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In re Caldwell

November 3, 2010

IN THE MATTER OF ROGER CALDWELL, JR., MERCER COUNTY BOARD OF SOCIAL SERVICES.


On appeal from the New Jersey Civil Service Commission, Docket No. 2006-443.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 21, 2010

Before Judges Wefing and Koblitz.

Petitioner appeals from a Final Decision of the Civil Service Commission terminating him from his position with the Mercer County Board of Social Services ("the Board") as a Human Services Specialist II. After reviewing the record in light of the contentions advanced on appeal, we affirm.

Petitioner commenced working for the Board in October 2000. His termination was based upon his conduct in 2005 in connection with a client, I.C., leading to a charge of conduct unbecoming to a public employee. Following a departmental hearing, at which the charge was upheld, with termination as the penalty, petitioner appealed. The hearing before the administrative law judge was conducted in two separate segments. At the first, the Board presented a number of witnesses, but I.C. did not testify although a recording of her testimony at the departmental hearing was received. At the conclusion of that hearing, the administrative law judge found the charges not substantiated; he concluded that the presentation of I.C.'s recorded testimony at the departmental hearing was insufficient for purposes of the hearing before him. The agency, after reviewing that initial decision, did not make a final decision but, rather, remanded the matter to the Office of Administrative Law for purposes of permitting I.C. to testify in person. Following the conclusion of that second segment, the administrative law judge issued a decision finding the testimony of I.C. not persuasive and concluding that the disciplinary charge had not been proven.

The administrative law judge recommended the charge be dismissed. To this, the Board filed written exceptions. After reviewing the decision of the administrative law judge, the Civil Service Commission rejected it. It found that the Board had proven the charge and that termination was the appropriate penalty. This appeal followed.

I.C. said she came to the Board seeking assistance, in particular with respect to food stamps and housing, and was assigned to work with petitioner. She said she explained to him that she had two children, then approximately six years and four years of age, but that they lived with her mother, and she saw them on weekends. She said she was paying child support to her mother for them. She provided a variety of information to him, including her address and cell phone number. She returned a second time to provide additional paper work to him. She said she then received several telephone calls from him, telling her she needed to provide additional information. When she replied she could not immediately get back to the office, he told her that he also worked as a bartender at the Veterans of Foreign Wars (VFW) hall in Ewing and that she could drop the paper work there for him. She said she agreed to meet him there on the evening of Sunday, February 13, after she returned her children to her mother.

She said she arrived sometime after 8:30 p.m., bringing the papers with her. She said she had not known where the hall was located, but Caldwell had called her on her cell phone to give her directions. Caldwell came out to the parking lot and told her to come inside, which she did. He told her where to sit, at the end of the bar, and gave her a drink. After some time, he told her to go to his car in the parking lot and wait for him; again, she did so. She waited for a while and he then came out and drove her to a nearby Kentucky Fried Chicken, where he purchased food for both of them. When he did not return to the VFW hall in Ewing, she asked why, and he replied that he wanted to spend some time with her. He then drove to a nearby motel, on Route One. He left her in the car and went to register as a guest. He then took her to a room on the second floor, where he sexually assaulted her. When he had finished, he left $20 on the bed and then drove her back to Ewing where she got into her car and drove off. She said she drove home, crying, and took a shower. She did not tell anyone because she thought no one would believe her. Later, she talked to her mother, who told her she should report the incident. Eventually, she contacted Caldwell's supervisor, who initiated an investigation. In the course of the investigation, I.C. identified the Mount Motel as the site at which Caldwell had assaulted her. Although Caldwell admitted frequenting the motel, he denied doing so with I.C. The motel had in its records a registration card signed "Junoir [sic]," but there was testimony that two employees of the motel were unable to identify Caldwell's photograph.

Caldwell gave a completely different version of his interaction with I.C. He said I.C. came to the Board in January 2005 seeking certification with respect to her eligibility for food stamps, and she was directed to petitioner. She did not have with her all the necessary documentation to establish her eligibility and she had to return for a second visit. He testified, however, that during the first meeting he did provide her with information about several programs that might be able to provide assistance to her in meeting her housing needs.

Caldwell testified that I.C. returned in February 2005. He said that he checked certain of the information she provided against other records and told her that the amount of food stamps she would receive would be reduced by $33 per month.

I.C. protested there must have been a mistake. He said he never assured her he would assist her in finding housing because that was not within his area of responsibility. He said that was his last meeting with her. He also said that he was later approached by his supervisor and told that I.C. had apparently sought to claim benefits on the basis of children who did not reside with her, but with her mother, who was receiving food stamps for them. His supervisor instructed him to complete a fraud complaint form. Although he did so, I.C. was never charged with fraud. He insisted he had no further contact with I.C. after her second visit to the office and denied ever meeting with her outside of the office. He maintained that I.C.'s charge was filed to retaliate against him because he had discovered her fraudulent attempt to obtain benefits.

To support the charge against Caldwell, the Board noted the various details within I.C.'s testimony that would only have been known to her if the incident had occurred as she related it. In his decision following the remand hearing, the administrative law judge rejected that argument and concluded his opinion with the statement, "[t]he assessment of I.C.'s credibility is not such as to disturb the earlier determination that respondent failed to meet its burden of proof by a preponderance of the evidence."

Appellant makes but one contention on appeal, that the decision of the Civil Service Commission was not based on sufficient credible evidence and was arbitrary, capricious and unreasonable and, therefore, should be ...


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