On appeal from the New Jersey Civil Service Commission, Docket No. 2006-2792-I.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Argued telephonically November 9, 2010
Before Judges Fuentes, Gilroy and Nugent.
Petitioner Steven Winters appeals from the August 20, 2009 final decision of the Civil Service Commission (CSC) adopting the findings and recommendations of an Administrative Law Judge (ALJ) upholding Winters' sixty-day suspension and demotion from the rank of captain to firefighter for disclosing a confidential report. Respondent North Hudson Regional Fire and Rescue (NHRFR or the Department) cross-appeals, arguing that the ALJ's determination that Winters delivered the report to a clerical employee is not supported by the record, and seeking the imposition of a more severe penalty because Winters misrepresented that he delivered the report. We affirm.
Winters was a fire captain with the NHRFR. On December 13, 2003, he prepared a "correspondence report" recounting an anonymous firefighter's allegations that an NHRFR battalion chief had sexually harassed the reporting firefighter and other firefighters. Winters claims that he addressed the report to the NHRFR Chief, placed the report in an envelope marked "confidential," and delivered the envelope containing the report to the Chief's secretary.
In late 2004, Teaneck firefighter William Brennan telephoned Winters and explained that he represented an NHRFR firefighter who allegedly had been the victim of retaliatory discipline for objecting to the battalion chief's sexual harassment. Brennan asked Winters about any reports concerning the battalion chief. Winters gave him a copy of the December 13, 2003 report, believing that it would be used only at a NHRFR confidential, closed hearing. Winters did not receive permission from his superiors to give the confidential report to Brennan.
Brennan subsequently gave the report to a television news reporter without Winters' knowledge. The reporter investigated the report's allegations, but never aired them. Nevertheless, the reporter's investigation resulted in a departmental investigation which failed to produce evidence supporting the allegations of sexual harassment by the battalion chief.
On September 28, 2005, the NHRFR served Winters with a Preliminary Notice of Disciplinary Action (PNDA), in which it proposed to suspend him for sixty days and demote him to the position of firefighter, based on violations of eight of NHRFR's Rules and Regulations. The PNDA specifications charged Winters with providing a copy of the December 13, 2003 report to Brennan without authorization; falsely testifying during an internal investigation that he had submitted the report to the Chief's secretary on December 13, 2003; submitting the report to the Chief's secretary without following the chain of command; and failing to follow up to ensure that the report was received by the Chief.
After Winters waived a hearing, the NHRFR served him with a Final Notice of Disciplinary Action (FNDA) on December 5, 2005, suspending him for sixty days and demoting him to the position of firefighter effective immediately. Winters appealed to the Merit System Board*fn1 which transferred the matter on March 29, 2006, to the Office of Administrative Law as a contested case.
After eleven days of hearings, the ALJ assigned to the case found that Winters had delivered the December 13, 2003 report to the Chief's secretary, and thus did not testify falsely about delivering the report during the internal investigation. The ALJ also found that Winters bypassed the chain of command when he delivered the report to the Chief's secretary, and that he gave a copy of the report to Brennan without authorization from the NHRFR. Based on those factual determinations, the ALJ determined that Winters violated NHRFR Rule 16.130, which provides:
Members shall treat all official business and communications of the Department as confidential. They shall impart no information that has been published for Department use to any party or parties. They shall allow no transcript or copy to be made of any ...