July 10, 2013
IN THE MATTER OF BRUCE COOPER.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 18, 2013
On appeal from the Civil Service Commission, Docket No. 2009-1286.
Alterman & Associates, LLC, attorneys for appellant Bruce Cooper (Stuart J. Alterman, on the brief).
John J. Hoffman, Acting Attorney General, attorney for respondent Civil Service Commission (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Brandon Hawkins, Deputy Attorney General, on the brief).
Before Judges Parrillo and Messano.
Appellant Bruce Cooper appeals from a final agency decision of the Civil Service Commission (Commission) finding him in violation of N.J.A.C. 4A:2-2.3(a)(6), conduct unbecoming a public employee, and several Administrative Orders, and imposing discipline of forty-days suspension. We affirm.
Cooper is an eight-year veteran police officer of the Department of Human Services (DHS), assigned to a regional office of the New Jersey Division of Child Protection and Permanency (DCPP), as part of its security detail. Naomi Minus-Jackson is a social worker with DCPP at the same regional office. Cooper would assist Minus-Jackson and others by providing security during home visits and in performing background checks. According to Minus-Jackson, she and Cooper were "co-workers, work friends, " and had no relationship outside of the workplace.
Minus-Jackson was planning a wedding and expressed her desire to lose some weight for the occasion to some of her co-workers. Cooper mentioned to her that he and his wife were using a certain diet drink that was helping them lose weight and that Minus-Jackson might want to try the product. Approximately one week later, Minus-Jackson found two cans of a diet drink on her desk. She brought them home but did not drink them. Over the ensuing weeks, Cooper asked Minus-Jackson several times if she tried the drinks and every time she responded in the negative. As Cooper's actions became more persistent, Minus-Jackson felt increasingly intimidated and even reported the matter to her supervisors.
On January 20, 2008, Cooper called Minus-Jackson into his office and again asked her if she tried the drinks he left for her. According to Minus-Jackson, Cooper stated he was disappointed in her for not trying them and informed her he was trying to sell them. Cooper, an African-American, told her that she did not get back to him because she was African-American, and that all the white people he gave the drinks to got back to him sooner. Cooper began raising his voice and a co-worker intervened by pretending Minus-Jackson had a phone call at her desk.
Later that day, Minus-Jackson found on her desk a copy of the cover of a book titled, "The Impact of Slavery on African-Americans." She immediately threw it in her trashcan. Soon after, Cooper approached her at the workplace and tried to discuss the book. Minus-Jackson told Cooper that she did not want to discuss the book, as it was insulting to her and walked away.
Minus-Jackson returned to work the next day but was still visibly upset. Cooper again confronted her several times during the day in an aggressive way, even blocking her path on one instance. Minus-Jackson repeatedly told Cooper he was "out of line." Cooper later sent her an insulting email. Her job performance began to suffer so she reported his actions to her superior. Other co-workers testified to these confrontations.
Detective Lance Geisel, a DHS police officer, investigated this matter. Geisel interviewed Cooper, Minus-Jackson and numerous witnesses. In Cooper's office, Geisel observed promotional materials for diet drinks. According to Geisel, Cooper admitted to selling diet drinks while on duty and that he did not secure permission to do so. Cooper had also previously signed an acknowledgement form indicating he received and understood his agency's code of ethics.
Cooper offered a different version. He tried the health drink called "Noni Juice, " liked it and became a distributor, selling it to friends. He had several items of Noni Juice merchandise in his office. Cooper sold Noni Juice to DCPP employees and often had conversations about Noni Juice during work. According to Cooper, his supervisors were aware of his activity but never told him to stop. Cooper also claims that he and Minus-Jackson were close friends, that he gave her some samples of the Noni Juice to help her lose weight, and only confronted her because he was concerned about her well-being. Cooper denied that he ever acted aggressively towards her and that her co-workers simply misconstrued the situation. He gave Minus-Jackson a book about "slave mentality" because they had discussed race-related issues previously and was unrelated to the Noni Juice matter.
