June 15, 2012
IN THE MATTER OF JEFFREY STRICH, DEPARTMENT OF ADMINISTRATION AND FINANCE, TOWNSHIP OF BRICK.
On appeal from the New Jersey Civil Service Commission, Docket No. 2010-660.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued March 6, 2012
Before Judges Messano and Kennedy.
Jeffrey Strich (Strich) appeals from the final administrative action of the Civil Service Commission (the CSC), accepting and adopting the findings and conclusions of the administrative law judge (ALJ), and affirming Strich's termination from employment with the Township of Brick (Brick). Considering the record and applicable legal standards, we affirm.
We discern the following facts developed during the hearing before the ALJ. Strich began his employment in Brick's tax assessor's office in 1999. Because he was repeatedly absent more days than permitted, Strich was initially counseled regarding the problem. In March 2008, however, disciplinary charges were lodged because of absenteeism, and Strich was suspended without pay for ten days. In July 2008, another set of disciplinary charges were filed on the same grounds, and, represented by his union representative, Strich and Brick entered into a settlement that included execution of a "last chance agreement" (LCA). This appeal focuses on events that occurred thereafter.
In the LCA, dated August 4, 2008, Strich acknowledged his prior absenteeism and that his continued employment was subject to certain conditions. Strich agreed to attend counseling with Brick's Employee Assistance Program (EAP), comply with its recommendations and "complete any program recommended by EAP." He also agreed to schedule any doctor's appointments "to accommodate his work schedule," and provide justification for any "appointment or test . . . within forty-eight . . . hours of the appointment or test." Strich would provide documentation for any "procedure/testing."
The LCA also provided that "[b]eginning January 1, 2009," Strich was "not permitted to utilize more than his annual accrual of sick time." Any violation of the above conditions would "be grounds for immediate termination of employment and any such termination [would] conclusively be deemed to be for just cause." Strich also pled guilty to the charges, accepted a thirty-day disciplinary suspension and waived any right to appeal.
On May 1, 2009, while off-duty, Strich was involved in a serious motorcycle accident resulting in significant injuries. By the date of the accident, he had already used nine of his ten allotted sick days, and, by May 4, Strich had exhausted all his sick time for the year. He notified Brick that, because of his injuries, he would not be fit to return to work until August 1.*fn1
His request to take an unpaid medical leave until then was denied.
On June 8, Brick served Strich with a preliminary notice of disciplinary action seeking removal for his inability to perform his duties; chronic absenteeism; conduct unbecoming; neglect of duty; and other sufficient cause. The specifications detailed Strich's exhaustion of allotted sick time, his prior discipline for absenteeism and excessive use of sick time, and violation of the terms of the LCA. After a disciplinary hearing, Brick filed a final notice of disciplinary action on July 28 sustaining the charges and removing Strich. Strich appealed.
At the hearing before the ALJ, Brick's Business Administrator, Scott Pezarras, detailed the history of Strich's employment and acknowledged that Strich was a competent employee when present at work. Pezarras also stated that Strich had followed existing policy in requesting sick time in the past, including complying with the LCA, and he confirmed that Brick's mayor and Strich were political adversaries because of Strich's support of the mayor's opponent.
Strich testified regarding the numerous reasons for his use of sick time in the past, including the death of his father, various medical problems, his divorce and alcohol abuse. He testified that he was granted unpaid leaves of absence whenever he exceeded the use of allotted sick time in the past. Brick's Tax Assessor, Fred Millman, also testified that Strich experienced these personal problems, was a good employee and was known to be a political adversary of the current mayor.
Focusing on the terms of the LCA, the ALJ noted that "[w]hile it is unfortunate that [Strich's] accident caused him to use his last remaining sick day and trigger[ed] the penalty provisions of the LCA, such an event was not unforeseen when he entered into the agreement." She noted that "[t]he terms of the LCA [were] clear," and there was no evidence that Strich "was coerced in the execution of the settlement or that he was unable to seek counsel if he so chose." The ALJ concluded that Brick had "proven the conduct and as New Jersey law allows the use of last chance agreements in employment matters, Brick [had] met its burden."
