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In the Matter of

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


June 8, 2012

IN THE MATTER OF ANDREW BLAIR.

On appeal from the State of New Jersey Department of Human Services.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued November 15, 2011

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.

I.

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 facts and adjudicated the matter as a conviction of [s]imple

[a]ssault.

I have given much thought to the information provided to me, both in your letter and during my conversation with Carolyn Wade, President, CWA Local 1040. While I appreciate that [appellant] has completed all of the tenets of his court-ordered probation, I do not conclude that the circumstances of [appellant's] guilty plea meet the criteria for reconsideration of his employment with this Department.

For these reasons, I cannot consider [appellant] for reemployment in the [DHS]. Appellant appealed, and by leave granted, DHS filed an Amplification of Reasons for its decision not to reinstate appellant based on his rehabilitation.

In the amended decision, DHS for the first time invoked the provisions of N.J.S.A. 30:4-3.5b, found that appellant did not comply with the requirements of that provision and concluded that appellant was not entitled to reinstatement to his former position. DHS stated that:

Pursuant to [N.J.S.A. 30:4-3.5b], an individual may be able to avoid disqualification under the provisions of subsection (a) above if he or she can affirmatively demonstrate to the Commissioner, by clear and convincing evidence, that he or she has been rehabilitated; however, [N.J.S.A. 30:4-3.5b] does not apply to individuals who are currently serving an active criminal sentence.

Appellant was placed on probation for one year after his guilty plea. DHS noted that appellant was still serving that criminal sentence and, according to DHS, was not entitled to prove rehabilitation because the rehabilitation provision only applies to individuals whose criminal sentences have been fully served. DHS found that "[t]he plain language of the Statute does not lead to any other conclusion, and it would be incongruous to conclude that an individual is rehabilitated when he or she has not completed the terms of the criminal sentence."

DHS also noted that N.J.S.A. 30:4-3.7b requires an individual to petition for a determination of rehabilitation within thirty days after the disqualification. DHS stated that if appellant had filed a petition for rehabilitation after his probation was completed, he would have been outside the thirty-day deadline mandated by N.J.S.A. 30:4-3.7b. Therefore, DHS again concluded that "the Legislature did not contemplate that an individual who was serving an active criminal sentence for a current conviction would be eligible to petition for rehabilitation" under N.J.S.A. 30:4-3.7b.

Despite this conclusion and without the benefit of a hearing, DHS considered each of the eight factors outlined in N.J.S.A. 30:4-3.5b and concluded that appellant was not rehabilitated. DHS described appellant's conduct as "a physical assault fueled by alcohol, poor judgment, lack of impulse control and lack of anger control which weighs against rehabilitation." Regarding whether the offense was isolated or repeated, DHS equivocated, saying "[i]t is unknown whether [appellant] has engaged in this kind of assaultive behavior on more [than] one occasion or not." DHS noted that appellant was fifty years old when the offense occurred, and commented that the offense "was not a youthful indiscretion[.]" DHS stated it had "legitimate and reasonable concerns about reinstating [at Woodbine] an individual with a history of violent behaviors towards others" given that facility's "fragile and vulnerable client population[.]" Finally, DHS again noted that appellant "had not yet completed his term of probation [and therefore] was unable to show that rehabilitation had occurred within the statutory required period of time." Citing the Act's requirement that a petition for a hearing to establish rehabilitation must be filed within thirty days of receiving an NOD, N.J.S.A. 30:4-3.7b, DHS refused to consider as evidence of rehabilitation any events that occurred more than thirty days after appellant's employment disqualification was finalized on November 30, 2009, including appellant's completion of his probation on August 2, 2010. This appeal followed.

On appeal, appellant asserts:

POINT I

AN APPELLATE COURT WILL REVERSE AN ADMINISTRATIVE AGENCY DECISION IF IT IS ARBITRARY, CAPRICIOUS OR UNREASONABLE.

POINT II

THE COMMISSIONER UNREASONABLY APPLIED N.J.S.A. 30:4-3.5 TO DISQUALIFY [APPELLANT] FROM EMPLOYMENT AT DHS.

A. THE STATUTE WAS INITIALLY ENACTED TO ENSURE DHS PROPERLY SCREENED JOB APPLICANTS AND PERFORMED CRIMINAL BACKGROUND CHECKS ON EMPLOYEES AS OF THE EFFECTIVE DATE OF THE ACT.

