On certification to the Superior Court, Appellate Division (2010).
The opinion of the court was delivered by: Stern, J.
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).
STERN, J. (temporarily assigned), writing for a unanimous Court.
In this case involving public employee misconduct, the Court considers whether the Appellate Division exceeded its proper scope of review when it reversed the penalty imposed by the Civil Service Commission (Commission) and reinstated the penalty imposed in the initial decision of the Administrative Law Judge (ALJ).
Petitioner Anthony Stallworth was a pump station operator for the Camden County Municipal Utilities Authority (CCMUA), a regional authority that handles wastewater collection and treatment. When the misconduct involved in this case occurred, Stallworth had been a CCMUA employee for seventeen years. He was provided with a marked CCMUA truck to travel to and from pumping stations and pipelines. Under the Collective Bargaining Agreement, he was permitted a fifteen-minute morning break, a thirty-minute lunch break, and a fifteen-minute afternoon break.
As recorded on a monitored navigation system installed in the CCMUA truck, on the morning of November 15, 2005, Stallworth left the pumping station and went to a convenience store two blocks away. He remained there for approximately one hour and fifteen minutes-one hour longer than the fifteen-minute morning break he was authorized to take. He ate breakfast, played the lottery, and socialized with patrons and staff. The CCMUA terminated Stallworth's employment based on the misconduct and his disciplinary history.
Stallworth's appeal to the Commission was referred to the Office of Administrative Law, where a contested case hearing was conducted. At the hearing, Stallworth testified that he often took his morning and lunch breaks together to ensure he had enough time to eat in the morning for the proper management of his diabetes. The ALJ rejected Stallworth's explanation because it had not previously been offered as an excuse and because that still left him thirty minutes late. The ALJ found that Stallworth's misconduct violated two CCMUA "Critical Rules." With regard to Stallworth's disciplinary history, the ALJ noted sixteen former charges, including fourteen "Critical Rule" violations, sustained against him between 1993 and 2006. While recognizing the concept of "progressive discipline," the ALJ found the incident at hand egregious enough to warrant removal even without consideration of Stallworth's prior history. In addition to the act of taking an hour-and-fifteen minute break during a fifteen-minute break period without notice to anyone, the ALJ noted that having the CCMUA truck parked in front of a store for that time visible to the public was contrary to the CCMUA's interests and adversely affected the public's perception of the agency.
The Commission concluded that the penalty imposed was too harsh, and modified it from removal to a four-month suspension. The Commission took into account Stallworth's record of discipline, but characterized it as including only one major disciplinary action-a fifteen-day suspension-and several minor disciplinary actions.
In an unpublished opinion, the Appellate Division recognized the level of deference owed to the Commission's final decision and its expertise in the area of employee discipline, but it was unable to reconcile Stallworth's disciplinary history with the Commission's characterization of it as consisting of primarily "minor" offenses. It also expressed concern that the misconduct appeared to reflect a pattern of repeating the same offense. The panel determined to reinstate the termination. The Supreme Court granted certification. 203 N.J. 438 (2010).
HELD: In imposing discipline, the Civil Service Commission did not adequately consider the public employee's entire record of misconduct and disregarded its obligation to state with particularity its reasons for rejecting the Administrative Law Judge's findings and conclusion. The matter is remanded to the Commission for reconsideration and a more thorough explanation of the Commission's ultimate decision.
1. To reverse an administrative agency's determination, an appellate court must find the agency's decision to be arbitrary, capricious or unreasonable, or not supported by substantial credible evidence in the record as a whole. A reviewing court may not substitute its own judgment for the agency's even though the court might have reached a different result. This is particularly true when the issue under review is directed to the agency's special expertise, such as administrative sanctions. When reviewing administrative sanctions, appellate courts should consider whether the punishment is so disproportionate to the offense as to be shocking to one's sense of fairness. (Pp. 13-15)
2. The concept of progressive discipline promotes proportionality and uniformity in disciplining public employees. Although a single instance of aberrant conduct may not itself be sufficient for dismissal, numerous occurrences, even though sporadic, may warrant termination. For this reason, an employee's past record can be considered in fashioning the appropriate penalty. Progressive discipline is utilized in two ways: 1) to ratchet-up or support imposition of a more severe penalty for a public employee who engages in habitual misconduct; and 2) to mitigate the penalty for an employee who has a record largely unblemished by significant disciplinary infractions. However, progressive discipline is not a fixed and immutable rule because some disciplinary infractions are so serious that removal is appropriate notwithstanding a largely unblemished prior record; for example, when the employee's position involves public safety and the misconduct risks harm to persons or property. (Pp. 15-18)
