On appeal from the Civil Service Commission, Docket No. 2010-363.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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:
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 ...