February 10, 2012
IN THE MATTER OF L.Y.V., MOUNT HOLLY TOWNSHIP.
On appeal from the New Jersey Civil Service Commission, Docket No. 2010-1168.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Submitted September 6, 2011
Before Judges Alvarez and Nugent.
L.Y.V. appeals from a final decision of the Civil Service Commission (the Commission) that upheld her removal from her position as a Mount Holly Township police officer. She contends the Commission's decision was arbitrary, capricious and unreasonable because: (1) her removal was a sanction disproportionate to her infractions; (2) the Commission relied upon evidence wrongfully admitted during her administrative law hearing; and (3) the Commission misinterpreted a Mount Holly Township Police Department (MHPD) rule. For the reasons that follow, we reject her contentions and affirm.
L.Y.V. was hired by the MHPD in April 2005. During her years of service L.Y.V. was trained to respond to domestic violence situations, and learned the rules and regulations concerning domestic violence investigations and arrests. In February 2009, while assigned to the records department due to her pregnancy, L.Y.V. missed a day of work because she had been injured at her home during an altercation with her mother.
L.Y.V. lived with her son, mother, aunt, grandmother, and other relatives in a house that she and her aunt owned. On the morning of February 17, 2009, shortly before leaving for work,
L.Y.V. became embroiled in a verbal altercation with her mother. Although the accounts of the incident varied, L.Y.V. testified that the altercation ended after she threw a shoe at her mother and her mother struck her on the head with an object, causing her head to bleed.
Following the altercation L.Y.V. noticed a large lump on her head and a scratch on her face; she noted that it "looked like I was assaulted." Aware that the police were required to arrest anyone who caused an injury during a domestic dispute, and believing that if she went to work her mother would be arrested, L.Y.V. called the Chief of the MHPD and told him she had "slipped down a couple stairs" and was going to call her doctor. She did, in fact, call her doctor, who assured her that her pregnancy was not at risk and told her to come in if she continued to feel ill. After speaking with the doctor, she called a Detective Lieutenant with the MHPD and told him she had fallen down the stairs, had spoken with her doctor, and would not be coming to work.
Later that day L.Y.V. told her mother to find another place to live. This sparked another argument that escalated into the women shoving and striking each other, and "ended up [with them] tumbling around." During the altercation L.Y.V.'s mother bit L.Y.V.'s finger. After L.Y.V.'s grandmother and brother separated them, L.Y.V.'s mother left the house, went to the Florence Township Police Department, filed a domestic violence complaint, and obtained a temporary restraining order (TRO) against L.Y.V. Thereafter, L.Y.V. filed a domestic violence complaint against her mother, but both parties subsequently dismissed the complaints.
On February 18, 2009, the appointing authority, MHPD, served L.Y.V. with a Preliminary Notice of Disciplinary Action (PND), which charged her with multiple offenses and suspended her pending disposition of the charges. The charges included both failure and inability to perform her duties, N.J.A.C. 4A:2-2.3(a)(1) and (3); neglect of duty, N.J.A.C. 4A:2-2.3(a)(7) and MHPD Rule of Conduct (Rule) 4.6.1; conduct unbecoming a public employee, N.J.A.C. 4A:2-2.3(a)(6), and conduct unbecoming a police officer under common law; misconduct, N.J.S.A. 40A:14-147; action off duty, MHPD Rule 4.1.3; and truthfulness, MHPD Rule 4.12.6. The PND specifications cited L.Y.V.'s involvement in the domestic violence incident, the complaint and TRO issued against her, and her two phone calls to her superiors in which she misrepresented the reason she could not come to work.
Following a hearing, the MHPD served L.Y.V. with a Final Notice of Disciplinary Action sustaining the charges and removing her from her position with the MHPD effective September 21, 2009. L.Y.V. filed an appeal with the Commission and the Office of Administrative Law, and her case was tried before an administrative law judge (ALJ). On March 3, 2010, the ALJ rendered her initial decision.
The ALJ concluded the MHPD had abandoned the failure and inability to perform charges, the parties having stipulated that (1) those charges were based on L.Y.V.'s inability to carry a weapon, and (2) the Prosecutor had yet to decide whether her weapon would be returned to her, a situation beyond her control. The ALJ next determined that it was not neglect of duty for L.Y.V. "to call in sick when she was entitled to the use of sick time, regardless of how she sustained the injury that was the reason for the use of sick time." Finding that L.Y.V. was entitled to take sick time for her physical injuries and emotional distress, the ALJ exonerated L.Y.V. of neglect of duty.
In contrast, the ALJ determined the MHPD had proved the charges of conduct unbecoming a public employee, misconduct, and violating the MHPD Rule requiring truthfulness. After considering L.Y.V.'s five prior disciplinary actions as well as mitigating circumstances, the ALJ concluded that removal was inappropriate and modified the sanction to a six-month suspension without pay.
L.Y.V. and the MHPD filed exceptions to the ALJ's initial decision. The Commission adopted the ALJ's findings of fact but rejected the ALJ's modification of the removal to a six-month suspension. Instead, the Commission upheld L.Y.V.'s removal.
In its decision, the Commission first explained that L.Y.V. had engaged in inappropriate and egregious behavior when she became involved in the physical and dangerous domestic violence incident with her mother. The Commission noted that the incident involved, among other things, throwing a shoe and an exchange of blows, conduct causing physical injuries to both L.Y.V. and her mother. The Commission also observed that L.Y.V. had been untruthful to two superior officers when she told them why she had to miss work.