B. THE COMMISSIONER'S APPLICATION OF THE TIME LIMIT ESTABLISHED PURSUANT TO N.J.S.A. 30:4-3.7 WAS ARBITRARY AND CAPRICIOUS.

C. THE COMMISSIONER'S DECISION THAT [APPELLANT] HAD NOT SHOWN REHABILITATION WAS ARBITRARY, CAPRICIOUS, AND NOT BASED ON THE CREDIBLE EVIDENCE BEFORE HER.

1. THE COMMISSIONER ARBITRARILY DISREGARDED N.J.S.A. 30:4-3.5b(8), WHICH REQUIRED HER TO CONSIDER "ANY EVIDENCE OF REHABILITATION," REGARDING [APPELLANT'S] REHABILITATION.

2. THE COMMISSIONER'S APPLICATION OF N.J.S.A. 30:4-3.5b(6) TO [APPELLANT'S] REHABILITATION IS UNREASONABLE.

3. THE COMMISSIONER'S APPLICATION OF N.J.S.A. 30:4-3.5b(1) TO [APPELLANT'S] REHABILITATION IS UNREASONABLE.

4. THE COMMISSIONER'S APPLICATION OF N.J.S.A. 30:4-3.5b(7) TO [APPELLANT'S] REHABILITATION IS UNREASONABLE.

5. THE COMMISSIONER'S APPLICATION OF N.J.S.A. 30:4-3.5b(2) TO [APPELLANT'S] REHABILITATION IS UNREASONABLE.

6. THE COMMISSIONER'S APPLICATION OF N.J.S.A. 30:4-3.5b(4) AND (5) TO [APPELLANT'S] REHABILITATION IS UNREASONABLE.

7. THE COMMISSIONER'S CONSIDERATION OF THE FACTS UNDER N.J.S.A. 30:4-3.5b WAS ARBITRARY, CAPRICIOUS, AND NOT SUPPORTED BY CREDIBLE EVIDENCE IN THE RECORD.

POINT III

TO REMEDY THE ARBITRARY NATURE OF THE COMMISSIONER'S HANDLING OF THIS MATTER, THE ISSUE OF WHETHER OR NOT [APPELLANT] HAS BEEN REHABILITATED SHOULD BE HEARD AT THE OFFICE OF ADMINISTRATIVE LAW.

II.

Our standard of review of agency decisions is well-settled. Unless we find that the agency's action was arbitrary, capricious, or unreasonable, the agency's ruling will not be disturbed. In re Carter, 191 N.J. 474, 482 (2007); Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980); In re Martinez, 403 N.J. Super. 58, 74-75 (App. Div. 2008). We will give deference to such decision, unless it is not only arbitrary and capricious but also unsupported by substantial credible evidence in the record as a whole. Carter, supra, 191 N.J. at 482. See also In re Distribution of Liquid Assets, 168 N.J. 1, 10-11 (2001). Accordingly, we must determine whether the agency's findings could reasonably have been reached on sufficient credible evidence in the record, "considering the proofs as a whole, with due regard to the opportunity of the one who heard the witnesses to judge of their credibility." In re Taylor, 158 N.J. 644, 656 (1999) (quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)) (internal quotation marks omitted).

It is not our function "'to substitute [our] independent judgment for that of [an] administrative' agency," such as the Board, "'where there may exist a difference of opinion concerning the evidential persuasiveness of the relevant [proofs].'" In re Certificate of Need Granted to the Harborage, 300 N.J. Super. 363, 379 (App. Div. 1997) (alterations in original) (quoting First Sav. & Loan Ass'n v. Howell, 87 N.J. Super. 318, 321-22 (App. Div. 1965), certif. denied, 49 N.J. 368 (1967)). Further, we should not "'weigh the evidence, determine the credibility of witnesses, draw inferences and conclusions from the evidence, or resolve conflicts therein.'" Ibid. (quoting De Vitis v. N.J. Racing Comm'n, 202 N.J. Super. 484, 489-90 (App. Div.), certif. denied, 102 N.J. 337 (1985)).

The difficulties inherent in this appeal arise as a result of the attempts to reinstate appellant by proceeding on two separate yet discrete tracks. In the first instance, appellant availed himself of his contractual remedies, proceeding first to mediation. We have been informed that the next step --arbitration -- is being held in abeyance pending resolution of this appeal.

