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In the Matter of Scott


July 19, 2012


On appeal from the New Jersey Civil Service Commission, Docket No. 2010-961.

Per curiam.


Submitted February 29, 2012

Before Judges Cuff, Waugh and St. John.

Scott Laban appeals the final administrative action of the Civil Service Commission (the Commission), terminating his employment with the County of Bergen (the County). The Commission adopted the findings of fact of the Office of Administrative Law (OAL), as presented in the recommendation of the Administrative Law Judge (ALJ). However, the Commission rejected the ALJ's recommendation to modify the removal of Laban to a forty-five-day suspension. Instead, it imposed removal from office, the penalty sought by the County. In light of the record and applicable law, and following our review of the arguments on appeal, we affirm.

The record discloses the following facts and procedural history leading to the administrative determination under review.

Laban was employed by the County as a heavy equipment operator in July 2003. In 2008, pursuant to a settlement agreement, he was disciplined for conduct unbecoming an employee in the public service for spitting on a co-worker, and served an unpaid twenty-day suspension.

In 2009, the County asserted that Laban directed discriminatory comments towards fellow employees; failed to report and/or acknowledge an accident and/or damage to a County vehicle; and refused to sign an accident report.*fn1 On July 14, 2009, Laban was served with a preliminary notice of disciplinary action, and a departmental hearing was held. By final notice of disciplinary action, the County sustained all the charges and removed Laban from his position.

Laban requested a hearing before the Commission, which transmitted the matter to the AOL as a contested case. Hearings were held before the ALJ over a four-day period, following which the parties submitted post-hearing submissions. The ALJ determined "[t]he facts that gave rise to the charge that Laban engaged in discriminatory conduct are uncontroverted. Laban admitted the derogatory statements attributed to him . . . and did not testify at the hearing before me." The ALJ noted the County's policy prohibiting workplace discrimination and harassment. Laban's acknowledged receipt of a copy of the County's policy and his attendance on four separate occasions of anti-harassment training was also noted by the ALJ. The ALJ reviewed the County's "Remedial Action" policy, which "may be progressive in nature" and ranged "from direction to cease the offensive behavior to termination."

The ALJ determined Laban made derogatory comments to Luana Jennings,*fn2 a Native American seasonal County park employee. During the County's investigation, Luana complained that Laban referred to her family as "those people," called her "chief," and would make comments such as "how many more to your tribe." She also reported that during her first week of employment Laban advised her, "you'll fit in because you look like a spic." Luana had family and friends who also worked as seasonal employees. Luana's son and daughter, Paul and Heather, filed formal complaints against Laban, as did Heather's boyfriend, William Dennison. They testified that Laban referred to them as "you people," and that they belonged to a "tribe."

At the hearing before the ALJ, Luana described Laban's comments, and stated that she did not confront Laban because she was intimidated by him. She recounted Laban had boasted that he had spit at a fellow employee in anger. Paul also confirmed Laban's comments and his feelings that they were offensive. However, the ALJ determined, "it is noteworthy that there was no evidence of ill will between the parties, nor evidence that Laban's remarks were intended to offend."

After reviewing the evidence with regard to the vehicle accident, which stemmed from an incident when defendant dented the bulkhead of a County maintenance truck and failed to comply with the County's "accident procedure" policy, the ALJ found "Laban was aware of the damage sustained to the County vehicle but nonetheless failed to report it." Also, the ALJ found "that he refused to comply with the County requirement that he file a formal accident report."

In her Initial Decision, the ALJ found that the charges had been sustained, but reduced the penalty to a forty-five day suspension. The County and Laban filed exceptions. The Commission, based on its de novo review on the OAL record, agreed that the charges should be upheld, but disagreed with the ALJ's penalty recommendation, and ordered Laban's removal by the County.

On appeal, Laban argues that the Commission's modification of the ALJ's decision was improper and must be reversed.

Established precedents guide our task on appeal. Appellate review of an administrative agency decision is limited. See In re Herrmann, 192 N.J. 19, 27 (2007). A strong presumption of reasonableness attaches to the Commission's decision. In re Carroll, 339 N.J. Super. 429, 437 (App. Div.), certif. denied, 170 N.J. 85 (2001). The burden is on Laban to demonstrate grounds for reversal. McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 563 (App. Div. 2002); see also Bowden v. Bayside State Prison, 268 N.J. Super. 301, 304 (App. Div. 1993) (holding that "[t]he burden of showing the agency's action was arbitrary, unreasonable, or capricious rests upon the appellant"), certif. denied, 135 N.J. 469 (1994).

"Appellate courts ordinarily accord deference to final agency actions, reversing those actions if they are 'arbitrary, capricious or unreasonable or [if the action] is not supported by substantial credible evidence in the record as a whole.'"

N.J. Soc'y for the Prev. of Cruelty to Animals v. N.J. Dep't of Agric., 196 N.J. 366, 384-85 (2008) (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980)) (alteration in original). Under the arbitrary, capricious, and unreasonable standard, our scope of review is guided by three major inquiries: (l) whether the agency's decision conforms with relevant law; (2) whether the decision is supported by substantial credible evidence in the record; and (3) whether in applying the law to the facts, the administrative agency clearly erred in reaching its conclusion. In re Stallworth, 208 N.J. 182, 194 (2011). When an agency decision satisfies such criteria, we accord substantial deference to the agency's fact-finding and legal conclusions, while acknowledging the agency's "'expertise and superior knowledge of a particular field.'" Circus Liquors, Inc. v. Governing Body of Middletown Twp., 199 N.J. 1, 10 (2009) (quoting Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992)). We will not substitute our own judgment for the agency's even though we might have reached a different conclusion. Stallworth, supra, 208 N.J. at 194; see also In re Taylor, 158 N.J. 644, 656 (1999) (discussing the narrow appellate standard of review for administrative matters).

