On appeal from the State of New Jersey Department of Human Services.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Carchman and Nugent.
Appellant Andrew Blair, a sixteen-year employee of respondent Department of Human Services (DHS) at the Woodbine Development Center, serving as a Habitation Plan Coordinator, entered a plea of guilty to a disorderly persons offense --simple assault, N.J.S.A. 2C:12-1a. The victim of the assault was appellant's mother-in-law, and the incident occurred when both parties were home and intoxicated. Appellant, who had no prior criminal record, was sentenced to one year of probation.
Following appellant's plea and sentencing, appellant was removed from his public employment. He challenged the dismissal under his contract rights and also sought reinstatement under the rehabilitation provisions of the "Codey Bill," N.J.S.A. 30:4-3.4 to 3.9 (the Act). Respondent concluded that appellant was barred from employment since, among other reasons, at the time appellant sought re-employment, he was serving a "criminal sentence."*fn1
We now reverse and remand for a hearing to be conducted in the Office of Administrative Law (OAL). We conclude that appellant is entitled to a hearing to address the issue of rehabilitation and is not barred from pursuing such an application.
We present an expanded version of the facts and unique procedural history of this appeal.*fn2 Appellant worked at DHS as a Habilitation Plan Coordinator. During his sixteen years of State service, appellant had never been disciplined and had a good work record.
On August 1, 2009, appellant was intoxicated and became involved in an altercation with his mother-in-law. Appellant pled guilty to simple assault two days later. Thereafter, DHS served him with a Preliminary Notice of Disciplinary Action on August 21, 2009, based on two disciplinary charges: conduct unbecoming of a public employee and conviction of a criminal offense. DHS issued a Final Notice of Disciplinary Action on November 30, 2009. Pursuant to the terms of the parties' collective negotiations agreement (CNA), the Communications Workers of America AFL-CIO Local 1040 (Union or CWA) filed a grievance challenging appellant's termination.*fn3 Although appellant was served with disciplinary actions by respondent, he was never served with a Notice of Disqualification (NOD), N.J.S.A. 30:4-3.7.
In August 2010, pursuant to the parties' CNA, the parties mediated appellant's termination. The mediator recommended that DHS reinstate appellant. In support of this position, the mediator wrote a letter to DHS stating that appellant had "demonstrated rehabilitation as required by the Act." The mediator presented the following reasons in support of her recommendation:
(1) [Appellant was] a Habilitation Plan Coordinator at Woodbine Developmental Center since June 12, 1993. He has no direct contact with patients but is in the building with them . . . [.]
(2) [Appellant] pled guilty to a simple assault.
(3) [Appellant], his wife and mother-in-law returned home inebriated from a BBQ and [appellant], after a confrontation with his mother-in-law, pushed her into her room.
(4) Date of offense - August 1, 2009.
(5) [Appellant] was [fifty] years old at the time.
(6) This was an isolated incident.
(7) Yes, all participants had too much to drink.
(8) Regarding rehabilitation, I refer you to the attached letter from William Sheeran, Cape May County Probation Department, indicating that [appellant] has successfully been discharged from his probationary sentence on August 2, 2010.
Other correspondence in support of appellant's reinstatement argued that the incident was isolated, that he had a good work record, that he had successfully completed his probation, that he exhibited remorse for the incident, that he does not provide direct care to clients and that his record is free of any incidents of violence or abuse at the facility.
Appellant's probation officer, William Sheeran, indicated:
[Appellant] remained totally compliant in all phases of his case. He reported on time for every appointment, appeared for his counseling evaluation as ordered, passed all drug screens and pre-paid his fine six months in advance. Though [appellant] was devastated both emotionally and financially by his conviction, he always tried to remain positive and worked very hard at trying to get his life back in order . . . . [Appellant] has indicated on multiple occasions that his ultimate goal is to return to his job at the Woodbine State School upon completion of his sentence and for his sake I hope that this is possible.
Sheeran further stated that appellant had enrolled in an Alcoholics Anonymous (AA) program "in order to keep his life on track."
DHS responded by declining to determine whether appellant had been rehabilitated. In a September 27, 2010 letter, the DHS Commissioner said:
You presented details of the incident that resulted in [appellant's] conviction. It would be inappropriate for [DHS] to consider the factors involved in [appellant's] conviction; indeed, a court of law considered those ...