January 19, 2012
IN THE MATTER OF WALDEMER STRYZ HUDSON COUNTY DEPARTMENT OF CORRECTIONS.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.
On appeal, Stryz argues:
THE FINAL ADMINISTRATIVE ACTION OF THE CIVIL SERVICE COMMISSION WAS NOT SUPPORTED BY SUBSTANTIAL CREDIBLE EVIDENCE IN THE RECORD AND CONSTITUTED AN ABUSE OF DISCRETION. POINT II
THE "FINAL" DECISION OF THE CIVIL SERVICE COMMISSION SHOULD BE VACATED AND THE FIRST "INITIAL" DECISION OF THE ADMINISTRATIVE LAW JUDGE DATED APRIL 17, 2008 SHOULD BE DEEMED THE FINAL DECISION OF THE [COMMISSION] BECAUSE THE [COMMISSION'S] UNILATERAL "REMAND" ORDER ISSUED 56 DAYS AFTER [THE] FIRST INITIAL DECISION EXCEEDED THE AGENCY'S STATUTORY AUTHORITY AND VIOLATED APPELLANT'S RIGHTS OF DUE PROCESS.
A. THE [COMMISSION'S] "REMAND" ORDER WAS ISSUED WITHOUT STATUTORY AUTHORITY AND IN VIOLATION OF STATE LAW MORE THAN 45 DAYS AFTER THE A.L.J.'S FIRST "INITIAL DECISION."
B. IN THE CIRCUMSTANCES OF THIS CASE, THE AGENCY'S "REMAND" ORDER VIOLATED APPELLANT'S RIGHTS TO FUNDAMENTAL FAIRNESS INHERENT IN DUE PROCESS AS IT APPLIES TO DISCIPLINARY PROCEEDINGS.
THE PENALTY IMPOSED IN THIS CASE WAS EXCESSIVE, AND VIOLATED PRINCIPLES OF PROGRESSIVE DISCIPLINE AND DISPARITY OF SANCTIONS.
Captain Stevette Scott, the unit commander, testified during the first hearing that, according to the logs, Stryz and Solis, two corrections officers of the same rank, worked the midnight to 8:00 a.m. shift in the Central Control Room (CCR) of the Hudson County jail on February 29, and March 1, 2004, and the supervisor on duty was Lieutenant Genes. She identified the logs as "a log book inside Central [that] tells me who was assigned during a certain shift, and if there was any unusual occurrences that happened during that shift."
Michael Woods, the County's field service engineer employed by Norment Security Group to monitor the computer security system, also testified. He explained that on April 14, 2004, he first became aware the computer for the security perimeter alarm system, located in the CCR, had frozen, causing the alarm to be inaudible from the computer speakers. During his troubleshooting investigation, Woods found two computer games, Hearts and Free Cell, minimized, but not closed, on the central control computer.
This prompted Woods to check a log storing a record of the computer's use, and he discovered the games were opened for use on February 29, 2004 at 5:15 a.m. and March 1, 2004 at 1:38 am, both times while Stryz and Solis were stationed in the CCR. Woods noted that the computer logs did not indicate how long these games were played, nor who played the games, but only when they were opened for use. He also explained that a password was needed in order to access these computer games, which only Norment Security employees knew. Woods never explicitly testified that the computer games caused the system to crash, only that "the computer was trying to communicate with the alarm system that it's integrated with, and the game I guess in the background was still running."
David Krusznis, Deputy Warden of Operations of the Hudson County Department of Corrections, testified at both hearings. He explained that the CCR is the "brain of the facility," and disabling the system could cause a serious breach of security, because when the alarm system is inoperable it cannot detect a breach of the security system.
During the first hearing, Krusznis testified regarding the responsibilities of the officers in the CCR, the layout of the CCR, and the contents of the log book from the nights in question. He discussed the officers' responsibilities to monitor the security cameras and television monitors and to ensure the integrity of the CCR was never compromised, referencing portions of Post Order #5 of the Post Order Manual (Manual). He stated that all officers are charged with the knowledge of the rules and regulations contained in the employee handbook and Manual for their positions.
Krusznis testified the log book reflected there was "[n]o OIC [Officer in Charge], Video or Armory Officer at Central" on either of the shifts in question. He testified about other entries in the log book on March 1, 2004, including that Lt. Genes, the OIC, made the FCC radio announcement and conducted a perimeter search. He did not know whether Lt. Genes entered the CCR to make the announcement or to obtain a radio or vehicle key for his perimeter check, but noted there was no log entry reflecting any of those situations. Krusznis also testified about the subsequent entry on March 1, 2004 of "CO Coyne on duty" and "CO Coyne taking out weapons and bullets for academy training." He explained that Coyne was the armorer; the armory was located in the CCR. Krusznis expressed the opinion that such entries into the CCR should have been specifically noted. He acknowledged that Stryz was not charged with improper log book entries.
Krusznis also stated there was a policy that officers were to be free of distraction from the performance of their duties. He opined that would include playing a computer game. He additionally opined that Stryz would have been obligated to report or intervene if Solis had played computer games on the dates in question. Both Krusznis and Stryz testified about the layout of the CCR.
