July 23, 2010
IN THE MATTER OF THE TENURE HEARING OF MARCELINO BASULTO, SCHOOL DISTRICT OF THE TOWN OF WEST NEW YORK, HUDSON COUNTY.
On appeal from a Final Decision of the Commissioner of Education, Docket No. 29-2/09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued June 3, 2010
Before Judges Axelrad and Espinosa.
Marcelino Basulto appeals from a final decision of the Commissioner of Education, affirming the decision of the Administrative Law Judge (ALJ) that he be dismissed from his tenured position as a custodian for conduct unbecoming a public employee and insubordination. We affirm, substantially for the reasons set forth in the written decision by the ALJ.
This matter was referred to the Office of Administrative Law as a contested case. The facts are set forth at length in the ALJ's decision and need not be repeated here. We note only the following salient facts.
Basulto was initially employed by the West New York Board of Education (the Board) as a custodian in May 2003 and was tenured, N.J.S.A. 18A:17-3, when tenure charges were filed on January 12, 2009. The Board charged him with conduct unbecoming a tenured custodian, insubordination, misbehavior, inability to complete his duties and other just cause. Prior to the conduct that gave rise to these charges, Basulto had been the subject of disciplinary action.
In or about January 2006, Robert Jameson, Supervisor of Fields, Grounds, Custodians and Maintenance, issued a warning letter to Basulto for leaving for lunch early. In a follow-up letter, Jameson stated that he had warned Basulto that further infractions of the lunch policy would result in his termination. Although Basulto refused to sign a copy of the letters, his union representative did so. In January 2008, Jameson issued another warning to Basulto based upon his failure to maintain rooms assigned to him in a clean or sanitary condition on December 26, 27 and 28, 2007.
The conduct that led to the tenure charges occurred in the summer of 2008. On August 5, 2008, Basulto's direct supervisor, Ramon Fernandez, became concerned when he was unable to locate or contact Basulto in the building. He contacted Rick Solares, Facilities Supervisor, and Jameson, who came to the school to investigate. As they walked through the parking lot, Solares saw Basulto, asleep and snoring in his car. Jameson and Solares observed that Basulto remained in his car for approximately thirty minutes before returning to the school. They stopped Basulto and questioned him. He stated that he had gone to his car to obtain medication and insisted that he was in the car for only five minutes. However, a surveillance tape from August 5, 2008 reflected that Basulto was actually in his car for over one hour, from 8:39 a.m. until 9:53 a.m.
During the summer months, custodians work six-hour days with no break for lunch and, pursuant to their contract, are entitled to no more than a fifteen minute break from duties.
In the hearing before the ALJ, Basulto did not deny the conduct attributed to him but attempted to excuse his conduct based upon medical needs due to cataract surgery. The ALJ concluded that the charge that Basulto was away from his post on August 5, 2008 was uncontroverted and found as fact that "Basulto was in his car for over an hour during his regularly scheduled shift without the permission of his supervisor."
After this incident, Solares had additional surveillance tapes reviewed to determine if there were other occasions when Basulto left the building during his shift. The surveillance tapes revealed that Basulto had left the school building during his shifts for more than fifteen minutes on three prior occasions: July 28, 2008 (Basulto seen in his car for thirty-three minutes); July 30, 2008 (Basulto left premises in his car twice for a total of fifty-five minutes away from the building); and August 4, 2008 (Basulto away from building for thirty-five minutes). The ALJ described Basulto's testimony regarding these absences as "replete with inconsistencies and . . . often evasive." The ALJ found as fact that "on July 28, July 30 and August 4, 2008, Basulto was away from his post without permission, and for periods of time that exceeded his contractually authorized break of fifteen minutes."
As the ALJ set forth, N.J.S.A. 18A:6-10 provides that no tenured employee in the public school system shall be dismissed "except for inefficiency, incapacity, unbecoming conduct, or other just cause[.]" Pursuant to N.J.S.A. 18A:17-3, tenured custodial employees "shall not be dismissed . . . except for neglect, misbehavior or other offense[.]" The ALJ concluded that the Board had met its burden of proving the charges by a preponderance of the credible evidence and that Basulto should forfeit his tenure and be dismissed from his employment.
Neither party filed exceptions to the ALJ's decision. The Commissioner issued a final decision, concurring in the ALJ's decision that the Board had sustained its burden of proving the charges of unbecoming conduct, insubordination, and other just cause and that removal was warranted. The Commissioner adopted the ALJ's decision for the reasons stated therein.
In this appeal, Basulto presents the following issues:
APPELLATE STANDARD OF REVIEW.
THE BOARD FAILED TO PRODUCE SUFFICIENT CREDIBLE EVIDENCE TO PROVE THE CHARGES AGAINST APPELLANT.
THE ADMINISTRATIVE COURT ERRED IN ITS ALLOWANCE OF THE INTERPRETERS USED.
A. RICK SOLARES
B. CARDIDAD NIN
THE ADMINISTRATIVE COURT IMPROPERLY ADMITTED AND CONSIDERED VIDEO SURVEILLANCE FOOTAGE.
THE ADMINISTRATIVE COURT FAILED TO APPLY PROGRESSIVE DISCIPLINE IN THE INSTANT MATTER.
Our review of a final decision of an administrative agency is limited. In the absence of "a clear showing that it is arbitrary, capricious, or unreasonable, or that it lacks fair support in the record," the decision will be sustained. In re Herrmann, 192 N.J. 19, 27-28 (2007); see also Brady v. Bd. of Review, 152 N.J. 197, 210-11 (1997); Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). Because the conclusions reached by the ALJ and adopted by the Commissioner are amply supported by the record, we affirm the decision, substantially for the reasons set forth by the ALJ.
The issues raised in Points III, IV and V lack sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(1)(D), beyond the following brief comments.
Basulto brought his daughter to act as interpreter for him at the hearing. When she was unable to perform this function, Rick Solares offered to serve as interpreter "as long as it's not a conflict of interest." Counsel for the Board stated that if Basulto objected, Solares would not act as interpreter. Basulto's counsel unequivocally agreed to permit Solares serve as interpreter. Basulto's daughter remained at the proceeding, able to alert him or his counsel if Solares failed to interpret accurately. The argument that it was error to proceed with these interpretative services fails because Basulto consented to the procedures and has identified no error in interpreting, let alone one that caused prejudice to his case.
Basulto argues for the first time on appeal that the video surveillance tapes were not properly authenticated. This court does not entertain exceptions raised for the first time on appeal. State v. Robinson, 200 N.J. 1, 20 (2009); Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). Moreover, this argument lacks merit. N.J.A.C. 1:1-15.1(c) provides in pertinent part:
Parties in contested cases shall not be bound by statutory or common law rules of evidence or any formally adopted in the New Jersey Rules of Evidence except as specifically provided in these rules. All relevant evidence is admissible except as otherwise provided herein.
Since Basulto was provided with copies of the videotapes more than ten days before the hearing, the videotapes were entitled to a presumption of authenticity in the absence of a challenge. See N.J.A.C. 1:1-15.6; N.J.R.E. 801(e) and 1001(b).
Finally, Basulto argues that it was error for the Commissioner to fail to apply progressive discipline rather than to discharge him. This argument rests upon the general notion that progressive discipline is a good concept. In the absence of any statutory or contractual provision that required the application of progressive discipline, there was no error in concluding that termination was warranted.
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