June 11, 2010
WILLIAM LEE, APPELLANT,
GARDEN STATE YOUTH CORRECTIONAL FACILITY, IN THE NEW JERSEY DEPARTMENT OF CORRECTIONS, RESPONDENT.
On appeal from the final agency decision of the Civil Service Commission, Docket No. 2007-4946.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 24, 2010
Before Judges Rodríguez, Reisner and Chambers.
William Lee appeals from a final decision of the Civil Service Commission (Commission), which adopted Administrative Law Judge (ALJ) Joseph Lavery's decision, upholding two final notices of disciplinary action (FNDA) issued by the Department of Corrections (DOC). We affirm.
These are the pertinent facts. Lee was a senior corrections officer (SCO) at Garden State Youth Correction Facility (the Facility), which housed males between the ages of fourteen and thirty-one. Lee had been a corrections officer since April 2005.
On July 31, 2006, Lee was sitting in a metal chair while monitoring inmates who were showering. Lieutenant David P. Pipeling told Lee that he could not sit in the chair, as it was heavy and could be used as a weapon. Lee said, "I'll use a plastic chair, then." Pipeling reminded Lee he could not be seated because he was supposed to walk through three different wings to monitor inmates. Lee replied that his back hurt from a previous injury. Pipeling advised him that there was no reduced duty status and he would be relieved of his duties if he did not stop using the chair. Lee said, "I can't work. I guess I'll just have to go back out on SLI. I also need to go to the hospital then and I want someone to drive me." Sergeant Jason Nordgren heard this conversation.
Pipeling directed Lee to report to the infirmary and to submit a special report before he left the Facility. At the infirmary, Lee insisted that he wanted to go to an outside hospital. Lieutenant Michael F. Gallagher arranged transportation, but told Lee to submit all necessary reports before leaving. Lieutenant Robert Flynn also ordered Lee to report to the supervisor's office to speak with Pipeling before he left.
Instead of writing the report, Lee went to Captain Frank Galletto and claimed he was injured that day on the job. Pipeling, Galletto, and union representative Jose Rivera met with Lee. However, Lee interrupted them and said, "I'm in a confused state of mind right now." Galletto continued to ask Lee if he had been injured that day. Lee was not responsive. Galletto told Lee that he considered the non-response to be a negative answer. Lee still did not respond. Lee then said, "I will be seeing my lawyer about this."
Lee was taken to an outside hospital for treatment. About an hour later, Lee called Gallagher requesting transportation back to the Facility. Lee told Gallagher he did not receive treatment at the hospital because the wait was too long. Lee was brought back to the Facility, but he left soon after without filing a report.
In response to the events on July 31, 2006, the DOC issued a preliminary notice of disciplinary action (PNDA), charging Lee with insubordination and "other sufficient cause" and recommending a suspension for fifteen working days.
On October 3, 2006, an emergency call was sounded due to an altercation in the kitchen between inmate, T.K., and SCO William Schuyler. Approximately fifteen to twenty officers responded, including Flynn, Nordgren, Gallagher, SCO Rudolph Buchwald, SCO Nicholas G. Joy, SCO John P. Musso, and Sergeant Alan L. Bolden. There were approximately twenty-five inmates in the area at the time. Flynn arrived in the kitchen and saw Schuyler and SCO Michael Yuhas attempting to restrain T.K. Flynn handcuffed T.K. and he, Nordgren, Buchwald, and other officers escorted T.K. out of the kitchen. T.K. was resistant during the escort.
As the escort proceeded, Lee approached, grabbed Buchwald's hand, and said, "Get your hand off his face." Buchwald pushed Lee away. Lee was yelling profanities. Flynn and other officers tried to calm him down and Nordgren ordered Lee to leave the area. However, Lee continued to follow the escort, screaming that T.K. "did not do anything wrong" and that the officers were going to "kill" him. Lee kept shouting, "Leave him alone! I saw the whole thing! I'm writing this up! I'm a witness!"
In response to these events, the DOC issued Lee an FNDA for insubordination; conduct unbecoming of a public employee; inappropriate contact or mistreatment of an employee; threatening, intimidating, harassing, coercing, or interfering with fellow employees on State property; and other sufficient cause for being subject to discipline. The FNDA removed Lee from his position. T.K. was charged for his outburst, but the charges were subsequently dropped. An investigation revealed that Schuyler had indeed initiated the physical altercation. He was initially removed, but subsequently negotiated for a reduced penalty of a suspension. Lee, represented by counsel, appealed to the Commission. The Commission transmitted the matter to the Office of Administrative Law as a contested case.
THE ALJ HEARING
At the hearing, Pipeling, Nordgren, Gallagher, and two other officers each testified and confirmed the above version of events. According to Lee, however, he did not refuse to answer Galletto's questions and Pipeling was lying in his report and testimony. He merely said, "Captain, I wrote everything down, please refer to my special [report]." He said that Flynn never told him to report back to Pipeling and that Flynn also was lying. Lee did not "really feel [he] was being [in]subordinate."
Flynn testified that Lee's behavior in the second incident could have incited a fight to ensue amongst the other inmates and placed the officers in danger. Nordgren, Wills, Joy, and Buchwald wrote special reports and their testimony corroborated Flynn's testimony, indicating that Lee was the only officer to behave inappropriately.
