed by the fire district as an apparatus operator. He was working on May 1, 2007, and recalled the conversation on the fire truck when Pierson was talking about the fire district not hiring from the ranks of volunteer firefighters unless they increased their call response percentages. He remembered Captain Lenhardt saying that Pierson was going to volunteer himself out of a job, after which there was laughing. Krajesovics did not construe this comment to be serious and treated it as an inconsequential joke.
Captain Lenhardt testified on his own behalf. With twenty-two years of experience as a firefighter, he became captain of A Platoon several years ago. He had known Pierson for quite a while, and until May 2007, the two individuals had a very close relationship. Pierson would come to his house and they socialized and attended sporting events together outside of the firehouse. Their on-the-job relationship was professional. Pierson was considered as possessing good firefighter skills and he could be relied upon at a fire scene.
Captain Lenhardt testified that it was common practice among firefighters to make jovial comments and play practical jokes on each other. Using nicknames and name calling that may appear derogatory to outsiders were every day occurrences.
Captain Lenhardt also testified about the specific incidents in question. He indicated that on the way back to the fire station, Pierson referred to a statement made by Fire Commissioner Molis requiring the volunteers to keep up their percentages of responding to calls. Captain Lenhardt admitted that he responded, "[y]ou are going to volunteer yourself out of a job." He claimed that this was communicated in a friendly way, only meaning that if Pierson continued to volunteer, the commissioners would not need to hire anyone. He heard laughter, which confirmed to him that it was interpreted as a joke. Nothing else was said; he worked with Pierson afterwards and Pierson never approached him to discuss the statement. Pierson did not appear to be outwardly angry or upset.
A few weeks later, Captain Lenhardt learned that Pierson had spoken to Commissioner Molis about the events on the fire truck. He admitted that he was upset when he pulled Pierson aside and asked him why he had "cried" to one of the commissioners. He also conceded that he called Pierson a "pussy" and said that he would not be lenient with him anymore. He was admittedly very angry with Pierson because he thought that they were good friends, and he wanted to know why Pierson had stirred up trouble with their superiors.
Captain Lenhardt testified that his only intention in making the original statement was to tease Pierson and not to discourage him from responding to nighttime fire calls. Relying upon records of Pierson's activities in May 2007 and subsequent months, he denied that his statements had any impact upon Pierson's continued fire responses.
In his initial decision dated December 1, 2008, the Administrative Law Judge (ALJ) recognized that there were few facts in dispute. Indeed, all of the statements attributed to Captain Lenhardt were admitted to have been uttered by him. The analytical difficulty for the ALJ was to determine the interpretation and effect of these statements, and whether they called for the imposition of sanctions. The ALJ noted that even if Captain Lenhardt intended his initial statement in jest, it was reasonably taken seriously by Pierson, and Pierson was concerned enough about the comment to report it to others including, ultimately, a fire commissioner.
The ALJ canvassed the law and determined that "unbecoming conduct" for purposes of N.J.A.C. 4A:2-2.3(a)(6) included: excessive, violent, or other intemperate behavior[;] behavior which is not in accord with propriety, modesty, good taste or good manners[;] or behavior which is otherwise suitable, indecorous, or improper under the circumstances; it may be less serious than a violation of the law, but which is inappropriate on the part of a public employee because it is disruptive of governmental operations.
Based upon this framework, the ALJ found the following regarding the incident on the fire truck:
I have previously determined that on May 1, 2007, Captain Lenhardt stated to volunteer firefighter Pierson he was volunteering himself out of a paid firefighter job by responding to calls at night and that if firefighter Pierson wanted to keep his percentages up, he should respond to day calls. I have also determined that even if Captain Lenhardt may have intended this statement as a jest, it was taken seriously by volunteer firefighter Pierson, who was concerned enough to report it to others including a fire commissioner. Even if Captain Lenhardt's statement was intended as a joke, I FIND the message was clearly that if Pierson continued volunteering for calls at night, the fire district would see no need to hire paid firefighters to cover the overnight hours, I FIND that for a superior officer to espouse this position when talking to a subordinate volunteer firefighter would create a clear danger that the volunteer in question, and other volunteers who heard about it would be discouraged from continuing to volunteer. I FIND that this is unbecoming conduct since it may influence volunteers to cease volunteering resulting in a disruption of the operations of the fire district.
