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In the Matter of Ron Smith.

February 17, 2011

IN THE MATTER OF RON SMITH.


On appeal from a Final Administrative Decision of the Civil Service Commission, Docket No. 2008-3412.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued: January 26, 2011

Before Judges Cuff and Fasciale.

Ron Smith appeals from an order and final administrative decision of the Civil Service Commission (Commission) that terminated him as a Senior Building Maintenance employee at Kean University (Kean). The Commission rejected credibility determinations of an Administrative Law Judge (ALJ) and made its own modified findings. We affirm because the Commission stated with particularity the reasons for rejecting the findings and made new findings which are supported by sufficient, competent, and credible evidence.

Kean charged Smith with brandishing a knife against a co-worker on May 22, 2007, and threatening to kill another co-worker on June 7, 2007. Kean terminated Smith from employment, Smith appealed, and the matter was transmitted to the Office of Administrative Law for a hearing.

An ALJ conducted a hearing over two days at which nine witnesses testified. Two of the nine witnesses -- Edward North and William McRobbie -- testified that Smith brandished a knife towards Gerard Cianci. The ALJ found that Smith neither possessed a knife nor threatened a co-worker. The ALJ stated:

I do not credit the testimony of either North or McRobbie. Their testimony was inconsistent and less than reliable. Some of the critical facts as recalled by North in his June 7, 2007[] written statement differ from his testimony from this hearing. North concedes that he did not see Smith pull out a knife or open the blade as previously reported. McRobbie's assertion that a knife was visible for five minutes is not supported by any witness. In addition, both North's and McRobbie's accounts are contradicted by [Steven] Pinto, [Orlando] Lopez, and [Gerard] Cianci, none of whom recalled the presence of a knife on May 22, 2007.

The ALJ recommended a thirty-day suspension from employment because Smith was inappropriately loud and disruptive in the work environment.

Kean appealed to the Commission and argued that the ALJ's credibility findings were unreasonable and not supported by the evidence. The Commission agreed and stated the reasons for rejecting the ALJ's findings. After conducting its own independent review of the record, the Commission upheld Kean's removal of Smith from employment.

On appeal, Smith contends that the credibility findings made by the ALJ were supported by sufficient credible evidence and that the Commission rejected those findings incorrectly. Smith argues, therefore, that the Commission's independent findings contravened the provisions of N.J.S.A. 52:14B-10(c) which governs the final decision of an agency in contested cases, and provides in part that:

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.

To reverse the ALJ's factual findings, the Commission "must explain why the ALJ's decision was not supported by sufficient credible evidence or was otherwise arbitrary." Cavalieri v. Bd. of Trustees, 368 N.J. Super. 527, 534 (App. Div. 2004) (citing N.J.S.A. 52:14B-10(c)). It is not enough for the Commission to "simply [state] that [it] disagree[s] with the [ALJ] or would have decided [the case] differently. . . ." Id. at 537. The Commission stated:

[A] review of the testimony clearly shows that North, while presenting slightly different accounts of the May 22, 2007 incident in his testimony as compared to his written statements, has steadfastly maintained he saw [Smith] with a knife during the altercation. . . . [T]he ALJ discounted North's testimony due to these inconsistencies. However, based on the Commission's review of the testimony, it finds that North's inconsistencies actually bolster his credibility. In his testimony [on direct-examination], North admitted that his prior written statements inaccurately indicated that he saw [Smith] actually draw the knife and open the blade. However, he repeatedly indicated that the knife was present. How the knife was drawn is immaterial and the fact that North admitted his statements in that regard were not accurate demonstrates North's desire to present, under oath, the most accurate portrayal of what he witnessed. . . . Moreover, there was no reason presented for North, who was not an employee [of Kean], to fabricate, exaggerate or otherwise lie about what he witnessed on May 22, 2007. Further, supporting North's ...


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