On appeal from the Civil Service Commission, Docket No. 2010-2505.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Yannotti and Espinosa.
Appellant Troy Hesse is a police officer of the Department of Human Services (DHS). It is undisputed that on September 10, 2009, while armed and charged with the responsibility to monitor a Krol*fn1 patient from Ancora Psychiatric Hospital at an off-site hospital facility, Hesse fell asleep. He does not contest his guilt on the charge but appeals from the fifteen-day suspension imposed as a penalty. We affirm.
Hesse was charged with sleeping on duty in violation of DHS Administrative Order 4:08 B.3; "[n]eglect of duty, loafing, idleness or willful failure to devote attention to tasks which would result in danger to persons or property," in violation of Administrative Order 4.08 B.2; violating the Code of Conduct, Article IV, Section 5A, Article V, Section 8 of Administrative Order 4:08 E.1; and conduct unbecoming a public employee in violation of N.J.A.C. 4A:2-2.3(a)(6). On January 27, 2010, the Deputy Director of the Civil Service Commission (CSC) sustained the charges and suspended Hesse for thirty days.
Hesse appealed and the matter was transmitted to the Office of Administrative Law for a hearing. The Administrative Law Judge (ALJ) merged all the charges into a single charge of sleeping on duty and reduced Hesse's suspension from thirty days to fifteen days. The CSC accepted and adopted the ALJ's findings of fact and conclusion. Hesse appeals from that final administrative action, arguing that the fifteen-day suspension must be vacated as arbitrary and that DHS may not punish him twice for the same offense.
The scope of our review in an appeal from a final decision of an administrative agency is limited. Circus Liquors, Inc. v. Governing Body of Middletown Twp., 199 N.J. 1, 9 (2009). We must sustain the agency's action in the absence of a "'clear showing' that it is arbitrary, capricious, or unreasonable or that it lacks fair support in the record[.]" Ibid.
As noted in the findings and conclusions adopted by the CSC, "[s]leeping on the job is a serious offense for a law enforcement officer. Particularly true when they are assigned to secure a potentially dangerous patient." The ALJ reviewed other disciplinary decisions and described a range of penalties from as low as five-days' suspension to removal from office. He cited the observation of another ALJ that a typical first offender received a thirty-day suspension for sleeping on duty. The ALJ described Hesse as "not typical[,]" a twelve-year veteran with no disciplinary history. He noted Hesse's effort to fight off sleep and his candor when questioned about dozing off, which he considered mitigating factors. Accordingly, the ALJ determined that a fifteen-day suspension, rather than the typical thirty-day suspension, was appropriate. We are satisfied that this penalty was not arbitrary, capricious or unreasonable, and was supported by the record.
Hesse also argues that the suspension constitutes a second punishment for the same offense because he had been "counseled" by his supervisor. He states that when his supervisor, Sergeant McCormick, contacted him, McCormick told Hesse not to fall asleep again and said, "[c]onsider yourself counseled." The argument that such counseling was an appropriate sanction that precluded further disciplinary action lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).