On appeal from the Civil Service Commission, Docket No. CSC-2007-694.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing and LeWinn.
Lateif Dickerson appeals from the September 26, 2008 Final Administrative Decision of the Civil Service Commission (Commission), terminating his employment as a corrections officer with the Hudson County Department of Corrections (Department). We affirm.
On May 5, 2006, the Department served a Preliminary Notice of Disciplinary Action on Dickerson charging him with: (1) incompetency, inefficiency or failure to perform duties; (2) insubordination; (3) conduct unbecoming an employee; and (4) neglect of duty. These charges stemmed from Dickerson's failure to satisfy mandatory training requirements and to obtain permission for his outside employment, as well as his arrest in Tuxedo, New York for various motor vehicle violations and criminal possession of a firearm.
Following a departmental hearing, Dickerson received a Final Notice of Disciplinary Action on July 19, 2006, finding him guilty of the charges and ordering his removal from office effective immediately. Dickerson contested the decision and requested a hearing before the Office of Administrative Law. That hearing was held on January 2, and March 12, 2008, before an Administrative Law Judge (ALJ).
We review the factual background as set forth at that hearing. Dickerson began his employment with the Department on March 1, 1999. However, he never complied with the requirement imposed by N.J.S.A. 52:17B-68.1(a) that he "satisfactorily complete prior to permanent appointment a basic training course approved by the Police Training Commission." While the Department's enforcement of this statutory requirement may have been somewhat lax in the past, in 2004 a new Director was appointed who enforced the requirement. Deputy Warden David Krusznis testified that then "[t]here was a rush to have everyone sent to the Academy. Anyone who did not successfully complete the Academy was charge[d] . . . and . . . terminated." Dickerson never "successfully complete[d]" this training.
Throughout his employment with the Department, Dickerson was also the "owner/director and chief instructor" of an enterprise known as the New Jersey Firearms Academy, Inc. (NJFA), which "trains civilians and law enforcement officers in firearm safety and marksmanship as well as in martial arts and first aid . . . ." Department policy expressly requires any employee to receive written approval from the Warden in order to engage in outside employment. Dickerson conceded that he was aware of this policy but had never obtained such written approval. Nonetheless, he contended, and it was essentially undisputed, that Department officials were aware of his employment.
The Tuxedo, New York charges stemmed from an incident in November 2003 when Dickerson was returning from an NJFA training session in New Paltz, New York, and was stopped by police for a motor vehicle violation. The police determined that Dickerson's driving privileges had been suspended. Dickerson showed the police a Hudson County Corrections identification card which stated that he was not to possess firearms on or off duty. Dickerson also presented a New Jersey pistol permit specifying that he was permitted to carry firearms during his employment with the NJFA only. Dickerson was wearing a holster containing a loaded nine millimeter handgun; he also had a gravity knife and pepper spray. He was arrested and charged with third-degree criminal possession of a loaded firearm, criminal possession of a knife, aggravated unlicensed driver, driving while suspended, and driving with an inoperative taillight. These charges were dismissed in or about February 2005, with exception of the aggravated unlicensed driver charge, for which Dickerson paid a $200 fine.
The record further reflects that between January 13, 2001 and September 25, 2003, the Department had brought thirteen disciplinary actions against Dickerson, for misconduct including, but not limited to, insubordination, absenteeism, lateness, conduct unbecoming a public employee and neglect of duty.
The ALJ concluded that: (1) Dickerson was convicted of none of the criminal charges arising out of the November 2003 arrest and, "as to the firearms charge, . . . [he] engaged in no misconduct cognizable under the New Jersey civil service law"; (2) Dickerson's failure to pay outstanding parking tickets and "otherwise to rectify the suspension [of his driving privileges] . . . constitutes misconduct"; (3) Dickerson "committed no misconduct in connection with the [NJFA]" notwithstanding his failure to obtain written permission for such employment, because "the Department's imputed knowledge of and acquiescence to [his] activities with the [NJFA] constitute de facto authorization"; and (4) the Department had given Dickerson "three opportunities to complete Police Academy training[,]" and his "failure to timely complete [such] . . . training is problematic[,]" noting that "[i]f the current removal cannot be sustained, [Dickerson's] opportunity to attend the Academy should be restored." Regarding this last charge, the ALJ also noted that Dickerson's "[i]nability to perform [his] duties" due to his failure to complete training, rendered him "subject to discipline" under N.J.A.C. 4A:2-2.3. However, the ALJ concluded that since Dickerson "never was charged under this provision, his failure to complete the Academy timely cannot be a ground for removal in this proceeding."
Based on these findings, the ALJ determined that the Department had "failed to sustain its burden of proving that [Dickerson] is guilty of incompetency, insubordination, conduct unbecoming an employee, neglect of duty, or other sufficient cause in connection with" the various charges, with the exception of conduct unbecoming an employee by driving a motor vehicle while unlicensed in November 2003. The ALJ concluded:
Removal would be too severe a sanction since the offense, while serious, is not so egregious as to warrant removal. However, [Dickerson's] extensive prior disciplinary history, while a mere recruit, warrants an augmented sanction beyond that which ...