On appeal from the New Jersey Civil Service Commission, Docket No. 2005-777.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: November 30, 2011
Before Judges Axelrad and Sapp-Peterson.
Waldemer Stryz, a Hudson County Department of Corrections Officer, appeals from a final determination of the Civil Service Commission (Commission) sustaining the charges of insubordination, conduct unbecoming a public employee, neglect of duty, failure to perform duties and other sufficient cause in failing to ensure the computer was used properly during his shift, and imposing a sixty-day suspension. He argues the final decision of the Commission was not based on substantial and credible evidence, did not adhere to the forty-five-day statutory time frame, and was improperly remanded to the Office of Administrative Law (OAL) for a second hearing. He also challenges his enhanced penalty as excessive. We are not satisfied the charges were based upon the evidence and reverse.
On April 30, 2004, the Hudson County Department of Corrections (the County) issued Hudson County Corrections Officers Stryz and Hairo Solis each a Preliminary Notice of Disciplinary Action (PNDA). The officers were charged with insubordination; conduct unbecoming a public employee; neglect of duty; incompetency, inefficiency or failure to perform duties; and other sufficient cause, N.J.A.C. 4A:2-2.3 (2), (6), (7), (1), and (11). The specification in Stryz's PNDA provided: On February 29, 2004 and March 1, 2004, during the 12-8 shift, while assigned to central control, along with Officer Solis, the computer system for the alarms was bre[a]ched and was used to play games, causing a program error on the alarm system, whereas the alarms could not be heard through the speakers.
After a hearing on June 15, 2004, the County issued a Final Notice of Disciplinary Action (FNDA) on July 21, 2004, which suspended Stryz for thirty days starting July 31, 2004. Stryz appealed the disciplinary charges and suspension to the Merits System Board (Board) pursuant to N.J.A.C. 4A:2-4.2. Solis pled guilty to a violation of Hudson County Correctional Center Rule 3.6, failure to report violations of law or rules, on August 11, 2006, and in a settlement agreement with the Board, received a reduced penalty of only ten days suspension.
The matter was transferred to the OAL and a hearing was conducted before an Administrative Law Judge (ALJ) on February 13, 2008.*fn1 The ALJ issued her initial decision on April 17, 2008, making findings of fact and concluding the County failed to sustain its burden of proof in establishing that Stryz had played games on the computer during his shifts which caused the breach of the computer system. She therefore recommended the County's determination to impose a thirty-day suspension be reversed.
On May 2, 2008, the County filed exceptions with the Board, claiming the ALJ misconstrued the charges against Stryz, which were not limited to whether he was playing games on the computer, and therefore erred in her decision. The Board was persuaded by the appointing authority's exceptions and remanded as follows:
It is necessary to remand this matter in order for the ALJ to reevaluate the record in light of this broader reading of the charges and determine whether the evidence supports a finding that the appellant was responsible for ensuring that the computer was not used improperly during his shifts on February 29, 2004 and March 1, 2004. In so doing, the ALJ must also provide additional details regarding the circumstances surrounding the breach of the computer, including the appellant's specific duties during the shifts in question and the physical layout of the Center Control Room, in order to determine whether the appellant could or should have been aware of the improper use of the computer at the specified times.
Additional testimony was taken at the remand hearing on May 7, 2010. In her May 21, 2010 decision, the ALJ concluded the County had sustained its burden of proof in establishing that Stryz was responsible for ensuring the computer systems were not improperly used and he failed to carry out this duty on the dates in question. She imposed a greater sanction than that imposed by the appointing authority -- an enhanced penalty of a sixty-day suspension.
Stryz filed a letter of exceptions with the Commission, asserting error by the ALJ in her decision and requesting a dismissal, or mitigation of his punishment. The Commission issued its final administrative action on June 24, 2010, adopting the ALJ's decision without further explanation. This appeal ensued.