On September 17, 2008, Cooper received two final notices of disciplinary action issued by DHS. The first final notice suspended Cooper for five days as a result of violating N.J.A.C. 4A:2-2.3(a)(6), conduct unbecoming a public employee; Administrative Order 4:08 B.2, neglect of duty; Administrative Order 4:08 D.17, engaging in financial transactions between employees; and Administrative Order 4:08 E.1, violation of rule, regulation, policy, procedural order or administrative decision.
The second notice of disciplinary action suspended Cooper for ten days for violations of Administrative Order 4:08 C.21, vending, soliciting or collecting a contribution on state property without authorization; Administrative Order 4:08 C.23, distribution of written or printed material on premises without authorization; and Administrative Order 4:08 E.1, violation of a rule, regulation, policy, procedural order or administrative decision. Cooper appealed these suspensions and the matter was transmitted to the Office of Administrative Law (OAL) for hearing as a contested matter.
At the close of evidence, the Administrative Law Judge (ALJ) issued an Initial Decision, crediting the testimony of Minus-Jackson, sustaining all the charges, and increasing Cooper's suspension to forty days. The ALJ found Cooper violated N.J.A.C. 4A:2-2.3(a)(6), stating that the "conduct of actively soliciting merchandise during working hours and being confrontational by using racial intimidation and bullying tactics constitutes unbecoming conduct when it did, as here; distract employees from their assigned tasks." The ALJ also found that Cooper's conduct of "actively selling a product during working hours constitutes neglecting duty and willfully failing to devote to the tasks of the position for which an individual is hired. . . . [B]ecause a person cannot do the job for which [he] was hired and conduct a personal business at the same time." Moreover, because Cooper sold Noni Juice to other employees while on duty, he was found to have violated Administrative Order 4:08 B.17, which prohibits financial transactions between employees, as well as Administrative Order 4.08 E.1, because Cooper engaged in outside employment without prior approval and failed to disclose that outside activity, a violation of a rule, regulation and policy.
On the second notice of disciplinary action, Cooper was found to have violated Administrative Order 4:08 C.21, because he admitted to selling a product on State property without being authorized to do so, and Administrative Order 4:08 C.23, which prohibits distribution of written or printed matter on the premises without authorization, because he hung a sign-up sheet, handed out Noni Juice fliers and displayed Noni Juice posters.
Having considered the seriousness of the offense, the concept of progressive discipline, and the employee's prior record, the ALJ increased the suspension, reasoning:
Since no disciplinary record has been presented by the [DHS], it is assumed that none exists. It is therefore commendable that Officer Cooper has served eight years with the [DHS] and has an unblemished record. However, it is also noted that Officer Cooper has violated regulations which recommend, even for a first violation, a penalty up to removal from his position. In addition, what is troubling in this matter is [Cooper's] attitude that all of his offenses are excusable as someone else's fault. As to the technical violations of conducting business without authorization and the related charges, [Cooper] defends himself by saying he was not specifically trained not to do so. Even what is more troubling is the fact that he excuses his own racial intimidation in bullying of a co-worker as an over-reaction on her part and those of their co-workers and permissible as a result of his friendship with [Minus-Jackson]. Officer Cooper has patently refused to accept any responsibility for his actions even though as a police officer he has a higher responsibility for them. I therefore FIND that Officer Cooper should be penalized with a suspension of thirty days for his violation of N.J.A.C. 4A:2-2.3(a)6, and ten days for his multiple violations of Administrative Order 4:08.
On Cooper's administrative appeal, the Commission, on its de novo review, adopted the ALJ's findings of facts and conclusions as well as the recommendation to modify the suspension to forty days. The Commission concluded that, "all of the testimony indicated that [Cooper] inappropriately sold juice beverages at work without authorization, and he inappropriately confronted and belittled a co-worker, which was verified by several witnesses." The Commission added, "[Cooper] is a Police Officer, and as such, he is held to higher standard of conduct and should not have engaged in intimidating behavior toward a civilian co-worker, who would more likely be intimidated by [Cooper] given his position of authority."
