June 22, 2012
IN THE MATTER OF JOHN TAYLOR, GARDEN STATE YOUTH CORRECTIONAL FACILITY.
JOHN C. TAYLOR, APPELLANT,
BOARD OF TRUSTEES, POLICE AND FIREMEN'S RETIREMENT SYSTEM, RESPONDENT.
On appeal from the Board of Trustees, Police and Firemen's Retirement System and the Civil Service Commission.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 13, 2011
Before Judges Fisher and Nugent.
In these consolidated appeals, appellant John C. Taylor challenges the final administrative actions of the Civil Service Commission*fn1 (CSC) and the Board of Trustees of the Police and Firemen's Retirement System (the PFRS Board). The CSC upheld Taylor's removal from his position of Senior Correction Officer (SCO) with the Garden State Youth Correctional Facility, Department of Corrections (DOC), for assaulting an inmate. The PFRS Board denied Taylor's application for accidental disability retirement benefits and imposed a one year forfeiture of pension service credit. We affirm.
The genesis of these appeals is an altercation between Taylor and an inmate. We derive the facts relating to that altercation from the administrative law hearing. On September 2, 2005, Taylor was assigned to the detention unit of the Garden State Youth Correctional Facility. The unit's inmates, agitated about a riot that had occurred the previous day, were clogging toilets and causing flooding throughout the unit. At approximately 1:00 p.m., while Taylor was escorting a minimal security inmate "down . . . the left tier so that he could push all the debris out of the hallway to unclog the drains," another inmate, Willie Jackson, threw a cup of liquid on Taylor.
Jackson claimed that the liquid was water; Taylor said that it was urine and feces.
The minimal security inmate assisting Taylor gave a written statement in which he recounted that "as [he and Taylor] walked down the wing[,] inmate Jackson threw a cup of urine hitting [the minimal security inmate's] shirt and splashing on SCO Taylor's face." According to the minimal security inmate, SCO Taylor immediately told him to exit the wing and the inmate did so with SCO Taylor. Later that day, Senior Investigator Brian Bonomo had Taylor put his uniform shirt into an evidence bag so that the shirt could be sent to a laboratory and analyzed to identify the liquid Jackson threw on Taylor. However, Taylor removed the shirt from the bag before it could be sent for testing.
Taylor testified to the following account of the incident:
As I passed by [i]nmate Jackson's cell, he reached out with his hand and hit me with [the] cup in the face and I twisted down like that and slipped, because I was standing in a bunch of water. I ordered the inmate that was working with me to exit the tier, and then when I regained myself,
[i]nmate Jackson made the comment about, "You could put cuffs on me. I don't need my hands. I'll kick you in your bad wheel.*fn2 "
When specifically asked by the Administrative Law Judge (ALJ) if he fell, Taylor explained that he "was up against the cell bars [and] when [Jackson] hit me, I twisted around and that's when I twisted my knee." When the ALJ again asked Taylor if he fell, Taylor responded, "No. I went to the -- pretty much to the wall."
After throwing the liquid, Jackson commented to Taylor, "you could put cuffs on me," and extended his arms through the jail cell bars. Taylor handcuffed Jackson and then returned to the Officers' Station, while Taylor's partner, Correction Officer recruit Elvin Urrutia, telephoned the shift commander at Center Control and reported that Taylor had been assaulted. Eric Wallenburg, then a Sergeant, responded with five other officers: William Faccone, Terence Farrell, Faustino Saucedo, S. Lee and R. Wolkock.*fn3
When Wallenburg and the other officers arrived at Jackson's cell, Jackson was still handcuffed. The officers ordered him to lie face down on the floor, which he did, and then they entered his cell, put leg irons on his legs, helped him to his feet, and escorted him "off the wing," an officer holding each of his arms. To leave the unit, they had to walk to the end of the wing, turn right, go through the Officers' Station where Taylor had gone to clean himself, walk down another hallway, then ascend a flight of stairs. The group walked to the end of the wing and as they turned the corner into the Officers' Station, Taylor punched Jackson in his upper chest and shoulder area.
Wallenburg testified that "[a]s soon as we turned that corner . . . Officer Taylor hit the inmate with . . . his closed fist." Wallenburg further testified that the two officers holding Jackson "were much, much bigger and stronger than he was," and had his arms securely restrained. Nonetheless, as the group turned the corner, before Taylor struck Jackson, Jackson moved his head and shoulder a little bit forward, but "he didn't move enough to really move towards anyone. The officers had him under control and they were holding his arms. He wasn't going anywhere." Taylor was a couple of feet away when Jackson made the motion forward, but Jackson could not have moved more than "two inches." Wallenburg testified that there was no way Jackson could have kicked Taylor, as his legs were shackled. On cross-examination, Wallenburg conceded that Jackson could have been attempting to lunge at Taylor.
