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In the Matter of Aletha

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


October 19, 2011

IN THE MATTER OF ALETHA CROSLAND, DEPARTMENT OF HUMAN SERVICES, TRENTON PSYCHIATRIC HOSPITAL.

On appeal from the Civil Service Commission, Docket No. 2010-363.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 21, 2011

Before Judges Graves and J. N. Harris.

Appellant Aletha Crosland (Crosland), a former human services technician at the Trenton Psychiatric Hospital, appeals from a final decision by the Civil Service Commission (Commission) dated February 26, 2010, upholding the termination of her employment. The Commission rejected certain factual findings of the Administrative Law Judge (ALJ) and the ALJ's recommendation to impose a ninety-day suspension. For the reasons that follow, we affirm.

On January 18, 2009, Crosland was involved in a physical altercation with A.T., a patient. As a result of the incident, Crosland was charged with conduct unbecoming a public employee, in violation of N.J.A.C. 4A:2-2.3(a)(6), and other sufficient causes for discipline, in violation of N.J.A.C. 4A:2-2.3(a)(11). She was also charged with physical abuse of a patient; inappropriate physical contact or mistreatment of a patient; and falsification, in violation of administrative orders issued by the Department of Human Services (DHS). The Preliminary Notice of Disciplinary Action, dated January 21, 2009, stated:

On 1/18/09 at approximately 9:55 am you engaged in a physical altercation with patient AT. Video shows that after AT points his finger toward you, you grabbed AT's face/neck until his back is up against the wall. You physically assaulted AT which resulted in injuries to the face and neck area of AT. Also, you falsified your statement indicating that AT attacked you when in fact you were the aggressor.

Following a departmental hearing, at which all charges were sustained, Crosland was permanently removed from her position. Crosland appealed the Final Notice of Disciplinary Action, and the case was transferred to the Office of Administrative Law (OAL) for a hearing.

Six witnesses testified at the hearing, including Crosland, and the ALJ viewed a videotape of the incident.*fn1 In a decision on December 3, 2009, the ALJ found that the appointing authority had proven the charges of inappropriate physical contact with a patient, and other sufficient cause for discipline by a preponderance of the evidence. However, the ALJ found that the appointing authority failed to sustain the charges of physical abuse of a patient, conduct unbecoming a public employee, and falsification. Consequently, the ALJ recommended to the Commission that Crosland be reinstated and suspended for ninety days.

The ALJ's decision was based in part on her determination that A.T. "lunged at" Crosland. In addition, the ALJ concluded there was insufficient proof "that the scratches and bruises to A.T. were caused" by Crosland because the videotape was "inconclusive as to what happened when the participants became entangled and twice fell to the floor."

On January 14, 2010, the Commission's request for additional time to render a decision was granted, and the time limit for issuing a final decision was extended until March 3, 2010. In a decision dated February 26, 2010, the Commission rejected the ALJ's finding that the videotape was inconclusive with respect to the allegation that Crosland physically abused A.T. Additionally, the Commission determined "the videotape captured sufficient visual evidence" to demonstrate that Crosland "was the aggressor in this situation and that her actions led to A.T. falling to the floor." The Commission concluded that "the action of the appointing authority in imposing the removal was justified."

On appeal to this court, Crosland presents the following arguments:

POINT I

THE DECISION OF THE ALJ "SHALL BE DEEMED ADOPTED AS THE FINAL DECISION" PURSUANT TO N.J.S.A. 52:14B-10 BECAUSE THE COMMISSION DID NOT ACT WITHIN THE REQUIRED FORTY-FIVE DAYS TO ISSUE A DECISION NOR TAKE ACTION TO EXTEND THE PERIOD OF TIME.

POINT II

THE APPELLANT'S REMOVAL MUST BE REVERSED BY THIS COURT AS THE DECISION OF THE COMMISSION IN REJECTING THE CREDIBILITY FINDINGS OF THE ALJ FAILED TO SHOW THAT THE FINDINGS WERE ARBITRARY, CAPRICIOUS OR UNREASONABLE OR WERE NOT SUPPORTED BY SUFFICIENT, COMPETENT, AND CREDIBLE EVIDENCE IN THE RECORD.