Stryz had been employed as a corrections officer for over ten years. He explained he did not have a password to override the computer, nor was he ever given one, and he also noted he had seen the computer in the CCR crash before the April 14 instance.
He stated that he personally made all of the entries in the log books because, when he and Solis were on duty together, he was the log book officer and Solis monitored the computer. Stryz explained that the entries "no OIC" on both dates meant there was "no specific Supervisor assigned to Central Control that day." It did not mean no supervisor came into the CCR; to the contrary, he expressly recalled Lt. Genes entering on both days. He explained that Lt. Genes was a "heavy, heavy guy" who required a vehicle to perform a perimeter check and the vehicle keys and radios are kept in the armory in Central Control. He said other officers and supervisors had access to the CCR during that time and confirmed the armory was located there. Stryz did not record every time Lt. Genes entered and exited the CCR, nor did he do so with regard to any superior. According to Stryz, his entry of Lt. Genes making a radio announcement reflected that he was in the CCR, as the announcement is "usually made through the [CCR] radio." Lt. Genes also had access to the computer. Stryz did not observe him, Solis, or any other officer playing games on the computer and he had no knowledge of who played games on the nights in question.
Stryz explained about his job responsibilities, which included making entries in the log book, taking phone calls from posts inside the rest of the building at regular intervals, noting and verifying head counts, recording other information, and routinely viewing the security monitors. On cross-examination, Stryz explained his understanding of the procedure contained in post order #5 of the Manual for the Log Book, which states:
The Log Book Officer shall maintain a continuous chronological record of any and all events, incidents, situations of special interest, as well as a constantly updated record of issued equipment, zone alarms and radio transmissions that clear alarms.
Stryz disagreed that "the entry of any person into or out of [the CCR] is an event[,]" explaining "[m]y meaning of events is if there is a code or a fire or something like that." According to Stryz, that was the way he "was trained to write the Central Control log book" and was told to put any "unusual events that happened" inside the log book. He further explained that "[f]rom [his] training," he did not have to note in the log book when individuals entered and exited the CCR because "there's cameras outside each door going into Central, so they can see who is going into Central." Stryz testified that the entry reflecting that Lt. Genes conducted a perimeter check would also show he entered the CCR because he would have to "go in the back and take out a vehicle key, or grab a weapon or a radio out of the armory."
In her initial decision, the ALJ recommended dismissal of the charges against Stryz, reasoning that the "appointing authority's determination that [Stryz] engaged in inappropriate behavior in playing the computer games is based solely on the fact that in the opinion of the appointing authority[,] no one else could have done it." The ALJ found there was credible evidence in the record demonstrating that persons other than Stryz and Solis entered the CCR. She also found the record revealed "a number of weaknesses in the reliance of the appointing authority on the fact that officers were expected to follow precise procedures[,]" such as where the required radio announcements were to be made and whether or not perimeter checks were to be done on foot or in a vehicle.
The ALJ also found there was a "clear discrepancy" between Krusznis' interpretation of the Manual provisions as to what should be entered into the log book and what Stryz testified he was trained to enter into the log book. She summarized Stryz's testimony that officers entered and exited the CCR during the subject shifts and that he was not trained to record every person entering the facility but only "unusual" occurrences because the cameras reflect those who enter and exit, noting his testimony was not disputed. She further noted that Capt. Scott testified similarly that the log would tell her of any "mishaps." The ALJ thus concluded that the Manual, which was not followed in all respects, was not reliable evidence to support an inference that only Stryz could have played the computer games. She drew an adverse inference that Solis, who was disciplined for failing to report Stryz, did not testify that he saw Stryz playing the computer games and concluded the County failed to sustain its burden of proof.
Krusznis' testimony during the second hearing is very similar to that of the first. He discussed the layout of the CCR and the responsibilities of officers assigned there, expressly referencing the duties outlined in the Manual. When asked whether Stryz, as log book officer, did, in fact, "maintain a continuous chronological record of any and all events," he replied, "[n]ot knowing everything that went on through the night I can't make that assertion based on the document that I have here." He explained, "based on the report of Mike Wood there would be information that he did not log in chronological order [w]hat took place on both those nights." Krusznis did not know how long the computer games were played. He also acknowledged that the OIC is the supervisor who is in charge of the entire facility and is also responsible for the computers in the CCR.
Additionally, Krusznis acknowledged he did not know whether or not Stryz was trained specifically on how to monitor the computers or log entries, if he was trained at all, or who trained him, but claimed that certain aspects of the officers' jobs should, in essence, be intuitive, even if not explicitly set forth in the procedures.