Wallenburg also testified that the Attorney General's "Use of Force" policy for law enforcement officers is the policy followed by the DOC. That policy states, among other things, that "[i]n determining the use of force, the law enforcement officer should be guided by the principle that the degree of force employed in any situation should be only that reasonably necessary." In Wallenburg's opinion, Taylor was not "in a position where he needed to act in any kind of self-defense."
Taylor denied striking Jackson. He testified that he had remained at his post after being doused with the liquid because if he had left without first clearing it through a supervisor, he would have been fired for abandoning his post. When the officers escorting Jackson rounded the corner, Taylor was standing in front of a desk wiping his hair with a towel. "As soon as I looked up, when they came around the corner, [Jackson] lunged and that's when I blocked him down with my right hand." Taylor thought Jackson was going to lunge and kick him in his knee because of the comment Jackson had made earlier. Taylor maintained that he "just pushed [Jackson] down and stepped back." Taylor testified that he sprained his right thumb in the process.
SCO Faccone, who was holding one of Jackson's arms, testified that Jackson tried to lunge at Taylor, and it "looked like Taylor struck the inmate," that is, Taylor "defensively threw a strike." Faccone also testified that Jackson "couldn't have got[ten] to [Taylor], [be]cause he was handcuffed and leg- ironed," but Jackson did "step forward with his left foot and raise his handcuffed hands, maybe a foot up toward . . . Officer Taylor's face area."
No officer testified that those escorting Jackson ever lost control of him. Officers Urrutia, Saucedo, and Ferrell did not witness the incident in which Taylor struck Jackson, but each heard someone say "stop resisting" just before it happened. Urrutia, who witnessed the first incident in which Jackson threw liquid on Taylor, testified that he did not remember Taylor slipping and falling after Jackson threw the liquid.
Sergeant William Harrell interviewed Taylor after the episode ended. Taylor did not request medical attention, and in a statement he made and signed at 2:14 p.m. he wrote, "I do not feel I am in need of medical attention. [T]his officer does not require any medical attention. My personal doctor if needed will be utilized." Before Taylor left the facility that day, he was required to report to Internal Affairs, where he had to relinquish his badge and identification card. Four days later, Taylor signed an "Employer's First Report of Accidental Injury or Occupational Disease," reporting that he had injured his right knee and thumb, and that he had received treatment in a hospital emergency room.
During the administrative law hearing, Taylor testified that as soon as he was assaulted with the cup he "felt [his] right knee rip[,] it was . . . like somebody stuck a knife in it." He also testified that he "believed" he told someone he was injured, but he never identified that person. Taylor explained that later, after leaving work, he went to the emergency room where he was diagnosed with a right knee sprain, a right thumb sprain, and a contusion to his right ear, all caused by the assault. He eventually underwent two surgeries on his right knee.
Taylor also testified that he did not use excessive force. He acknowledged that if an officer has a reasonable belief that force is necessary, the officer is supposed to use the minimum force necessary. He insisted that he acted in self-defense and that had he wanted to hurt Jackson, he would have done so when Jackson stuck his arms through the bars to be handcuffed.
On September 16, 2005, Taylor was served with a Preliminary Notice of Disciplinary Action (PNDA) charging him with physical or mental abuse of an inmate, inappropriate physical contact or mistreatment of an inmate, and conduct unbecoming an employee; and notifying him that he was facing removal from office. The charges were sustained at a March 27, 2006 hearing, and on July 25, 2006, the DOC issued a Final Notice of Disciplinary Action which removed Taylor from office the same day. Taylor appealed and requested an administrative hearing, and the matter was transmitted to the Office of Administrative Law on November 2, 2006.
