July 20, 2010
IN THE MATTER OF LATEIF DICKERSON, HUDSON COUNTY.
On appeal from the Civil Service Commission, Docket No. CSC-2007-694.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued March 9, 2010
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 would be appropriate for an offender with an otherwise good record.
Therefore, the ALJ ordered that Dickerson be "fined ninety working days' pay for this offense."
The Commission, upon de novo review of the record, disagreed with the ALJ's decision and upheld the Department's decision to terminate Dickerson's employment, based upon the following reasoning:
With respect to [Dickerson's] failure to complete an approved basic training course, the ALJ's conclusion that [he] could not be removed because he was not charged with the inability to perform duties is flawed. In this regard, N.J.S.A. 52:17B-68.1 provides in pertinent part:
a. A person appointed as an adult or juvenile corrections officer or as a juvenile detention officer by the State or county shall satisfactorily complete prior to permanent appointment a basic training course approved by the Police Training Commission . . . .
b. A person shall be given a probationary appointment as a corrections officer or as a juvenile detention officer for a period of one year so that the person seeking permanent appointment may satisfactorily complete a basic training course for corrections officers or for juvenile detention officers conducted at a school approved by the Police Training Commission . . . .
Thus, the failure to complete the requisite training is clearly grounds alone for removal. In the instant matter, [Dickerson] was provided with three opportunities to attend and complete a basic training course and there is no statutory requirement that an appointing authority provide opportunities for training ad infinitum. Moreover, [Dickerson] was on notice that he was charged with failing to complete the academy since that specification appeared on the Preliminary Notice of Disciplinary Action and was sustained in the FNDA dated July 19, 2006. . . . Accordingly, the fact that he was not "charged" with the inability to perform duties is not persuasive.
Moreover, [Dickerson's] removal is warranted notwithstanding his failure to complete a basic training course. In this regard, the conditions placed on [Dickerson's] New Jersey handgun permit are irrelevant since it is undisputed that [he] was carrying a handgun outside of New Jersey and thus charged with violating New York State law. Furthermore, [Dickerson] was obligated to report, in writing, any outside employment activities which he does not deny that he failed to do. The Commission, therefore, cannot agree with the ALJ regarding these charges. Moreover, the Commission agrees with the ALJ regarding [Dickerson's] conduct regarding his suspended license. The Commission emphasizes that a County Correction Officer is a law enforcement employee who must enforce and promote adherence to the law . . . .
Accordingly, the Commission finds that the removal should be upheld. In determining the proper penalty, the Commission's review is de novo. In addition to its consideration of the seriousness of the underlying incident, the Commission also utilizes, when appropriate, the concept of progressive discipline. . . . However, it is well established that when the underlying conduct is of an egregious nature, the imposition of a penalty up to and including removal is appropriate, regardless of an individual's disciplinary history. . . . [Dickerson's] prior disciplinary history since his employment in 1999 includes numerous major and minor disciplinary actions on various charges, including major disciplinary actions in 2001, 2002 and 2003. Therefore, after a thorough and independent review of the entire record, the Commission concludes that, based on the nature of the charges and [Dickerson's] prior disciplinary record, the penalty of removal imposed by the appointing authority is neither unduly harsh nor disproportionate to the offenses, and should be upheld.
On appeal, Dickerson argues that the Commission "erred when it failed to uphold the decision of the [ALJ]." Dickerson contends that the Commission imposed an improper standard of review when it stated that it did not "agree" with the ALJ's determination. Rather, Dickerson contends that the Commission "has the authority to reverse or modify the decision of an [ALJ] IF [sic] the decision was not supported by the credible evidence in the record or was otherwise arbitrary."
The standards governing an agency's review of an ALJ's decision are set forth in N.J.S.A. 52:14B-10(c):
In reviewing the decision of an [ALJ], the agency head may reject or modify findings of fact, conclusions of law or interpretations of agency policy in the decision, but shall state clearly the reasons for doing so. The agency head may not reject or modify any findings of fact as to issues of credibility of lay witness testimony unless it is first determined from a review of the record that the findings are arbitrary, capricious or unreasonable or are not supported by sufficient, competent, and credible evidence in the record. In rejecting or modifying any findings of fact, the agency head shall state with particularity the reasons for rejecting the findings and shall make new or modified findings supported by sufficient, competent, and credible evidence in the record.