In the second instance, appellant sought reinstatement, and DHS responded both procedurally and substantively. The remedy of reinstatement pursuant to N.J.S.A. 30:4-3.7, however, is a discrete remedy not directly related to the remedy being pursued by appellant under the terms of the CNA.

Although appellant appealed from the September 27, 2010 decision denying reemployment, DHS subsequently moved for a remand to provide an Amplification of Reasons, which resulted in its amended decision of February 3, 2011, wherein DHS addressed the merits of the denial of reemployment. As such, we deem it appropriate to address both the procedures utilized and the merits of the denial of relief under N.J.S.A. 30:4-3.7.

According to respondent, appellant was terminated under the Act. The Act serves to disqualify for employment at DHS institutions those persons who have been convicted of certain enumerated offenses. See N.J.S.A. 30:4-3.5a. Among its other provisions, the Act requires a criminal history background check of all prospective employees as well as a bi-annual check of those individuals employed at the facility. If such an offense is revealed by the criminal history check, the employee is disqualified from employment.

The Act is not unforgiving. N.J.S.A. 30:4-3.5b provides that, notwithstanding the conviction:

[N]o individual shall be disqualified from employment under this act on the basis of any conviction disclosed by a criminal history record background check performed pursuant to this act if the individual has affirmatively demonstrated to the Commissioner of Human Services clear and convincing evidence of his rehabilitation. In determining whether an individual has affirmatively demonstrated rehabilitation, the following factors shall be considered:

(1) The nature and responsibility of the position which the convicted individual would hold;

(2) The nature and seriousness of the offense;

(3) The circumstances under which the offense occurred;

(4) The date of the offense;

(5) The age of the individual when the offense was committed;

(6) Whether the offense was an isolated or repeated incident;

(7) Any social conditions which may have contributed to the offense; and

(8) Any evidence of rehabilitation, including good conduct in prison or in the community, counseling or psychiatric treatment received, acquisition of additional academic or vocational schooling, successful participation in correctional work-release programs, or the recommendation of persons who have had the individual under their supervision.

If DHS disqualifies an employee from employment, the Act establishes the appropriate recourse and provides an opportunity for the employee to demonstrate rehabilitation. Among other procedural requirements, DHS is obligated to provide an NOD to the employee of such disqualification. N.J.S.A. 30:4-3.7a. Neither party disputes that no such notice was provided.

The Act further provides that the employee has "30 days from the date of written notice of disqualification to petition [DHS] . . . to establish his rehabilitation under subsection b. of section 2 of [the Act]. N.J.S.A. 30:4-3.7b. Even more critical, the Act provides for a hearing on the merits of such application. Ibid.

When interpreting a statute, our task "is to determine and effectuate the Legislature's intent." Int'l Schs. Servs., Inc. v. W. Windsor Twp., 207 N.J. 3, 17-18 (2011) (citing In re Petition for Referendum on Trenton Ordinance 09-02, 201 N.J. 349, 358 (2010)). In construing a statute, we must first consider its plain language. Turner v. First Union Nat'l Bank, 162 N.J. 75, 84 (1999) (citing Merin v. Maglaki, 126 N.J. 430, 434 (1992)). When the provisions are clear and unambiguous, they should be given their literal significance, "unless it is clear from the text and purpose of the statute that such meaning was not intended." Ibid. (citing State v. Butler, 89 N.J. 220, 226 (1982)).

However, "where a literal interpretation would create a manifestly absurd result, contrary to public policy, the spirit of the law should control." Perrelli v. Pastorelle, 206 N.J. 193, 200 (2011) (citations omitted). "[W]hen all is said and done, the matter of statutory construction . . . will not justly turn on literalisms, technisms, or the so-called formal rules of interpretation; it will justly turn on the breadth of the objectives of the legislation and the commonsense of the situation." Ibid. (quoting Jersey City Chapter of the Property Owner's Protective Ass'n v. City Council of Jersey City, 55 N.J. 86, 100 (1969)).

Above all, we must "seek to effectuate the 'fundamental purpose for which the legislation was enacted.'" Twp. of Pennsauken v. Schad, 160 N.J. 156, 170 (1999) (quoting N.J. Builders, Owners and Managers Ass'n v. Blair, 60 N.J. 330, 338 (1972)). See also Turner, supra, 162 N.J. at 84 ("[t]he court's ultimate goal in construing a statute is to ensure that the Legislature's plan is effectuated"). Where a statute does not expressly address a specific situation, we interpret it "consonant with the probable intent of the draftsman had he anticipated the matter at hand." Schad, supra, 160 N.J. at 170 (internal quotation marks and citation omitted).