In similar fashion, the ALJ made the following conclusions regarding the June 9, 2007 incident:
I have also determined, based on Captain Lenhardt's own admissions, that on June 9, 2007, he called Pierson into his office and questioned why he cried to a commissioner about the first incident, called Pierson a "pussy" and stated that Pierson would get no more leniency from him. Captain Lenhardt contends that his berating of Pierson was as a friend rather than in his official capacity as a captain. However, if this were the case, why did Captain Lenhardt conduct this discussion in his office and threaten Pierson with the reprisal of no further leniency from him in his official capacity as Pierson's supervisor? For these reasons,
I FIND that I cannot accept Captain Lenhardt's contention that this incident was a discussion with a friend. Therefore,
I FIND that Captain Lenhardt's actions and conduct on June 9, 2007, was intended to berate a subordinate for reporting an inappropriate statement made by the captain and to intimidate the subordinate from reporting any future inappropriate conduct by the captain.
I FIND that this is unbecoming conduct since it adversely affects morale or' efficiency of subordinates and is disruptive of the operations of the fire district.
Lastly, the ALJ determined that the appropriate sanction would be a thirty-day suspension. He based this upon a consideration of "all of the surrounding circumstances, and after considering [Captain Lenhardt's] minimal disciplinary record."*fn1 Captain Lenhardt appealed the ALJ's decision to the Commission.
On March 12, 2009, after considering the exceptions and cross-exceptions filed by both parties, the Commission rendered its final administrative action. Although it adopted all of the ALJ's findings of fact, it increased the penalty to a forty-five day suspension. The Commission's rationale for modifying the sanction was its disagreement that Captain Lenhardt's prior discipline was minimal in nature. Instead, it found the "offense coupled with his recent disciplinary actions for similar conduct is sufficiently egregious to warrant a [forty-five] day suspension." This appeal followed.
"The scope of our review of an agency decision, whether viewed as an adjudicative action or the interpretation and application of a statute or regulation, is limited." I.L. v. N. J. Dep't of Human Servs. Div. of Med. Assist. & Health Servs., 389 N.J. Super. 354, 364 (App. Div. 2006); see also N.J. Tpk. Auth. v. Am. Fed'n of State, County & Mun. Employees, Council 73, 150 N.J. 331, 351 (1997) (stating that substantial deference is generally given to the interpretation an agency gives to a statute that it is charged with enforcing). An agency's interpretation of the operative law and its own rules and regulations is entitled to prevail as long as it is not "plainly unreasonable," Metromedia, Inc. v. Dir., Div. of Tax'n, 97 N.J. 313, 327 (1984), or contrary to its enabling statute, Appleby v. Civil Service Comm'n, 190 N.J. Super. 249, 255 (App. Div. 1983). We therefore must not substitute our judgment for the expertise of an agency, as long as its action is statutorily authorized and not otherwise flawed. In re Union County Reg'l High Sch. Dist. No. 1, 168 N.J. 1, 10 (2001) (internal citations omitted). "However, when an agency's decision is plainly mistaken, in the interest of justice we will decline deference to its decision." W.T. v. Div. of Med. Assist. and Health Servs., 391 N.J. Super. 25, 36 (App. Div. 2007) (citing P.F. v. N.J. Div. of Dev'l Disabilities, 139 N.J. 522, 530 (1995)); see also In re Taylor, 158 N.J. 644, 658 (1999) (an appellate court is not bound by the agency's interpretation of a statute or its determination of a strictly legal issue).
We have considered Captain Lenhardt's arguments in light of the complete record and applicable law. We are satisfied that none of the arguments are of sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(D). We conclude that the March 12, 2009 final administrative action of the Commission was supported by sufficient, credible evidence in the record. R. 2:11-3(e)(1)(D). We do not consider the sanction of a forty-five day suspension to be disproportionate to the offense or "shocking to one's sense of fairness." In re Carter, 191 N.J. 474, 482 (2007). We discern no arbitrariness, caprice, or unreason in either the outcome reached or in the explanation given. We are therefore required to respect the Commission's expertise and to defer to the Commission's carefully considered determination and exercise of principled discretion. See Campbell v. New Jersey Racing Comm'n, 169 N.J. 579, 587-88 (2001); Karins v. Atlantic City, 152 N.J. 532, 540 (1998).