Our scope of review of an agency's application of those standards in reaching a final determination is limited.
Courts can intervene only in those rare circumstances in which an agency action is clearly inconsistent with its statutory mission or with other State policy. Although sometimes phrased in terms of a search for arbitrary or unreasonable agency action, the judicial role is restricted to four inquiries: (1) whether the agency's decision offends the State or Federal Constitution; (2) whether the agency's action violates express or implied legislative policies; (3) whether the record contains substantial evidence to support the findings on which the agency based its actions; and (4) whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors. [George Harms Const. Co. v. N.J. Tpk. Auth., 137 N.J. 8, 27 (1994).]
"[C]courts are not free to substitute their judgment as to the wisdom of a particular administrative action for that of the agency so long as that action is statutorily authorized and not otherwise defective because arbitrary or unreasonable . . . ." N.J. Guild of Hearing Aid Dispensers v. Long, 75 N.J. 544, 562-63 (1978). Administrative agencies have broad, though not boundless, discretion in adjudicating disputes, In re Vey, 124 N.J. 534, 543-44 (1991), and reviewing courts should typically defer to an administrative agency's expertise. Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 587 (1988). As a result, we must uphold an administrative agency's decision if that decision is supported by sufficient credible evidence. Carpet Remnant Warehouse, Inc. v. N.J. Dep't of Labor, 125 N.J. 567, 587 (1991). "Unless a [c]court finds that the agency's action was arbitrary, capricious, or unreasonable, the agency's ruling should not be disturbed." Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). Thus, we are bound to affirm the Commission's decision where the evidence supports it, even if we may question the wisdom of that decision or would have reached a different result. Campbell v. N.J. Racing Commission, 169 N.J. 579, 587 (2001).
Having carefully reviewed the record in light of these standards, we are satisfied that the Commission's decision comports with the principles set forth in N.J.S.A. 52:14B-10(c).
First, regarding Dickerson's failure to complete the mandatory training at the Police Academy within the required timeframe, the Commission took issue with the ALJ's determination that Dickerson was never charged with that infraction. As the Commission noted, and as the record supports, that specific charge was set forth in the Preliminary Notice of Disciplinary Action issued on May 5, 2006, as well as the July 19, 2006 Final Notice of Disciplinary Action. Moreover, Dickerson's proffered excuses for his failure to comply with this requirement are of no weight. N.J.S.A. 52:17B-68.1(a) makes completion of this training mandatory "prior to permanent appointment . . . ." We are satisfied that the Commission properly rejected the ALJ's findings and conclusions with respect to this infraction.
Next, with respect to the offense of illegally carrying a handgun in New York State, Dickerson himself acknowledged that "technically [he] was on the New York side[,]" where he was not authorized to carry the weapon. That this charge was ultimately dismissed in New York is immaterial to the fact that Dickerson violated the conditions of his New Jersey handgun permit by carrying that weapon out of state.
Regarding Dickerson's failure to obtain written permission for his outside employment at the NJFA, we are satisfied that the Commission properly rejected the ALJ's conclusion that the Department had "acquiesced" in that employment. The burden is upon Dickerson to comply with the Department's policies governing the terms of his employment. Hudson County Policy No. 4.8(D)(6) mandates that "[a]ll off-duty work requests must be submitted to the Warden in writing listing the off-duty employer and time and days of employment. No off-duty employment is approved until written approval is given by the Warden." Dickerson may not rely upon the Department's conduct to relieve him of this express requirement.
Finally, we concur with the weight the Commission accorded to Dickerson's prior disciplinary history in assessing penalty. That history dates back to January 2001 and continued on a recurrent basis up to the time of the present disciplinary charges. "Although we recognize that a tribunal may not consider an employee's past record to prove a present charge, that past record may be considered when determining the appropriate penalty for the current offense." In re Phillips, 117 N.J. 567, 581 (1990).
In sum, we conclude that "[i]n rejecting [and] modifying" the ALJ's findings and conclusions, the Commission has "state[d] with particularity the reasons" for so doing, and has made "new or modified findings supported by sufficient, competent and credible evidence in the record." N.J.S.A. 52:14B-10(c).
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