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In the Matter of

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


June 15, 2012

IN THE MATTER OF KWAMBOKA OCHARO, HUDSON COUNTY.

On appeal from the New Jersey Civil Service Commission, Docket No. 2010-3658.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted June 4, 2012

Before Judges Ashrafi and Fasciale.

Petitioner Kwamboka Ocharo appeals from a March 18, 2011 final agency decision of the Civil Service Commission (CSC) terminating her employment as a corrections officer with the Hudson County Corrections Department (HCCD). We affirm.

On six separate occasions from December 2009 to March 2010, petitioner was charged in preliminary notices of disciplinary action (PNDA) with violations of various HCCD rules and regulations on the following dates and for the incidents indicated:

1. December 7, 2009 (reporting off duty for family emergency on November 11, 2009, but not providing documentation of need for emergency);

2. December 7, 2009 (calling off duty for court appearance on November 18, 2009, but not providing documentation);

3. December 10, 2009 (requesting intermittent leave on December 5 and 9, 2009, without having such leave requested, approved, or available);

4. January 26, 2010 (calling off duty on January 13, 2010 without providing one-hour notice prior to beginning of shift);

5. February 1, 2010 (submitting on January 15, 2010 a blacked-out copy of court summons as excuse for being absent on November 18, 2009, and a court summons as excuse for being absent on January 13, 2010, but not appearing in court on those dates, and having an open failure to appear warrant); and

6. March 23, 2010 (calling off duty sick on March 20, 2010 without having ample time available).*fn1

Following an internal departmental hearing, the HCCD served petitioner with three final notices of disciplinary action (FNDA) dated May 3, 2010. Respectively, the FNDAs imposed a sixty-day suspension, a ninety-day suspension, and removal.*fn2

Petitioner appealed to the CSC, which transferred the appeal to the Office of Administrative Law. On three days in July and August 2010, an administrative law judge (ALJ) conducted a trial. Petitioner testified and presented no other testimony. The HCCD presented pertinent testimony from Lieutenant Thomas Monteleone, petitioner's supervisor at HCCD, and Stacy Parrish, an HCCD internal affairs investigator. On November 12, 2010, the ALJ issued a nine-page, written initial decision, upholding the suspensions but reversing the removal.

The ALJ found that the HCCD had "received copies of Jersey City Municipal Court notices regarding [petitioner's] court dates of November 18, 2009, and January 13, 2010, on November 24, 2009, and January 15, 2010, respectively." He found that petitioner "failed to appear in Jersey City Municipal Court on November 18, 2009, to answer the summons for which she had received a notice from the court," and therefore "[a] warrant was subsequently issued for [petitioner's] failure to appear regarding the summons." The ALJ further found that petitioner "did not inform [HCCD] prior to the January 13, 2010, court date regarding her appearance," and that she "spoke to a prosecutor in Jersey City Municipal Court on January 13, 2010, but failed to remain in court in order to answer the summons previously scheduled for November 18, 2009."

Regarding petitioner's removal, the ALJ determined that the HCCD had "not proven, by a preponderance of the competent, credible evidence, the charges of insubordination, conduct unbecoming of a public employee, neglect of duty or other sufficient cause." The ALJ noted that although the HCCD had included a charge of chronic or excessive absenteeism in the March 23, 2010 PNDA, the FNDA imposing removal omitted the charge. The ALJ nonetheless concluded that the HCCD had not sustained such a charge.

On March 18, 2011, the CSC issued a written final agency decision. The CSC adopted the ALJ's findings of fact and recommendations regarding the sixty-day and ninety-day suspensions,*fn3 but rejected the ALJ's determination to reverse the removal. The CSC stated that "the ALJ found that [petitioner] engaged in conduct that was the basis [petitioner's] removal in his [f]indings of [f]act," and therefore reinstated the removal. This appeal followed.

On appeal, petitioner argues that the CSC's decision to reject the ALJ's recommendation to reverse the removal was arbitrary, capricious and unreasonable, and should be reversed. She contends that the "CSC's findings were not reasonably supported by the evidence," and that the CSC failed to state "with particularity" its reasons for rejecting the ALJ's recommendation. She also maintains that her testimony shows "how the ALJ logically arrived at his decision and how the CSC totally misread the decision."