Issues of statutory construction are questions of law and are reviewed de novo on appeal. In re Liquidation of Integrity Ins. Co., 193 N.J. 86, 94 (2007) (citation omitted).

In considering appellant's various contentions, DHS determined that: (1) while it did not serve a written NOD, the Preliminary, Amended Preliminary and Final Notice of Disciplinary Action served the same purpose; (2) the attempt to establish rehabilitation cannot be exercised by an employee who is currently serving a sentence on the disqualifying offense; and (3) appellant failed to demonstrate his rehabilitation within the thirty-day statutory period and is now statutorily barred from doing so.

Although the Act is silent as to its application to those disqualified employees currently serving a sentence, DHS's position in that regard makes good sense. We acknowledge that the Legislature would hardly deem an employee who is serving a current sentence as an appropriate candidate for rehabilitation during the period of the sentence. However, we disagree that by including the thirty-day limitation for seeking rehabilitation, the Legislature intended to bar an employee who subsequently completes a sentence from seeking the benefit of demonstrating rehabilitation.

DHS's position is that a candidate for rehabilitation, such as appellant, cannot make such an application during the pendency of his sentence (which here lasted longer than thirty days) but then is barred from relief after the sentence is completed because the application for reconsideration is necessarily made beyond the thirty-day limitation period set forth in the statute. If we were to accept DHS's position, the scenario would create a circumstance colloquially referred to as a "Catch-22."*fn4 We cannot ascribe this illogical result to the intention of the Legislature in enacting a rehabilitation provision that by its terms applies to current employees. See Perrelli, supra, 206 N.J. at 200. The statute is devoid of any language or intent supporting DHS's position that the statute was not "meant to apply to current employees serving current sentences," but who later satisfactorily complete the sentence.

In fact, N.J.S.A. 30:4-3.7b applies, by its terms, to "employee[s]."

We also cannot accept DHS's view that its obligation to inform appellant of his disqualification was satisfied by the filing and service of a Preliminary or Final Notice of Disciplinary Action. As is apparent from the complex procedural posture of this dispute, these various notices triggered the advancement of disciplinary proceedings within the context of the CNA. An NOD has a distinctly different procedural trajectory and, in turn, triggers various procedural protections for the employee, including a hearing to consider an employee's petition for rehabilitation. See N.J.S.A. 30:4-3.5b, -3.7b.

The absence of the service of an NOD is fatal to the further proceedings and substantive consideration undertaken by DHS in assessing the eight statutory factors set forth in N.J.S.A. 30:4-3.5b. We need not review these factors in depth, except to note that some of the conclusions reached by DHS are not supported by the record. For example, DHS's equivocation as to whether the assault was an isolated incident when it noted that "[i]t is unknown whether [appellant] has engaged in this kind of assaultive behavior on more [than] one occasion or not," is contrary to the only evidence in the record, which was the mediator's finding that "[t]he incident in this matter was isolated in nature."

Also, DHS's view that it cannot consider as evidence of rehabilitation events that occurred outside of the thirty-day window for filing a petition has no statutory basis. The thirty-day period is a procedural limitation imposed on the commencement process of consideration of an application for rehabilitation, not a limitation on the scope of evidence. This is apparent from the language of the statute. The same section provides for administrative review in the OAL, pursuant to the Administrative Procedure Act, N.J.S.A. 52:14B-1 to -15, hardly a process that is completed within thirty days.

In promulgating the Act, the Legislature recognized that disqualifying violations could be identified in gross terms. However, individual employees might engage in conduct so isolated or aberrational that the policies animating the Act would not be served without an adequate mechanism for considering appropriate evidence establishing that these employees should not be separated from government service.

We conclude that appellant is entitled to the procedural protections of N.J.S.A. 30:4-3.7b, and respondent is obligated to serve an NOD. We further conclude that, based on the limited record before us, respondent's actions were arbitrary, capricious and unreasonable, and that the appropriate relief here is for appellant to have the benefit of a full hearing. As we have noted, the statute provides for a hearing before the OAL. Accordingly, we reverse the findings that appellant failed to file a timely petition for a hearing or to establish evidence of rehabilitation under the statute. We make no finding that he met his affirmative burden of establishing rehabilitation but remand for a hearing in the OAL to determine that issue.

Reversed and remanded for proceedings consistent with this opinion. We do not retain jurisdiction.


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