T.K. testified that Schuyler started the altercation by putting him in a chokehold after they had a verbal disagreement. Both Lee and T.K. testified that T.K. was not resisting the escort and that the officers slammed T.K.'s head into the wall and tried to make him stop breathing. T.K. claimed he had "knots on his head" and a "busted mouth." However, all of the officers testified that T.K. had no injuries and no medical report to the contrary was produced. Lee claimed he "did not intervene" in the escort, but rather conducted himself in a "calm and professional manner" and was merely objecting to the abuse. Lee's testimony directly conflicted with all of the officers who testified that Lee was shouting and using profanity.
ALJ Lavery issued an initial decision, affirming the fifteen-day suspension and the removal. He found the officers more credible, noting that Lee's "credibility must be discounted as well by his contention that all nine State's witnesses were untruthful in their testimony . . . DOC's witnesses were more persuasive, measuring both the demeanor and the content of their statements." The ALJ noted that "[t]heir believability is especially pertinent in descriptions of the surprise and the dangerous confusion which [Lee's] behavior engendered. None of these witnesses had ever before faced the experience of a fellow officer putting himself in physical contact with an escort group, or loudly siding with an oppositional, combative inmate during a struggle[.]" The ALJ affirmed, concluding that Lee's "continuation as a corrections officer is therefore a risk to the institution [that] it was his duty to guard."
After Lee's counsel filed written exceptions and the DOC responded, the Commission issued a final decision, adopting the ALJ's findings and conclusions and upholding the fifteen-day suspension and the removal. The Commission concluded:
[T]he Commission finds that there is sufficient evidence in the record to support the ALJ's credibility determinations. The ALJ specifically indicated that he found the appointing authority's witnesses credible and the appellant not credible. He provided numerous examples of credible statements made by the appointing authority's witnesses including a finding that excessive force was not used when dealing with the inmate . . . . Further, the ALJ provided well-reasoned explanations as to why [Lee's] testimony was not credible.
Lee filed pro se a timely appeal, contending that he "was denied [his] right to an investigation of the charges to be brought against [him], which violated attorney general guidelines, and [his] right to due process." Lee also argues that his actions on October 3, 2006 were justified because he "saw the inmate being physically abused by the officers and having his breathing interfered with by those officers." We disagree.
Generally, the scope of appellate review of an administrative body's final decision is a limited one. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). A reviewing court must "not upset a determination by [an agency] in the absence of a showing that it was arbitrary, capricious or unreasonable, or that it lacked fair support in the evidence, or that it violated legislative policies expressed or implicit in the civil service act." Campbell v. Dep't. of Civil Serv., 39 N.J. 556, 562 (1963).
Once a final agency decision has been made, the reviewing court may not engage in an independent assessment of the evidence as "if it were the court of first instance." State v. Locurto, 157 N.J. 463, 471 (1999). See also Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992) ("Appellate courts must defer to an agency's expertise and superior knowledge of a particular field. Thus, if substantial credible evidence supports an agency's conclusion, a court may not substitute its own judgment for the agency's even though the court might have reached a different result.") (citations omitted). Only if the reviewing court determines that the findings were arbitrary, capricious, or unreasonable, "then, and only then, [the appellate court] should appraise the record as if it were deciding the matter at inception and make its own findings and conclusions." In re Taylor, 158 N.J. 644, 657 (1999) (alteration in original) (citation omitted).
Here, Lee cites to N.J.A.C. 10A:3-3.1(b) in support of his argument that his intervention was justified because he saw T.K. being abused. However, in its September 26, 2008 final decision, the Commission adopted ALJ Lavery's factual findings that there was no credible evidence that T.K.'s breath had been stopped and no medical evidence to contradict the officers' testimony that T.K. was not injured. This court gives deference to the findings of a trial judge who is able to hear and see witnesses and develop a "feel" of the case. Locurto, supra, 157 N.J. at 471. Given the large number of lieutenants and sergeants who testified with nearly identical versions of the incident, ALJ Lavery's findings of fact were supported by sufficient credible evidence. Ibid.
Lee also argues that the DOC violated procedure by rushing into a hearing and that this court should remand for an investigation of the October 3, 2006 incident. We disagree.
Per the Civil Service Act, N.J.S.A. 4A:2-13 to -22, and corresponding regulations, the proper procedure for seeking disciplinary action is to file a FNDA "setting forth the charges and statement of facts supporting the charges." N.J.A.C. 4A:2-2.5(a). The employee is then entitled to request a hearing within five days, N.J.A.C. 4A:2-2.5(c), and this hearing must be held within thirty days. N.J.A.C. 4A:2-2.5(d). An FNDA will then be issued within twenty days and the employee may appeal to the Commission for a de novo review. N.J.A.C. 4A:2-2.6(d).
This is the exactly the procedure that was followed here. If Lee felt that there were "any number of civilian employees and inmates in the kitchen area who could have been interviewed and their statements recorded," he could have called these individuals as witnesses at his hearing. N.J.A.C. 4A:2-2.6(c). The DOC was not required by statute to conduct further investigation.
Lee also argues that "the trial court erred [in] excluding certain evidence that had great probative value weighing heavily in appellant's favor and should have been admitted and relied upon by the [ALJ]." Lee does not specify what evidence existed or was excluded by the court that would have assisted his case. Further, Lee's counsel failed to object to any of ALJ Lavery's evidentiary rulings during the hearing, nor did Lee raise them in his written exceptions to the initial decision. Thus they were not preserved for appeal. R. 1:7-2.
Lee also contends that: a) "a substantial amount of discovery was withheld . . . denying [him] a fair hearing;" b) a falsified work history report was leveled against him by the ALJ and Attorney General; c) state witnesses at cross-examination were not truthful in their testimony; d) he received severe punishment without following the DOC policies; and e) his fitness for duty report should have been part of discovery. We find these arguments without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
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