A. THE DECISION OF THE COMMISSION IN REJECTING THE FINDINGS OF THE ALJ BASED ON EYEWITNESS TESTIMONY THAT A.T. LUNGED AT APPELLANT FAILED TO SHOW THAT THE FINDING WAS ARBITRARY, CAPRICIOUS OR UNREASONABLE OR WAS NOT SUPPORTED BY SUFFICIENT, COMPETENT, AND CREDIBLE EVIDENCE IN THE RECORD.

B. THE DECISION OF THE COMMISSION IN REJECTING THE FINDINGS OF THE ALJ BASED ON EYEWITNESS TESTIMONY THAT A.T. WAS THE AGGRESSOR FAILED TO SHOW THAT THE FINDING WAS ARBITRARY, CAPRICIOUS OR UNREASONABLE OR WAS NOT SUPPORTED BY SUFFICIENT, COMPETENT, AND CREDIBLE EVIDENCE IN THE RECORD.

C. THE DECISION OF THE COMMISSION IN REJECTING THE FINDINGS OF THE ALJ BASED ON THE EXCEPTIONS OF THE APPOINTING AUTHORITY IS INAPPROPRIATE AND FAILED TO SHOW THAT THE ALJ FINDINGS WAS ARBITRARY, CAPRICIOUS OR UNREASONABLE OR WAS NOT SUPPORTED BY SUFFICIENT, COMPETENT, AND CREDIBLE EVIDENCE IN THE RECORD.

POINT III

THE APPELLANT'S REMOVAL MUST BE REVERSED BY THIS COURT AS THE DECISION OF THE CIVIL SERVICE COMMISSION WAS ARBITRARY, CAPRICIOUS, OR UNREASONABLE, OR WAS NOT SUPPORTED BY SUFFICIENT, COMPETENT, AND CREDIBLE EVIDENCE IN THE RECORD.

A. THE DECISION OF THE COMMISSION MUST BE REJECTED AS IT WAS NOT SUPPORTED BY SUFFICIENT, COMPETENT, AND CREDIBLE EVIDENCE IN THE RECORD.

B. THE CHARGES SUSTAINED BY THE COMMISSION ARE NOT SUPPORTED BY THE FAIR PREPONDERANCE OF THE CREDIBLE EVIDENCE AS ARTICULATED BY THE ALJ.

POINT IV

THE COMMISSION ERRONEOUSLY APPLIED THE PRINCIPLES OF PROGRESSIVE DISCIPLINE TO THIS CASE.

After considering these arguments in light of the record, the briefs, and the applicable law, we conclude they are without sufficient merit to warrant extended discussion in a written decision. R. 2:11-3(e)(1)(D) and (E). We therefore affirm the Commission's decision with only the following comments.

"In light of the executive function of administrative agencies, judicial capacity to review administrative actions is severely limited." George Harms Constr. Co. v. N.J. Tpk. Auth., 137 N.J. 8, 27 (1994) (citing Gloucester County Welfare Bd. v. N.J. Civil Serv. Comm'n, 93 N.J. 384, 390 (1983)). "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." Ibid.

Generally, "an appellate court will reverse the decision of the administrative agency only if it is arbitrary, capricious or unreasonable or it is not supported by substantial credible evidence in the record as a whole." Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). In determining whether the agency's action is arbitrary or unreasonable, we consider: (1) whether the agency's decision offends the State or Federal Constitution; (2) whether the action violated express or implied legislative policies; (3) whether there is substantial credible evidence in the record to support the agency's findings; and (4) whether the agency clearly erred in reaching a conclusion unsupported by relevant factors. George Harms Constr. Co, supra, 137 N.J. at 27 (citing Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963)); In re Larsen, 17 N.J. Super. 564, 570 (App. Div. 1952)).

