On appeal from the Decision of the Commissioner of Education, Docket No. 30-2/11.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Messano and Kennedy.
Donald Dudley appeals from the October 21, 2011 final decision of the Acting Commissioner of Education (the Commissioner). The Commissioner determined that, based upon the initial decision of the administrative law judge (ALJ), Dudley's employer, the Board of Education of the Township of Neptune (the Board), had sustained charges of failure to follow attendance and reporting procedures; sleeping on the job; chronic absenteeism; and a pattern of neglect, misbehavior and other offenses. Although the ALJ recommended a six-month suspension as discipline, the Commissioner concluded that termination was appropriate.
We set forth some preliminary background that is undisputed. Dudley commenced employment as a substitute custodian with the Board during the 2002-03 school year. He was again hired the following school year in the same capacity. The Board employed him as a permanent school custodian commencing in October 2004. He acquired tenure three years later in October 2007.
On January 10, 2011, the Board certified tenure charges against Dudley based upon the affidavit of Donald Frangipane, its Facilities Engineer and Dudley's superior. Dudley filed his answer and the matter was referred to the Office of Administrative Law (OAL). Frangipane, David Mooij, the Board's Superintendent of Schools, Dudley and two school custodians testified at the hearing that took place over three days.
Although the ALJ determined that some specific allegations regarding the first charge -- failure to report and follow procedures -- were not sustained, she determined the Board had established a number of specific violations by Dudley. She concluded that Dudley "left work at least two hours early without reporting it on October 27, 2007." On this day, Frangipane personally visited the school Dudley was assigned to at 4:00 a.m. and found no one present. Frangipane rang the fire alarm in an effort to raise Dudley, but he never answered. Additionally, the back door of the school was unlocked, the lights of the school were on and the burglar alarm was off.
On June 21, August 13, 19, 24, 27, and September 9, 2010, Dudley was either absent from work, or left early, and failed to properly report his absences. His failure to utilize the Board's computerized personnel accounting system, known as "Aesop," denied the Board the opportunity to employ a substitute janitor.
The ALJ also determined that Dudley submitted a vacation request for August 30 through September 3, 2010. Pursuant to the collective bargaining agreement between the Board and its custodians, vacation requests "shall not be granted . . . during the last two weeks prior to the reopening of school in September." Although the testimony was conflicting, the ALJ found that this prohibition was "longstanding and well[-] known," and that Dudley "failed to comply with the policy."
As to charge two, sleeping on the job, the ALJ noted that Dudley had received a written warning after being found asleep in the faculty lounge on November 2, 2007. She also credited Frangipane's testimony that he found Dudley asleep on January 27, 2010, and sustained the charge because "there [wa]s no real dispute that Dudley was sleeping for a period of time on both occasions . . . ."
The ALJ also sustained the charge of chronic absenteeism, noting that Dudley was "absent from his position fifty-three days in an eight-month period and sixty-two days in one three-month period." These extensive absences were occasioned because Dudley underwent shoulder and back surgery.
Lastly, the ALJ described the fourth charge as "essentially collaps[ing] all of the incidents in question into a charge of an ongoing pattern of neglect, misbehavior, and other offenses . . . ." Recounting her prior findings, the ALJ noted that "Dudley has not managed an event-free year since acquiring tenure, although to be ...