Our deference to agency decisions "applies to the review of disciplinary sanctions as well." Herrmann, supra, 192 N.J. at 28. "In light of the deference owed to such determinations, when 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." Id. at 28-29 (internal quotations and citations omitted). "The threshold of 'shocking' the court's sense of fairness is a difficult one, not met whenever the court would have reached a different result." Id. at 29.

We note that an ALJ's factual findings and legal conclusions are not "binding upon [an] agency head, unless otherwise provided by statute." N.J.A.C. 1:1-18.1(c). Accordingly, an agency head reviews an ALJ's decision "de novo . . . based on the record" before the ALJ. See In re Parlow, 192 N.J. Super. 247, 248 (App. Div. 1983). However, "[a]n agency head reviewing an ALJ's credibility findings relating to a lay witness may not reject or modify these findings unless the agency head explains why the ALJ's findings are arbitrary or not supported by the record." S.D. v. Div. of Med. Assistance & Health Servs., 349 N.J. Super. 480, 485 (App. Div. 2002); see also N.J.S.A. 52:14B-10(c) (An agency head may only reject the ALJ's credibility findings after it determines "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." In doing so, "the agency head shall state with particularity the reasons for rejecting the findings and shall make new or modified findings supported by sufficient, competent, and credible evidence in the record.").

With those principles in mind, we turn to Laban's contentions. Laban argues that the ALJ misapplied the Supreme Court's holding in Karins v. City of Atlantic City, 152 N.J. 532 (1998), and in Henry, supra, to the facts of his case. We disagree.

In applying the standard of "conduct unbecoming," the Court noted: "[t]he phrase is an elastic one," that "has been defined as any conduct which adversely affects the morale or efficiency of the bureau . . . [or] which has a tendency to destroy public respect for municipal employees and confidence in the operation of municipal services." [Karins, supra, 152 N.J. at 554 (quoting In re Emmons, 63 N.J. Super. 136, 140 (App. Div. 1960)).]

As a public employee, Laban's derogatory comments certainly destroy "public respect for municipal employees." Ibid.

Further, Laban's behavior not only negatively affected the morale of his colleagues, it also frustrated the efficiency of operations at the County. Laban's actions meet the standard of conduct unbecoming. Additionally, by failing to follow proper procedure after his accident, Laban neglected his duty to the County. We conclude the ALJ's findings of fact, as adopted by the Commission, were based on substantial credible evidence, and as such, the Commission's determination that he acted improperly in his role as a County employee was neither arbitrary nor capricious.

Regarding Laban's contentions that his conduct was not egregious enough to warrant removal, and that progressive discipline was required, the Court has stated, "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." In re Carter, 191 N.J. 474, 486 (2007). "[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.'" Herrmann, supra, 192 N.J. at 28-29 (quoting In re Polk, 90 N.J. 550, 578 (1982)).

The Supreme Court most recently interpreted the concept of progressive discipline in Stallworth. There, this court had reversed the Civil Service Commission's decision to reduce petitioner's penalty, and reinstated the appointing authority's decision to terminate petitioner. Stallworth, supra, 208 N.J. at 186. On review, the Court stated:

To assure proper "progressive discipline," and a resulting penalty based on the totality of the work history, an employee's past record with emphasis on the "reasonably recent past" should be considered. [Twp. of W. New York v. Bock, 38 N.J. 500, 524 (1962).] This includes consideration of the totality of the employee's work performance including all prior infractions. See [Carter, supra, 191 N.J. at 484.] As already noted, progressive discipline is a flexible concept, and its application depends on the totality and remoteness of the individual instances of misconduct that comprise the disciplinary record. The number and remoteness or timing of the offenses and their comparative seriousness, together with an analysis of the present conduct, must inform the evaluation of the appropriate penalty. Even where the present conduct alone would not warrant termination, a history of discipline in the reasonably recent past may justify a greater penalty; the number, timing, or seriousness of the previous offenses may make termination the appropriate penalty. [Id. at 199.]

Because the Court could not "conclude from the Commission's statement of reasons that it adequately considered [petitioner's] entire record of misconduct" in conformity with N.J.S.A. 52:14B-10, it upheld our decision to reverse and remand to the Commission for reconsideration. Id. at 200. Here, in its decision, the Commission reviewed Laban's disciplinary record, specifically noting the 2008 suspension for conduct unbecoming a public employee. However, the Commission noted that where the conduct is of an egregious nature, the penalty of removal is appropriate. The Commission also considered Laban's contention that his actions were not that severe and should not have resulted in his removal. The Commission disagreed, finding that "the record reveals [Laban] was recently disciplined and yet, he continued to act inappropriately towards his co-workers and failed to report the damage to his vehicle as required."

We see no reason to overturn the decision of the Commission, concluding that the penalty was not so "disproportionate to the offense" as to be "shocking" to our sense of fairness. The County should not have to continue to countenance an employee who used such racially insensitive language to his co-workers, and also failed to follow appropriate procedures after an accident with a County vehicle. Laban's removal from his public position as a result of his egregious conduct does not shock our sense of fairness.

The Commission's decision satisfies the principles provided in Stallworth, supra. Based on our analysis of the record within the perspective of our limited standard of review, we are not persuaded Laban has carried his burden of demonstrating grounds for reversal. We conclude the Commission's Final Decision was not arbitrary, unreasonable, or capricious, and was proportional to Laban's infractions.


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