Meanwhile, on March 13, 2006, nearly one month after being served with the PNDA and two weeks before his departmental hearing on the disciplinary charges, Taylor filed an application for disability retirement based on accidents that had occurred on August 11, 2003 and September 2, 2005. On April 10, 2007, the PFRS Board notified Taylor that it had rejected his application for accidental disability, "but granted Ordinary Disability effective April 1, 2006." The PFRS Board found, among other things, that the incidents Taylor "described as occurring on September 2, 2005 and August 11, 2003, were not considered 'traumatic events.'" The PFRS Board also determined that "striking an inmate that was handcuffed and shackled was a serious breach of [Taylor's] public duties and misconduct in [Taylor's] position of trust." The PFRS Board voted "to forfeit [Taylor's] last year of posted PFRS service," having determined that his service for that period was dishonorable. Taylor appealed, and the matter was transmitted to the Office of Administrative Law.
The ALJ to whom the two contested matters were assigned consolidated them on June 13, 2008, and determined that the CSC had the predominant interest. After extensive efforts to settle both cases proved unsuccessful, the ALJ conducted hearings on January 28 and April 16, 2008. At the conclusion of the April 16 hearing, the ALJ granted the request of counsel to submit written summations. The ALJ closed the record on June 25, 2008, and issued a written decision on August 8, 2008. The ALJ determined that Taylor had acted in self-defense, was not guilty of the disciplinary infractions with which he had been charged, and had suffered an injury as the result of an accidental and traumatic event. As the result of those determinations, the ALJ reinstated Taylor; ordered that he receive back pay and seniority retroactive to the date he began collecting ordinary retirement benefits; and ordered that he was entitled to a full accidental disability pension.
Exceptions to the ALJ's initial decision were filed by the appointing authority, and both the CSC and the PFRS Board subsequently rejected the ALJ's decision. On January 16, 2009, after requesting and receiving three extensions of the deadline for filing its decision, the CSC issued a final decision in which it upheld the appointing authority's action in removing Taylor from office and dismissed his appeal.
Taylor did not appeal from the CSC's January 16, 2009 final decision. Instead, he filed a pro se action in the Law Division on September 25, 2009 against the CSC and the PFRS Board. Taylor alleged, among other things, that the CSC failed to notify him that it had overturned the ALJ's decision. The Law Division action was subsequently dismissed on January 22, 2010.
On April 13, 2010, after receiving the CSC's decision,*fn4
the PFRS Board reaffirmed its earlier determination. Taylor
filed this appeal on May 26, 2010.
Taylor's arguments are not easily discernable. The factual statement in his brief is not supported by references to the appendix and transcripts, as required by Rule 2:6-2(a)(4). The factual statement underlying his first argument appears to be mistaken.
Taylor first asserts that after the ALJ issued her decision on August 8, 2008, the agencies were granted a sixty-day extension in which to file their opinions. He further asserts that "[t]he total time was 105 days for which the [agencies] failed to act [u]nder N.J.S.A. 52:14B-10." Taylor then appears to argue that his due process rights were violated because he was not provided with timely notice of the adverse decisions so that he, in turn, could file a timely appeal. Taylor did not file a timely appeal from the CSC decision, but he did file a timely appeal from the PFRS Board's decision.
Taylor is mistaken in his assertion that only one extension was granted. The ALJ closed the record on June 25, 2008, and issued her initial decision on August 8, 2008. The CSC, the agency with the predominant interest, was required to issue a final decision by September 22, 2008. However, the time limit for filing a final decision may be extended for good cause. N.J.A.C. 1:1-18.8(a). Extensions may not exceed forty-five days, but more than one extension may be granted for good cause, provided the agency submits its extension request to the Director of the Office of Administrative Law no later than the day on which the decision is due. N.J.A.C. 1:1-18.8. The CSC timely requested and received three orders of extension that, collectively, extended the time for the CSC to issue its final decision to February 5, 2009. The CSC issued its final decision on January 16, 2009, well within the extended deadline. Consequently, we reject Taylor's suggestion that he failed to timely appeal from the CSC decision because the final CSC decision was untimely issued. We will nonetheless address the merits of the CSC's final determination as well as the PFRS Board's final determination.
Taylor argues that the DOC improperly terminated his employment, the PFRS Board improperly denied him a disability pension, and the CSC and the PFRS Board erroneously rejected the ALJ's decision. As to the disability pension, Taylor claims the PFRS Board's denial was "due to [two issues:] 1. The witness to the assault did not testify as to what the claimant fell
[a]against after being assaulted. 2. The fact that claimant refused medical treatment after he got off duty [f]rom his [6:00 a.m. to 2:00 p.m.] shift." We construe Taylor's argument to assert that the CSC and the PFRS Board improperly rejected the ALJ's findings of fact and conclusions of law as to those issues.