3. Here, it is not possible to determine whether the Commission properly exercised its authority. There was considerable disagreement as to what constitutes a major infraction. The Appellate Division employed the CCMUA's definition of "major infraction," defined as any violation of a Workplace Critical Rule, which caused it to conclude that Stallworth had up to fourteen major infractions. On the other hand, the Commission equated a "major infraction" with the term "major disciplinary action," which is defined by statute as a minimum suspension of more than five days. Furthermore, under the concept of progressive discipline, one act of misconduct may result in "minor discipline" merely because it was a first offense, whereas the same misconduct, if repeated, could justify the imposition of "major discipline" including termination. Such categorizations do not provide the type of explanation needed by a reviewing court. The contextual nature of the prior offenses is a relevant consideration, and the lack of it in this case renders incomplete and inadequate the Commission's imposition of discipline. (Pp. 18-21)
4. To assure proper progressive discipline, an employee's past record with emphasis on the reasonably recent past should be considered, including the totality of the employee's work performance and all prior infractions. The Commission gave short shrift to Stallworth's entire disciplinary record and emphasized the existence of a single major disciplinary action that resulted in a fifteen-day suspension. The Commission also did not address the CCMUA's concerns about the effect of reinstating Stallworth on deterring other employees from similar misconduct and its need to protect its public image by appropriately disciplining its employees. However, because the impact of the prior disciplinary record was a subject particularly within the expertise of the Commission, the Appellate Division exceeded its authority by reinstating the CCMUA's termination decision. The panel should have remanded the matter to the Commission to permit a reexamination of the record and an explanation that justified the rejection of the appointing authority's termination of Stallworth. The Court orders a remand and directs the Commission to address the discrepancy in evaluating the disciplinary record, explain with transparency its evaluation of Stallworth's disciplinary record, and address the CCMUA's asserted concerns about the impact of reinstatement. (Pp. 21-24)
The judgment of the Appellate Division is AFFIRMED, AS MODIFIED, and the matter is REMANDED to the Civil Service Commission for reconsideration consistent with the principles set forth in this opinion.
CHIEF JUSTICE RABNER and JUSTICES LONG, LaVECCHIA, ALBIN, RIVERA-SOTO and HOENS join in JUDGE STERN's opinion.
IN THE MATTER OF ANTHONY STALLWORTH, CAMDEN COUNTY MUNICIPAL UTILITIES AUTHORITY,
JUDGE STERN (temporarily assigned) delivered the opinion of the Court.
In this appeal involving the discipline of a public employee, we consider whether the Appellate Division exceeded its proper scope of review when it reversed the penalty imposed by the Civil Service Commission (Commission)*fn1 and reinstated the penalty imposed in the initial decision of an Administrative Law Judge (ALJ). In addressing this issue, we must re-examine the principles of "progressive discipline," taking into account the Commission's expertise in promoting statewide uniformity in the discipline of civil servants as well as a public agency's need to deter employee misconduct and preserve its public image. The Commission reversed a determination of a public body to terminate petitioner's employment, and, although we agree with the Appellate Division that the Commission's action was not sufficiently justified by the record, we also conclude the Appellate Division exceeded its authority by reinstating the termination as ordered by the appointing authority. We, therefore, modify the judgment of the Appellate Division and remand the matter for further proceedings before the Commission.
Petitioner Anthony Stallworth was a pump station operator for the Camden County Municipal Utilities Authority (CCMUA). The CCMUA is a regional authority that handles wastewater collection and treatment in Camden County. It controls twenty-five pumping stations, sixteen metering stations, and 110 miles of pipes that connect the stations to a central treatment plant in Camden County. The CCMUA employs pump operators to assist with oversight and maintenance.
At the time of the incident giving rise to this case, Stallworth had been employed by the CCMUA for seventeen years. As part of his job responsibilities, he was provided with a marked CCMUA truck in which he traveled to and from pumping stations and pipelines. The truck had a navigation system that could be monitored by the CCMUA. On the morning of November 15, 2005, Stallworth left the pumping station to which he was assigned and went to a convenience store two blocks away. He remained there for approximately one hour and fifteen minutes --one hour longer than the fifteen-minute morning break he was authorized to take.*fn2
Stallworth was subsequently served with disciplinary charges,
including "(1) falsification of official records or giving false
information for official records; (2) leaving the work area without
permission during work hours; and (3) personal use of a company
vehicle." Based on these charges and his disciplinary history, the
CCMUA terminated Stallworth's
employment, resulting in his appeal to the Commission,*fn3
and a referral to the Office of Administrative Law, where a
"contested case" hearing was conducted. See N.J.S.A. 52:14B-9, -10.
The evidence adduced before the ALJ demonstrated the following:
Pump operators are subject to a Collective Bargaining Agreement (CBA). The CBA allots pump operators a morning break of fifteen minutes, a lunch break of thirty minutes, and an afternoon break of fifteen minutes. However, pump operators must often work through a break or lunch, and other pump operators testified that it ...