Stryz's testimony was also similar to the first hearing. He additionally stated that he was not trained specifically by the County in the use of the computer in the CCR but knew that someone was not supposed to play a game on the computer. He further explained that he was not at the computer "24/7" watching what was going on there because he had the other duties of his log book, head counts, monitors, phones to answer, and had to view specific areas of the jail through the window of the CCR. Lt. Genes entered the CCR, as did other officers, to exchange batteries or to drop off incident reports for the OIC to log in the incident log book that was in the CCR. When asked about his log book notation on February 29, 2004, which stated, "[Lt.] Genes finished perimeter check," Stryz explained the reader could assume the OIC then returned to the CCR, and that he was never told to record it differently. Stryz did not know then, or to the present time, whether Lt. Genes, Solis, or anyone was playing a computer game.
In the ALJ's second decision, she incorporated her prior findings of fact, and made additional findings regarding Stryz's duties during the subject shifts and the specific layout of the CCR, reevaluating the record to determine whether Stryz was responsible for ensuring that the computer was not used improperly during his shifts. In her conclusion, the ALJ again noted that Stryz's interpretation of his duties were in contrast with that of Krusznis', stating:
According to [Stryz], his responsibility was to note in the log only situations of special interests; daily routine matters need not be noted. This testimony, however, was in contrast to that of Deputy Warden Krusznis, who testified that all personnel who entered Central Control should be noted in the log and, certainly, the comings and goings of specific personnel such as the officer in charge or the officer responsible for issuing equipment should be noted. These, however, were among the omissions in the log for the shifts in question. Accordingly, I FIND that [Stryz] was responsible by the specific provisions in the [Manual] for ensuring that the computer was not used improperly during his shifts on February 29 and March l, 2004. I further FIND that [the County] has demonstrated by a preponderance of evidence that [Stryz] failed to carry out his duties as set forth in the [Manual] during those shifts.
The ALJ further concluded:
the fact that there were omissions in his log; the fact that he
acknowledged never having seen the [Manual] prior to preparing for the
hearing, although he knew it was accessible to him;*fn2
are all factors which, cumulatively, result in [Stryz] being
in a position of failing to carry out his responsibilities as set
forth in the 
The ALJ found the County sustained the burden of proving the charges of conduct unbecoming a public employee, neglect of duty, and failure to perform duties, and recommended a sixty-day suspension.
Based on our review of the record and both opinions, it appears the ALJ based her second finding in favor of the County on the same reasoning as her first decision -- the discrepancy between Stryz's and Krusznis' testimony as to whether the log book officer was obligated to record merely situations of special interest or all entries and exits into the CCR. Yet, in her first decision, the ALJ found the appointing authority's reliance on the procedures set forth in the Manual, including the log book officer's obligation to "maintain a continuous chronological record of any and all events, incidents, situations of special interests, as well as a constantly updated record of issued equipment, zone alarms and radio transmissions that clear alarms[,]" was insufficient evidence of the officers' precise duties. She reasoned that so many procedures were honored in the breach and found compelling Stryz's undisputed testimony that he was not trained that the entry of every person into the CCR was an event to be recorded, as well as Capt. Scott's corroborating testimony that the log would inform her of any "mishaps."
The ALJ provided no explanation for arriving at the opposite conclusion after remand, now finding on essentially the same testimony that Stryz failed to carry out his responsibilities as set forth in the Manual. Nor in comparing Krusznis' testimony at the two hearings does there appear to be any basis upon which the ALJ could assume the Warden was more credible in interpreting the Manual than Stryz or Capt. Scott. Krusznis gave no indication that he had more knowledge of what the Manual entailed and, in fact, did not interpret the Manual; he simply restated what the log officers' duties were by referencing and reading from the Manual itself. Moreover, he presented no testimony at the remand hearing to contradict Stryz's representation about his training, nor any directives from the County clarifying the provision. At the end of the day, there was no definitive answer as to whether the log book officer was to specifically record every entry into and exit from the CCR, even if momentary and routine, or only those instances of special significance.
Had the remand hearing revealed, for example, that Krusznis or another testifying officer wrote the Manual or trained the log book officers, the ALJ's subsequent findings would have been supported by the record. However, the ALJ's sudden about-face adoption of Krusznis' statement of the log book officer's duties as contained in the Manual as definitively requiring the notation in the log of all personnel entering the CCR, without explanation, appears arbitrary and without basis in the record.
We recognize that our review of an administrative decision is limited. Henry v. Rahway State Prison, 81 N.J. 571, 579 (1980). However, we can overturn a final administrative decision if it is shown to be arbitrary, capricious or unreasonable, or in violation of legislative policies expressed or implied in the act governing that agency. Id. at 579-80; Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963). In determining whether an agency decision is arbitrary, capricious or unreasonable, the court must consider, (1) whether the agency followed the legislative authority; (2) whether there is substantial evidence in the record to support such a finding; and (3) whether, in applying the law to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made. In re Carter, 191 N.J. 474, 482-83 (2007) (quoting Mazza v. Bd. of Trs., 143 N.J. 22, 25 (1995)). We are not satisfied there was substantial evidence in the record to support the ALJ's finding that the County sustained its burden of proving the charges against Stryz. Accordingly, we reverse the Commission's June 24, 2010 final administrative action suspending Stryz. In view of our decision, we need not address the other points raised by Stryz.