The scope of our review of a final administrative agency decision is
limited. In re Taylor, 158 N.J. 644, 656 (1999). Generally, we "defer
to the specialized or technical expertise of the agency charged with
administration of a regulatory system." In re Application of
Virtua-West Jersey Hosp. for a Certificate of Need, 194 N.J. 413, 422
(2008). Accordingly, "an appellate court ordinarily should not disturb
an administrative agency's determinations or findings unless there is
a clear showing that (1) the agency did not follow the law; (2) the
decision was arbitrary, capricious, or unreasonable; or (3) the
decision was not supported by substantial evidence." Ibid. "The burden
of demonstrating that the agency's action was arbitrary, capricious or
unreasonable rests upon the [party] challenging the administrative
action." In re Arenas, 385 N.J. Super. 440, 443-44 (App. Div.),
certif. denied, 188 N.J. 219 (2006). See also McGowan v. N.J. State
Parole Bd., 347 N.J. Super. 544, 563 (App. Div. 2002); Barone v. Dep't
of Human Servs., 210 N.J. Super. 276, 285 (App. Div. 1986), aff'd, 107
N.J. 355 (1987).
Here, both the CSC and the PFRS Board rejected the ALJ's initial decision, including certain of the ALJ's findings of fact and credibility determinations. The CSC and the PFRS Board had the statutorily conferred right to reject the ALJ's initial determination:
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. The agency head may not reject or modify any findings of fact as to issues of credibility of lay witness testimony unless it is first determined from a review of the record that the findings are arbitrary, capricious or unreasonable or are not supported by sufficient, competent, and credible evidence in the record. [N.J.S.A. 52:14B-10(c)]
In reaching her decision, the ALJ made the following findings of fact:
1. I FIND that on September 2, 2005, two incidents occurred between appellant and Inmate Jackson. The first incident was an assault of appellant by Inmate Jackson who threw a cup of urine which hit appellant's face and who threatened to hit appellant's bad knee. The second incident was appellant's blocking Jackson's lunge at him by pushing back or punching the threatening inmate.
2. I FIND that in the first incident, appellant's twisting away from the cup of urine thrown at him, resulted in a right knee injury. Appellant's testimony of this was corroborated by the same day medical examination report with a diagnosis of a sprained knee and a sprained right thumb and a prescription of Motrin medication. It was also corroborated by appellant's application for disability retirement dated March 13, 2006, in which he explained that he was assaulted by an inmate on September 2, 2005, which was observed by a corrections recruit (Urrutia) and which occurred while standing in sewage causing him to injure his knee. As a result, I FIND appellant's testimony credible, despite his confusing details about falling into the wall.
3. I FIND that appellant's sprained thumb injury occurred in the second incident when appellant blocked or punched or pushed back Inmate Jackson who lunged at appellant, shortly after Jackson had threatened to hit his bad knee. I FIND appellant's testimony credible. In addition, I FIND the testimony credible of Senior Correction Officer William Faccone, who held Jackson's left arm as he escorted him out of the wing past appellant. Officer Faccone was the closest to Jackson and appellant. Officer Faccone corroborated appellant's version of the second incident by testifying that Jackson lunged his arm and torso "one foot or so" toward appellant with a lag time between his lunge and the two officers pulling Jackson back. He testified that Inmate Jackson got close to appellant who "defensively threw a strike with a closed hand" at Inmate Jackson's left side of his chest. Accordingly, I FIND that appellant was protecting himself from an inmate who had just assaulted him with a cup of urine thrown at his face and who had just threatened to hit appellant's bad knee and who lunged toward appellant -despite the inmate being handcuffed, shackled and escorted by two officers.
4. I FIND appellant's testimony credible that he does not believe in excessive force and that if he wanted to use excessive force against Inmate Jackson that he would have done it when he was alone handcuffing Inmate Jackson inside his cell, after appellant had been hit in the face with a cup of urine thrown by Jackson and before the emergency response officers arrived and took over.
The CSC acknowledged both the deference generally afforded an ALJ's fact and credibility determinations, and the statutory standard for rejecting such determinations. Nonetheless, the CSC found irreconcilable Taylor's post-incident testimony that he did not need medical treatment, with his testimony before the ALJ more than two years later that, as soon as he was assaulted, he felt his knee rip, felt like someone stuck a knife in it, and knew that he had been injured. The CSC explained:
Further, the appellant claims that he "believes" he told "somebody" that his knee was injured and was expecting to be relieved of duty to go to the doctor to be checked, but then claims that he was not given the opportunity to do so until he was off duty.
