July 17, 2012
CHERYL CLARK, R.N., APPELLANT,
NEW JERSEY DEPARTMENT OF CORRECTIONS RESPONDENT.
On appeal from the New Jersey Department of Corrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 16, 2012
Before Judges Cuff and St. John.
Cheryl Clark appeals the decision of the Department of Corrections (DOC) determining that she is not approved to work in a DOC correctional facility. After reviewing the record on appeal, we conclude the DOC's decision is not accompanied by the necessary findings of fact, and we remand the matter to the DOC to correct the deficiency.
In 2006, Clark was employed as a registered nurse by Correctional Medical Services (CMS), a contract vendor for the DOC. On November 27, 2006, she submitted an "Application for Clearance and Issuance of CONTRACT IDENTIFICATION CARD" to the DOC, seeking approval to work in a DOC correctional facility. The application asked: "Have you ever been convicted of any violation of the Criminal Code in this State or in any other jurisdiction? (Violations include offenses, crimes misdemeanors, and felonies)." Clark responded that she was convicted of "Poss. CDS" in 1983, in the "Superior Court of N.J. Monmouth Vicinage." By letter dated December 11, 2006, from DOC to CMS, Clark was "approved to work in our correctional facilities."
On April 23, 2010, she again submitted an application to DOC on the same form as the 2006 application. In response to the criminal history question, she noted two convictions, "Possession between 1982 and 1984 cannot remember exact dates" with the court listed as "Trenton N.J.," and "Traffic Violation Charged- Dec 2007 Convicted- Mar 2009," with the court listed as "Somerdale N.J." Directly below this disclosure she stated, "Any questions will explain."
By letter dated June 16, 2010, from Mark Farsi, DOC Deputy Commissioner, to University Correctional Health Center, Clark's then employer, the DOC stated that Clark "is not approved to work in our correctional facilities." On June 18, Farsi effectuated a "Statewide Ban" on Clark's authorization to work in any New Jersey correctional facility. On August 3, Clark's union representative requested "an opportunity to appeal this non-approval." By letter dated August 19, Dr. Ralph P. Woodward, DOC Director of Health Services, stated, "we are in agreement with Deputy Commissioner Farsi's decision and therefore uphold the position that Ms. Clark cannot be approved for work in a NJDOC facility."*fn1 On appeal, Clark argues, among other points, that the decision to not approve her for work in a DOC facility was arbitrary or capricious, or lacked a rational basis.
We note first the standard governing our review of this matter. "An appellate court's review of an administrative agency's findings of fact is limited to a determination of whether those findings are supported by 'sufficient credible evidence in the record.'" In re Lalama, 343 N.J. Super. 560, 564-65 (App. Div. 2001) (quoting In re Taylor, 158 N.J. 644, 657 (1999)). However, an "appellate court's review . . . is 'not simply a pro forma exercise in which [the court] rubber stamp[s] findings that are not reasonably supported by the evidence.'" Id. at 565 (quoting Chou v. Rutgers, 283 N.J. Super. 524, 539 (App. Div. 1995), certif. denied, 145 N.J. 374 (1996)). "Appellate courts must engage in a 'careful and principled consideration of the agency record and findings.'" Ibid. (quoting Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85, 93 (1973)). If, after conducting that careful and principled review, an appellate court is satisfied that the findings and conclusions of the administrative body find support in the record, an affirmance is appropriate. An appellate court may not overturn the decision of the agency simply because it might have reached an opposite conclusion based upon that same evidence. Taylor, supra, 158 N.J. at 657.
The problem here is not the adequacy of the factual record, but the inadequacy of the findings in Farsi's decision. The Deputy Commissioner can and may make a decision about an individual working in a correctional facility based on the employee's submissions, and the security needs of the institution. Farsi's written statement in this case, however, does not permit us to determine whether his decision is sustainable. "'[N]o matter how great a deference the court is obliged to accord the administrative determination, it has no capacity to review at all unless . . . the agency has stated its reasons grounded in [the] record. . . .'" In re Issuance of a Permit by Dep't of Envtl. Prot. to Ciba-Geigy Corp., 120 N.J. 164, 173 (1990) (quoting State v. Atley, 157 N.J. Super. 157, 163 (App. Div. 1978)).
The deficiency is in the lack of factual findings and reasons supporting Farsi's determination. "[A]n administrative judgment [must] express a reasoned conclusion. A conclusion requires evidence to support it and findings of appropriate definiteness to express it." Bailey v. Bd. of Review, 339 N.J. Super. 29, 33 (App. Div. 2001) (internal quotation omitted). Our Supreme Court has held:
"It is axiomatic in this State . . . that an administrative agency acting quasi-judicially must set forth basic findings of fact, supported by the evidence and supporting the ultimate conclusions and final determination, for the salutary purpose of informing the interested parties and any reviewing tribunal of the basis on which the final decision was reached so that it may be readily determined whether the result is sufficiently and soundly grounded or derives from arbitrary, capricious or extra-legal considerations."
[Ciba-Geigy, supra, 120 N.J. at 172 (quoting In re Application of Howard Sav. Inst., 32 N.J. 29, 52 (1960) (citations omitted)).]
This court defers to an agency's decision unless it is arbitrary, capricious or unreasonable or not supported by substantial credible evidence in the record. Bailey, supra, 339 N.J. Super. at 33. We cannot afford that deference, however, unless we have "confidence that there has been a careful consideration of the facts in issue and appropriate findings addressing the critical issues in dispute." Ibid. "The requirement of findings is far from a technicality and is a matter of substance. It . . . is a fundamental of fair play that an administrative judgment express a reasoned conclusion. A conclusion requires evidence to support it and findings of appropriate definiteness to express it." N.J. Bell Tel. Co. v. Commc'ns Workers of Am., 5 N.J. 354, 375 (1950) (citation omitted). Further,
Findings must be free from ambiguity which raises a doubt as to whether the administrative authority proceeded upon a correct legal theory. . . . [F]indings of fact [must] be sufficiently specific under the circumstances of the particular case to enable the reviewing court to intelligently review an administrative decision and ascertain if the facts upon which the order is based afford a reasonable basis for such order. [Id. at 376-77.]
"When an agency's decision is not accompanied by the necessary findings of fact, the usual remedy is to remand the matter to the agency to correct the deficiency." Ciba-Geigy, supra, 120 N.J. at 173.
The Deputy Commissioner's decision is so inadequate as to require remand. A "reasoned explanation [for the determination] based on specific findings of basic facts" is needed. Lister v. J.B. Eurell Co., 234 N.J. Super. 64, 73 (App. Div. 1989).
Remanded for further proceedings consistent with this opinion.
We do not retain jurisdiction.