"That deferential standard applies to the review of disciplinary sanctions as well." In re Herrmann, 192 N.J. 19, 28 (2007) (citing Knoble v. Waterfront Comm'n of N.Y. Harbor, 67 N.J. 427, 431 (1975)). The test for reviewing an administrative sanction is "whether such punishment is 'so disproportionate to the offense, in light of all the circumstances, as to be shocking to one's sense of fairness.'" In re Polk License Revocation, 90 N.J. 550, 578 (1982) (quoting Pell v. Bd. of Educ., 313 N.E.2d 321, 327 (1974)).

Crosland argues that the Commission erred when it rejected certain factual findings of the ALJ without first showing that the findings were arbitrary, capricious, or unreasonable, or not supported by sufficient, competent, and credible evidence in the record. More specifically, Crosland points to the Commission's rejection of the ALJ's finding that A.T. "lunged at" her, and the Commission's conclusion that she was the aggressor. Crosland's arguments are unpersuasive.

N.J.S.A. 52:14B-10(c) grants the reviewing administrative agency the power to: reject or modify findings of fact [made by the ALJ, but the agency] shall state clearly the reasons for doing so. . . . 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 different findings supported by sufficient, competent, and credible evidence in the record.

If the agency rejects or modifies findings of fact "as to issues of credibility of lay witnesses testimony," it must first determine that the ALJ's findings are "arbitrary, capricious or unreasonable or are not supported by sufficient, competent, and credible evidence in the record." N.J.S.A. 52:14B-10(c). "Ordinarily, it is not for a reviewing court or an agency head to disturb an ALJ's credibility determination." H.K. v. N.J. Dep't of Human Servs., 184 N.J. 367, 384 (2005).

In this case, both the ALJ and the Commission relied heavily on the videotape of the incident, and the ALJ did not make any specific findings regarding the credibility of the witnesses. Therefore, when the Commission made findings contrary to the ALJ, it was not statutorily required to first determine that the ALJ's findings were arbitrary, capricious or unreasonable, or were not supported by sufficient, competent, and credible evidence in the record. Rather, the Commission was only required to state clearly and with particularity its reasons for rejecting or modifying the findings of the ALJ and to make new findings based on sufficient, competent, and credible evidence in the record.

Based on a review of the videotape, the ALJ concluded A.T. "sw[u]ng[] his right hand at [Crosland], and sort of lung[ed] at her." However, based on its independent review of the videotape, the Commission concluded that A.T. "swung his right arm" at Crosland, but "[a]fter this occurred, the only movements A.T. made were in a direction away from [Crosland]." In addition, the Commission determined that the videotape showed that Crosland "was the aggressor," and the Commission "reject[ed] the ALJ's finding that the videotape [was] not conclusive with respect to the allegation that [Crosland] physically abused A.T." Thus, the Commission clearly stated with particularity its reasons for rejecting the ALJ's factual findings, and it based its own findings on sufficient, competent, and credible evidence in the record.

Crosland also argues the Commission erred when it decided that removal was the proper penalty. Administrative agencies are given discretion in determining the appropriate disciplinary sanctions, and a reviewing court should not "substitute its judgment for that of the agency. It can interpose its views only where it is satisfied that the agency has mistakenly exercised its discretion or misperceived its own statutory authority." Polk, supra, 90 N.J. at 578.

With regard to Crosland's penalty, the Commission noted that "inappropriate and abusive behavior cannot be tolerated and is worthy of severe sanction." The Commission stated:

[N]otwithstanding A.T.'s threats and abuse to [Crosland], employees in psychiatric institutions, whether on or off duty, are expected to exercise appropriate self-restraint when working with patients who cannot necessarily exercise personal restraint due to their conditions. Moreover, [Crosland]'s action of engaging with a psychiatric patient, when she had a path of retreat, demonstrates [Crosland]'s disregard of the patient's well-being and is not demonstrative of acceptable behavior for an individual in [Crosland]'s position.

The Commission also found that patient abuse tends to "destroy public respect in the delivery of governmental services," and that Crosland's actions were "sufficiently egregious [to] warrant her removal despite her lengthy record of service and largely unblemished prior record."

We conclude from our review of the record that the Commission's findings and conclusions are supported by substantial credible evidence and that the penalty of removal does not shock our sense of fairness. Consequently, the Commission's decision is neither arbitrary, capricious, nor unreasonable.

Affirmed.


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