However, despite his testimony that he thought he "told someone as I was standing out there about how my leg was hurting" approximately five minutes after Jackson was taken off the unit . . . he reported that he would seek out medical treatment on his own, if he needed it. The appellant's only explanation for this was that he knew he would not have received any treatment because everything that is supposed to occur when an incident happens "never occurs when it involves certain officers . . . ." When asked how he was ultimately treated for his injuries after his badge and identification were taken, which he understood to mean that he was fired, the appellant testified that he "went to the emergency room, because the time for me driving from here to my personal doctor, it had closed . . . .["] As such, the appellant had no reason to report that he did not need medical treatment.
The CSC also rejected the ALJ's determination that when Taylor struck Jackson, Taylor acted out of fear and in self-defense. The CSC stated:
In conjunction with the fact that Jackson was handcuffed, held by two officers on each arm, and had his legs shackled, the Commission finds the appellant's testimony that he defensively attempted to block Jackson's head lunge not to be credible. As pointed out by the appointing authority in its exceptions, all of the escorting officers confirmed that Jackson was at all times under control and that he only lunged his head. Moreover, while the appellant was cleaning himself up at the officers' desk, he would surely have heard the Extraction Team coming down the tier and he could have gotten himself out of the area. In short, the inconsistent testimony regarding the appellant's injuries tends to undermine his overall credibility. Indeed, the appellant seeks to have the Commission believe that he acted in a defensive manner against the actions of a handcuffed, shackled inmate who was being restrained by two officers escorting him off the tier. This is simply not believable. Given the appellant's years of service as a Senior Correction Officer, the Commission finds that his actions were not consistent with those of a seasoned officer and were unreasonable. Therefore, the Commission finds that there is not sufficient evidence in the record to support the ALJ's credibility determinations and it upholds the charges imposed by the appointing authority.
The PFRS Board rejected the ALJ's initial determination for similar reasons. After citing to the CSC's final determination, the PFRS Board added:
The ALJ completely disregarded the testimony of Officer Urrutia, the only eyewitness to the incident at the cell. Urrutia was approximately [twenty-five] yards away from where the incident occurred. Urrutia testified that he did not see Mr. Taylor fall, only that he was struck with a cup of liquid. Instead of rejecting his testimony, the ALJ simply ignored the testimony. Thus, the ALJ failed to properly weigh the evidence and the Board rejects the Initial Decision on that basis.
Correction Officers, pursuant to the Department of Corrections policy, are to use "minimal" amounts of force "with the utmost restraint" only when it is "immediately necessary" to defend themselves against assaults. At the time of this assault, the inmate was handcuffed, leg-shackled, and held by three corrections officers. All members of the extraction team reiterated that at no point did they lose control of the inmate, or that he "couldn't have got to [Mr. Taylor]." As Lt. Wallenburg described, "he [the inmate] wasn't going anywhere." All the more, Investigator Bonomo confirmed "there's no way the inmate could have kicked anyone."
Even after this compelling testimony, the ALJ still found that the Appointing Authority failed to establish the charges against Mr. Taylor, and that he "acted in self-defense." It is clear from the testimony of the officers who were actually escorting the inmate, that the inmate had no opportunity to assault Mr. Taylor. Because the inmate could not have assaulted Mr. Taylor, there was no reason he had to act in self-defense. Further, as the Civil Service Commission found, Mr. Taylor had "no reason to be in the path of the Extraction Team.["]
In other words, Mr. Taylor placed himself in a position where he knew the inmate would be escorted, demonstrating that he intended to assault the inmate.
The CSC and the PFRS Board "stated clearly" the reasons for rejecting the ALJ's findings. The ALJ acknowledged that Taylor's testimony concerning his falling into the wall was "confusing," but did not then assess the testimony of Urrutia who did not see Taylor fall. In addition, the ALJ did not analyze or attempt to reconcile Taylor's verbal and written statements immediately following the incident -- that he did not feel he needed medical treatment -- with his statements at trial concerning his ripping his knee and the severity of the pain he experienced immediately after he slipped and fell against the wall. And the ALJ did not address the testimony and statements of the extraction team that two larger corrections officers had control of the handcuffed, shackled inmate at all times. In view of those considerations, and the explanations of the CSC and the PFRS Board addressing them, both administrative agencies complied with the statutory standard for rejecting an ALJ's factual findings and credibility determinations.