Pursuant to the Administrative Procedure Act, N.J.S.A. 52:14B-1 to -25, "an ALJ, who has been assigned to review a disputed matter involving a State agency, is charged with issuing a decision that contains recommended findings of fact and conclusions of law that are 'based upon sufficient, competent, and credible evidence.'" In re Taylor, 158 N.J. 644, 655 (1999) (quoting N.J.S.A. 52:14B-10(c)). The agency is the "primary factfinder," and has the "ultimate authority, upon a review of the record submitted by the ALJ[,] to adopt, reject or modify the recommended report and decision of the ALJ." N.J. Dep't of Pub. Advocate v. N.J. Bd. of Pub. Utils., 189 N.J. Super. 491, 507 (App. Div. 1983) (citing N.J.S.A. 52:14B-10(c)); see also Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 586-87 (1988) (explaining relationship between ALJ's initial decision and agency's final decision).

Our review of an agency's final decision is limited. In re Taylor, 158 N.J. at 656 (quoting Clowes, supra, 109 N.J. at 587). We "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) (citing Clowes, supra, 109 N.J. at 587), and uphold its decision "unless there is a clear showing that it is arbitrary, capricious, or unreasonable, or that it lacks fair support in the record," In re Herrmann, 192 N.J. 19, 27-28 (2007). However, we owe no deference if "'an agency's statutory interpretation is contrary to the statutory language, or . . . undermines the Legislature's intent.'" Dep't of Children & Families, Div. of Youth & Family Servs. v. T.B., 207 N.J. 294, 302 (2011) (quoting Reilly v. AAA Mid-Atl. Ins. Co. of N.J., 194 N.J. 474, 485 (2008)).

Here, the final agency decision stated:

[I]t is clear that removal is the proper penalty. The PNDA dated February 1, 2010 seeking [petitioner's] removal charged her with insubordination, conduct unbecoming a public employee, neglect of duty, and other sufficient cause. Clearly that PNDA indicated that on November 24, 2009, as an excuse for the "absent no pay" on November 18, 2009, she submitted an original copy of a subpoena for a court appearance on November 18, 2009. Subsequently, on January 15, 2010, the [HCCD] received another copy of a summons for [petitioner] to appear in court on January 13, 2010. When the [HCCD] attempted to verify her court attendance, it was determined that [petitioner] did not appear in court on January 13, 2010 or November 18, 2009, and that she had an open failure to appear warrant. These charges were sustained on the FNDA issued on May 3, 2010 and [petitioner] was removed . . . . The subsequent PNDA seeking her removal dated March 23, 2010 charged [petitioner] with calling off duty sick without having ample time available. These charges were sustained on another FNDA issued on May 3, 2010 and [petitioner] was also removed on these charges . . . .

Conversely, the December 7, 2009 PNDA, that resulted in her 60 working day suspension, only charged [petitioner] with failure to provide the required documentation to support her claim when she returned to work on November 21, 2009. She was not charged by the [HCCD] at that time based on her failure to appear in court. However, the ALJ specifically found that [petitioner] failed to appear in Jersey City Municipal Court on November 18, 2009 to answer the summons for which she had received a notice from the court and a warrant was subsequently issued for her failure to appear regarding the summons. The ALJ also determined that [petitioner] did not inform the [HCCD] prior to the January 13, 2010 court date regarding her appearance and she did not remain in court on January 13, 2010 to answer the summons previously scheduled for November 18, 2009. In other words, the ALJ found that [petitioner's] actions were consistent with what she was charged with on the February 1, 2010 PNDA, i.e., that she did not appear in court on November 18, 2009 and failed to remain at court on January 13, 2010 and that she had an outstanding warrant. This is separate and distinct from her failure to provide the required documentation for which she received a 60 working day suspension.

