On appeal from the Department of Children and Families, Division of Youth and Family Services, Docket No. AHU 10-1407, and the New Jersey Civil Service Commission, Docket No. 2011-2510.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued October 2, 2012 --
Before Judges Yannotti and Hoffman.
T.K. appeals from a final decision of the Civil Service Commission (Commission), which upheld his removal as a senior youth worker at the Ewing Residential Treatment Center (the Center) in the Department of Children and Families (Department), and a final decision of the Acting Director of the Division of Youth and Family Services (Division)*fn1 , finding that T.K. abused a fourteen-year-old resident of the Center, contrary to N.J.S.A. 9:6-8.21(c). We affirm.
On August 18, 2010, the Department received a report that T.K. had engaged in a physical altercation with J.S., one of the Center's residents, and J.S. had sustained a four-inch scratch to his neck during the incident. The Division's Conflict Investigations Unit (DCIU) conducted an investigation and issued a report concluding that the allegations of abuse were substantiated.
Among other things, the DCIU found that T.K.'s use of force was unjustified, inappropriate and excessive and placed J.S. at substantial risk of injury. T.K. challenged the DCIU's findings and requested an administrative hearing. The matter was referred to the Office of Administrative Law (OAL) for a hearing.
On September 14, 2010, the Department issued a preliminary notice of disciplinary action, charging T.K. with conduct unbecoming a public employee, N.J.A.C. 4A:2-2.3(a)(6), and other sufficient cause for discipline, N.J.A.C. 4A:2-2.3(a)(11). After a departmental hearing, a final notice of disciplinary action was issued, removing T.K. from employment as of September 10, 2010. T.K. appealed to the Commission from the disciplinary action and requested an administrative hearing. The Commission referred the matter to the OAL for a hearing.
The cases were consolidated and an Administrative Law Judge (ALJ) conducted a hearing on the appeals. At the hearing, J.S. testified that on August 18, 2010, he was residing in Cottage 1 at the Center with approximately seven other residents. J.S. said that he had a problem with bed-wetting. At approximately 5:30 a.m., T.K. woke J.S. and told him to use the restroom. Staff members typically checked with J.S. at regular intervals during the night to determine if he needed to use the restroom. J.S. told T.K. he did not have to relieve himself. T.K. insisted that J.S. go to the restroom. He removed J.S.'s blanket and shook his leg.
J.S. stood up and told T.K. to get out of his room. He started to put on his sneakers and tried to leave the room. According to J.S., T.K. grabbed his shirt and pushed him onto the bed. J.S. felt T.K.'s nails digging into his neck. He attempted to get T.K. off of him. J.S. said that it felt as if T.K. was holding him down by the neck. J.S. repeatedly told T.K. to "get off" of him.
Another worker, Jerome Neal (Neal), testified that he was working the 11:30 p.m. to 8:00 a.m. shift at the Center. He was in the control room between Cottages 1 and 2 and heard T.K. performing a routine check of the rooms. Neal heard T.K. tell J.S. to use the restroom. T.K. repeatedly asked J.S. whether he had to use the restroom. According to Neal, J.S. cursed at T.K. and told him to get out of his room.
Neal testified that T.K. asked J.S. where he was going, and J.S. replied that T.K should not worry about it. Thereafter, Neal heard J.S. ask T.K., "Why are you choking me?" Neal ran to the room and upon his arrival there, he observed T.S. sitting on J.S. Neal said that J.S. appeared to be pushing T.K. up, and T.K. appeared to be grabbing J.S.'s shirt.
Neal said that T.K.'s actions were inconsistent with the Division's crisis management protocol, and T.K. should have waited for assistance before trying to restrain J.S. Neal tried to separate J.S. from T.K. He said he observed what appeared to be fresh, open wounds on J.S.'s neck.
On August 18, 2010, Jannie Franicevich (Franicevich) was working the overnight shift as a ...