The Commission next explained that L.Y.V. "was a short-term employee, having been a police officer for less than five years, and she had a significant record of prior discipline in the short time she had been employed." During her employment, L.Y.V. had been disciplined five times, three of which included "major" discipline, namely, a ten-day suspension in August 2007, and suspensions of fifteen and twenty days in August 2008. Although the Commission cited the mitigating factors found by the ALJ -- L.Y.V.'s volatile relationship with her mother that pre-dated the domestic violence incident, L.Y.V.'s pregnancy, her cooperation with law enforcement agencies, and her remorse -- the Commission determined that L.Y.V.'s prior disciplinary history and the egregious nature of the current offense warranted her removal. Applying the concept of progressive discipline and iterating that police officers are held to a higher standard than a civilian public employee, the Commission upheld MHPD's termination of L.Y.V.
Our review of a final agency decision is limited. In re Stallworth, 208 N.J. 182, 194 (2011). We "must defer to an agency's expertise and superior knowledge of a particular field," Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992), and we will "not ordinarily overturn such a decision 'in the absence of a showing that it was arbitrary, capricious or unreasonable, or that it lacked fair support in the evidence.'" In re Carter, 191 N.J. 474, 482 (2007) (quoting Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963)). When the agency's decision is supported by substantial evidence, "'a court may not substitute its own judgment for the agency's even though the court might have reached a different result.'" Id. at 483 (quoting Greenwood, supra, 127 N.J. at 513).
A decision is arbitrary and capricious when the agency's action is "willful and unreasoning . . . without consideration and in disregard of circumstances. Where there is room for two opinions, action is [valid] when exercised honestly and upon due consideration, even though it may be believed that an erroneous conclusion has been reached." Worthington v. Fauver, 88 N.J. 183, 204-205 (1982) (internal quotation marks and citation omitted).
In reviewing disciplinary decisions of administrative agencies, our deference applies not only to "whether a violation warranting discipline has been proven," but "'to the review of disciplinary sanctions as well.'" Stallworth, supra, 208 N.J. at 195 (quoting In re Herrmann, 192 N.J. 19, 28 (2007)). "Accordingly, when reviewing administrative sanctions, appellate courts should consider whether the punishment is so disproportionate to the offense, in the light of all of the circumstances, as to be shocking to one's sense of fairness." Ibid. (internal quotation marks and citations omitted).
L.Y.V. first contends the Commission's decision was arbitrary, capricious and unreasonable because her punishment --removal from her position -- was entirely disproportionate to her offenses. We disagree.
"In reviewing the decision of an administrative law judge, the agency head may reject or modify findings of fact, conclusions of law or interpretations of agency policy in the decision, but shall state clearly the reasons for doing so." N.J.S.A. 52:14B-10(c). Here, the Commission stated clearly its reasons for rejecting the ALJ's recommendation that L.Y.V. be suspended rather than removed. The record fully supports those reasons. The Commission acknowledged the mitigating factors cited by the ALJ, but determined they were outweighed by L.Y.V.'s egregious behavior, particularly in light of her prior disciplinary history. The Commission's decision is supported by substantial evidence in the record. In light of that evidence, we do not find that the punishment imposed by the Commission was so disproportionate as to be shocking to one's sense of fairness. Stallworth, supra, 208 N.J. at 195.
L.Y.V. next argues that the ALJ permitted the MHPD to present proof of events that occurred outside of the scope of the specifications in the PND. L.Y.V. emphasizes that the third paragraph of the specifications indicates she was charged at 9:00 p.m. with the domestic violence incident that occurred at approximately 11:00 a.m. She maintains that there were actually two incidents that occurred during the day, and the MHPD should not have been permitted to present proof concerning the second incident.
The specification to which L.Y.V. refers states:
On February 17, 2008 at approximately 2100 hours, Sgt. Correnti of the Florence Township Police Department contacted Lieutenant William Seitz. Sgt. Correnti reported to Lt. Seitz that P.O. L.Y.V. was involved in a domestic violence incident in Florence Township at approximately 1100 hours this date. At this time, a summons for simple assault had been issued against P.O. L.Y.V. under the Prevention of Domestic Violence Act. Sgt. Correnti also advised that the Honorable Gregory McCloskey, JMC had issued a temporary restraining order against P.O. L.Y.V., which included a prohibition for possessing weapons, specifically her duty weapon.
The specification provided plain notice to L.Y.V. that the PND was based in part on the domestic violence incident that resulted in the TRO being issued. L.Y.V. insists that the PND specification reference to 1100 hours was a reference only to the first episode of the domestic violence dispute. However, in her written statement to the Florence Township Police Department following the domestic violence complaint filed by her mother, L.Y.V. indicated that the incident began at approximately 11:30 a.m. She then proceeded to recount the events of the entire day without specifying timeframes.
The domestic violence incident encompassed both altercations between L.Y.V. and her mother. Considering the specification's references to the "domestic violence incident," the "summons for simple assault," and the court "issu[ing] a temporary restraining order," L.Y.V. had notice that the PND charges were based on the domestic violence incident in its entirety.
L.Y.V. also argues that the Commission misinterpreted the MHPD Rule concerning truthfulness. MHPD Rule 4.12.6 falls under the subsection "Judicial Appearance and Testimony," and provides: "Employees are required to be truthful at all times whether under oath or not. A violation of this section shall constitute a class I offense."
L.Y.V. did not raise this argument before the ALJ during the hearing or in her closing argument brief.*fn1 Rather, she admitted that she had an obligation under the department's rules and regulations to be truthful and that she violated that obligation. Moreover, though relying in part on the general duty of law enforcement officers to conduct themselves in a trustworthy manner, the Commission emphasized in its decision the domestic violence dispute and L.Y.V.'s prior disciplinary record as the reasons for its rejection of the ALJ's recommendation. In view of those considerations, we find no error in the Commission's decision.