The [CSC] agrees with the [HCCD's] assessment that [petitioner's] failure to appear in court on November 18, 2009 and remain at court on January 13, 2010 in order to address the summons issued to her as well as the corresponding warrants substantiated the charges of insubordination, conduct unbecoming a public employee, neglect of duty and other sufficient cause. Moreover, the [CSC] is mindful that a law enforcement officer is held to a higher standard than a civilian public employee. The failure of a law enforcement officer to appear and remain in court cannot be tolerated and is worthy of a severe sanction. Additionally, [petitioner] has had several major disciplinary actions other than the ones currently under review since she began employment in October 2000. Therefore, in conjunction with her past disciplinary record and her relatively short term employment history, [petitioner's] actions are sufficiently egregious and warrant her removal. Accordingly, the [CSC] finds that the penalties imposed by the [HCCD] were neither unduly harsh nor disproportionate to the offense and should be upheld. [(Citations omitted).]

Our review of the record reveals sufficient credible evidence to support the CSC's decision to affirm removal. The agency recognized the ALJ's findings that petitioner failed to inform the HCCD prior to her January 13, 2010 court appearance, and that she failed to remain in court on that date to answer the summons previously scheduled for November 18, 2009. Based on those findings, the CSC determined that petitioner's "actions were consistent with what she was charged with on the February 1, 2010 PNDA." We agree. We conclude, however, that the ALJ's decision to reject petitioner's removal was not supported by an adequate application and analysis of the facts.

Petitioner also disputes whether her actions legally amounted to the violations alleged. She contends that the ALJ correctly determined that "although she did not actually appear before a judge on the two dates in question, her actions did not [a]rise to the level of misconduct charged in the FNDA." We disagree.

"[A] dismal disciplinary record can support an appointing authority's decision to rid itself of a problematic employee based on charges that, but for the past record, ordinarily would have resulted in a lesser sanction." In re Anthony Stallworth, 208 N.J. 182, 196 (2011) (quoting In Re Herrmann, 192 N.J. 19, 32 (2007)); see also In re Hall, 335 N.J. Super. 45, 51 (App. Div. 2000) (reinstating a police officer's dismissal for attempted theft because insufficient weight was given to the officer's previous violations); In re Morrison, 216 N.J. Super. 143, 147, 160-61 (1987) (holding that a police officer's poor record and recent weighty suspension supported dismissal after most recent incident). Similarly, the concept of progressive discipline can be utilized to "'ratchet-up' or 'support imposition of a more severe penalty for a public employee who engages in habitual misconduct.'" Stallworth, supra, 208 N.J. at 196 (quoting Herrmann, supra, 192 N.J. at 30-33).

Furthermore, we recognize that the importance of maintaining order and discipline in a corrections facility means that officers such as petitioner are held to a higher standard of conduct than other public employees. See Henry v. Rahway State Prison, 81 N.J. 571, 579 (1980) ("Maintaining discipline within law enforcement agencies is important for the safety and security of the public."); Bowden v. Bayside State Prison, 268 N.J. Super. 301, 306 (App. Div. 1993) ("We can take judicial notice that such facilities, if not properly operated, have a capacity to become 'tinderboxes.'"), certif. denied, 135 N.J. 469 (1994). And we note that "conduct unbecoming a public employee" is an "elastic" phrase that "has been defined as any conduct which adversely affects the morale or efficiency of the [agency, or] which has a tendency to destroy public respect for municipal employees and confidence in the operation of municipal services." Karins v. City of Atl. City, 152 N.J. 532, 554 (1998) (internal quotation marks omitted). As such, findings of misconduct "need not be predicated upon the violation of any particular regulation or rule." City of Asbury Park v. Dep't of Civil Serv., 17 N.J. 419, 429 (1955).

This case does not warrant appellate intervention. The record contains substantial credible evidence to support the CSC's final decision, which was by no means "so wide off the mark as to be manifestly mistaken." Tlumac v. High Bridge Stone, 187 N.J. 567, 573-74 (2006); Bradley v. Henry Townsend Moving & Storage Co., 78 N.J. 532, 534 (1979); Close, supra, 44 N.J. at 598-99. Given our limited standard of review, we defer to that decision.

Affirmed.


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