In reviewing the penalty de novo, the Commission upheld the modification, reasoning:
[T]he ALJ determined that [Cooper's] prior employment record [of no disciplinary action] was to be given little weight because [Cooper's] utterly offensive and belittling treatment of a co-worker, and his action of selling juice beverage products on State premises without permission. The Commission agrees. In the instant matter, [Cooper's] offenses are sufficiently egregious to warrant a 40 working day suspension. Moreover, the Commission is mindful that a Police Officer is a special kind of public employee. Police Officers hold highly visible and sensitive positions within the community and the standard for such an employee includes good character and an image of utmost confidence and trust.
On appeal, Cooper argues the Commission acted arbitrarily in upholding the disciplinary charges and imposing a forty-day suspension. We disagree.
The scope of judicial review of administrative agency action is limited. In re Herrmann, 192 N.J. 19, 27 (2007). "An administrative agency's final quasi-judicial decision will be sustained unless there is a clear showing that it is arbitrary, capricious, or unreasonable, or that it lacks fair support in the record." Id. at 27-28. In reviewing an agency's decision, the reviewing court should consider:
(1) whether the agency's action violates express or implied legislative policies, that is, did the agency follow the law; (2) whether the record contains substantial evidence to support the findings on which the agency based its action; and (3) whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors.
[Mazza v. Bd. of Trs., 143 N.J. 22, 25 (1995).]
A court owes "substantial deference to the agency's expertise and superior knowledge of a particular field." In re Herrmann, supra, 192 N.J. at 28. Deference controls even if the court would have reached a different result. Ibid. Deference is also accorded to the credibility determinations of the ALJ, who had the benefit of hearing and seeing the witnesses. See State v. Locurto, 157 N.J. 463, 474 (1999) ("Appellate courts should defer to trial courts' credibility findings that are often influenced by matters such as observations of the character and demeanor of witnesses and common human experience that are not transmitted by the record.").
Governed by this standard, we are satisfied that the disciplinary violations are supported by substantial, credible evidence in the record. In this regard, "conduct unbecoming" an officer 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." In re Emmons, 63 N.J.Super. 136, 140 (App. Div. 1960) (citation omitted). Here, Cooper's demeaning and belittling behavior was meant to intimidate Minus-Jackson into purchasing his diet drink. Cooper repeatedly confronted Minus-Jackson, even blocking her path one time. Her co-workers, who assisted Minus-Jackson during one of the confrontations by pretending she had a phone call, corroborated her account of Cooper's behavior. Cooper also resorted to racial intimidation of Minus-Jackson. Such behavior clearly constitutes conduct unbecoming a police officer, who is held to an even higher standard.
There is also sufficient, credible evidence to sustain the numerous violations of Administrative Order 4:08. Cooper himself admitted to selling diet drinks while on duty without permission and posted advertising materials in his office. Cooper clearly engaged in personal financial transactions with co-workers while on duty and, by selling product during working hours, he was neglectful of his duties, having failed to devote full attention to his work obligations.
As regards the sanction imposed, we accord similar deference to any agency's disciplinary measures. In re Herrmann, supra, 192 N.J. at 34-35. In exercising its authority to modify a sanction, "the Court can do so only when necessary to bring the agency's action into conformity with its delegated authority. The Court has no power to act independently as an administrative tribunal or to substitute its judgment for that of the agency." In re Polk, 90 N.J. 550, 578 (1982). "[T]he test in reviewing administrative sanctions is whether such punishment is so disproportionate to the offense, in the light of all the circumstances, as to be shocking to one's sense of fairness." Ibid. (internal quotation marks and citation omitted).
The imposition of a forty-day suspension is supported by substantial evidence in the record. In meting out the penalty, the Commission properly considered the nature of the offense, the concept of progressive discipline, and Cooper's prior record. The Commission correctly noted that the concept of progressive discipline is not absolute and that some disciplinary infractions are so serious that removal is appropriate. Despite Cooper's claim to the contrary, the Commission acknowledged his clean disciplinary record, but gave it less weight because of the egregious nature of the offense, which subjected Minus-Jackson to repeatedly offensive and belittling treatment. Given the higher standard of conduct required of police officers, we discern no abuse of agency discretion in imposing a forty-day suspension, as proportionate to the seriousness of the violations.