On appeal from the Civil Service Commission, CSC Docket Nos. 2010-1713 and 2010-3142; and New Jersey Department of Corrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued January 19, 2012 - Before Judges Cuff, Lihotz and St. John.
Americo Arzola appeals from the February 10, 2011 final administrative action of the Civil Service Commission (the Commission), finding that the appointing authority's removal of Arzola was justified, and upholding Arzola's disqualification from the Correction Sergeant examination. The Commission accepted and adopted the findings of fact and conclusions of law, as contained in the Administrative Law Judge's (ALJ) Initial Decision, dated August 13, 2010. In light of the record and arguments advanced on appeal, we affirm in part, and reverse in part.
On May 30, 2009, Arzola, a ten-year correctional officer with the New Jersey Department of Corrections (DOC), sat for his third attempt to pass the Correction Sergeant examination. Thereafter, he was notified he would be eligible to receive the sergeant title based on his exam score of 185. On October 20, 2009, Arzola attended a test review session to review his Scantron*fn1 answer sheet and to determine whether his test was scored correctly. Review candidates must schedule the review session in advance so that staff can obtain each candidate's test answer sheet and correct answer key. Arzola's review took place at a scheduled time and place where candidates were required to sign in and a room monitor was to provide verbal instructions and monitor their review. However, there was no evidence that the verbal instructions were given to Arzola. The room was equipped with a surveillance camera, which only captured still-frame photos at periodic intervals. At the review session, the Commission provided Arzola a pencil with an eraser, a two-sided sheet containing a list of review rules, and a review sheet. His original score answer sheet and correct answer key were placed in an unlocked glass box on his desk. The answer sheet and answer key could not be accessed without opening the glass box.
On the date of the review, Arzola arrived late to his review session,
but was still allowed to enter the room. At that time, there were at
least two other candidates also reviewing their results. Arzola
claimed he checked his answers against the correct answer key and noted he had three additional
correct responses than his score sheet indicated. He then approached
the room monitor, Sabrina Williams, a monitor in training,*fn2
with his answer sheet in his hand, and advised her of the
discrepancy. Upon seeing Arzola with the answer sheet removed from the
glass case, Williams noticed eraser dust on one of the pages, observed
Arzola's nervous state, and accused him of cheating by erasing and
changing his original answers. Arzola denied the accusation. Williams
did not observe Arzola reaching under the glass or changing any
answers, but he had his answer sheet in his hand. Supervisors were
called, and the video surveillance footage was reviewed. Arzola was
informed that the video showed him changing his answers. However, as
later disclosed, the images showed Arzola with his hand under the
glass, but not changing his answers.
On October 22, 2009, Joseph DiNardo, supervisor of testing and operation, wrote to Arzola informing him that he was being disqualified from the Correction Sergeant exam because "our video surveillance records showed that while you were reviewing your examination, you removed your answer sheet from beneath the glass, erased and changed several of your original responses."
DiNardo informed DOC about Arzola's actions and stated that the videotape "shows Arzola reaching over the desk, lifting the glass, removing his answer sheet from beneath the glass, and using a pencil to apparently make changes to his responses."
The DOC issued notices of disciplinary action against Arzola and, on January 25, 2010, conducted a Loudermill*fn3 hearing, at which time Arzola was suspended without pay. Arzola and his attorney wrote to PBA Local 105 on January 28, 2010, requesting a grievance be filed regarding the timing of the charges. The procedures required grievances to be filed with the DOC within fifteen days of the disciplinary action, and counsel's letter was sent within this period. Arzola urged PBA Local 105 on two different occasions to file a grievance, which it eventually did on March 24, 2010. The DOC declined to consider the grievance because it had not been filed within fifteen days of January 20, 2010, the date the preliminary notice of disciplinary action was served on Arzola.
Arzola contends he supplied the DOC with a copy of DiNardo's disqualification letter on or about October 22, 2009.
The charges were brought on January 19, 2010. On March 5, 2010, a departmental hearing was conducted and Arzola's employment was terminated. Arzola separately appealed his termination and his removal from the sergeant's list, arguing the determination that he cheated was not supported by the facts. The Commission granted a hearing and transferred the matter to the Office of Administrative Law (OAL) as a contested case. Both matters were consolidated in the OAL to be heard by a single ALJ.
Arzola moved for a summary decision,*fn4 which was denied, and the ALJ heard testimony over the course of five days. Although Arzola had requested the video of the review session six months prior to the hearing, it was only provided to him seven days before the hearing date. In addition, Arzola was not provided with the requested sign-in sheets for the review session or the names of other persons at the review session, and, therefore, potential witnesses.
The video evidence before the ALJ did not show Arzola changing his answers, despite DiNardo's earlier assertions to that fact to both his superiors and the DOC. He stated, "the sensitivity of the scanner is such that it picks up the darkest mark on a given line." He noted that question 33 in Arzola's test had an erased answer which left a "darker residual" than the erasures on questions 1, 4 and 7, the answers which he asserted Arzola changed at the review session. The machine correctly noted the substitute answer for 33 and not the erasure mark. However, the machine, when the test was originally graded, did not note the substitute answers to 1, 4 and 7, which Arzola contended were filled in by him on the original test date and not at the review session. DiNardo stated: "Well, 1, 4, and 7 are much better erased" than the erasure for 33, which led him to conclude that Arzola had cheated by changing his answers to 1, 4, and 7 at the review session. DiNardo stated that "[t]he video backup [of Arzola erasing his answers] would have been . . . nice in our support, but simply the scanning sensitivity and how the erasure marks were still fresh at the time was enough to disqualify." DiNardo acknowledged, however, that the erasure residue could have been deposited on the original test date.
The ALJ issued a written decision on August 13, 2010, denying Arzola's summary decision motion, upholding the DOC's decision to terminate his employment, and upholding the Commission's decision to remove him from the sergeant's list. In her findings of fact, the ALJ determined:
(1) Arzola was not told he was barred from lifting the glass and ...