The CSC issued its final order on August 20, 2010, accepting and adopting the ALJ's initial decision. This appeal followed.
Before us, Strich contends that, because of the totality of the circumstances presented, he should not have been removed for violating the LCA. In this regard, he cites the undisputed testimony that the motorcycle accident was not his fault; his compliance with procedures for using his sick time in the past and pursuant to the LCA; Brick's past practice of permitting him to use unpaid sick leave when necessary; and his political opposition to the mayor, implying this factor ultimately led to the disciplinary charges.
Our "review of a final agency [action] is [quite] limited." In re Carter, 191 N.J. 474, 482 (2007). "[I]f in reviewing an agency decision an appellate court finds sufficient credible evidence in the record to support the agency's conclusions, that court must uphold those findings even if the court believes that it would have reached a different result." In re Taylor, 158 N.J. 644, 657 (1999). We "will reverse the decision of the administrative agency only if it is arbitrary, capricious or unreasonable or it is not supported by substantial credible evidence in the record as a whole." Ibid. (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980)) (internal quotation mark omitted) (internal quotation mark omitted). Moreover, "courts should take care not to substitute their own views of whether a particular penalty is correct for those of the body charged with making that decision." Carter, supra, 191 N.J. at 486. "[W]hen reviewing administrative sanctions, the test . . . is whether such punishment is so disproportionate to the offense, in light of all the circumstances, as to be shocking to one's sense of fairness." In re Herrmann, 192 N.J. 19, 28-29 (2007) (citations and internal quotation marks omitted).
In Watson v. City of E. Orange, 175 N.J. 442, 443-46 (2003), the Court affirmed the use of LCAs in disciplinary actions involving public employees. We acknowledge Strich's essential argument about the facts presented in Watson, i.e., Watson's conduct that allegedly violated the LCA was volitional and the underlying disciplinary charge resulted from conduct that was dangerous to the public at large. See id. at 443-44 (detailing the history that led to the disciplinary charges, LCA and violation of the LCA in that case). It is undisputed that Strich's accident was not his fault, and his prior disciplinary record presented no facts that threatened public safety.
However, even in her dissent in Watson, Justice Long noted the LCA in that case was "straightforward," and "[i]f Watson violated the agreement or any other law, rule, or regulation governing his employment, he could be terminated." Id. at 446-47. She parted company with the majority in its interpretation of the LCA, and whether Watson had actually violated the agreement. Id. at 448.
In this case, the LCA was unambiguous. If Strich exceeded the use of his allotted sick time in 2009, he would be terminated, and any termination was acknowledged to be for just cause. The ALJ found, and the CSC accepted, that Strich was not coerced into settling his prior disciplinary action, and he did so with full knowledge of the LCA's terms. Those findings are adequately supported by the record. Under these circumstances, reversal of the CSC's decision regarding the LCA "likely would chill employers from entering into last chance agreements to the detriment of future employees." Watson, supra, 175 N.J. at 445.
Moreover, the record does not support Strich's claim that his removal was politically motivated. Certainly the ALJ, who heard the testimony, did not conclude that was the case.
We add one final point. At oral argument before us, Strich conceded that nothing compelled Brick to again grant his request for an unpaid medical leave of absence following the motorcycle accident. In other words, regardless of the provisions of the LCA, Strich could not compel Brick to exercise its discretion and grant him another unpaid leave of absence pursuant to any collective bargaining agreement, municipal policy or state statute. As a result, we affirm the CSC's decision on grounds other than those expressed in its final administrative decision. See El-Sioufi v. St. Peter's Univ. Hosp., 382 N.J. Super. 145, 169 (App. Div. 2005) (noting our review is of final orders and judgments, not the reasoning of decisions).
Even in the absence of the LCA, Strich was unable to perform his duties for an extended period of time. Without the benefit of allotted sick time, his absence was unexcused. Given his prior disciplinary history, the decision to remove him from his position was not arbitrary, capricious or unreasonable.