NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 5, 2013
On appeal from the Civil Service Commission, Docket No. 2011-3152.
Thalia Mendoza, appellant pro se.
Chasan, Leyner & Lamparello, attorneys for respondent Hudson County (Cindy Nan Vogelman, of counsel and on the brief; Robert E. Finn, on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondent Civil Service Commission (Todd A. Widger, Deputy Attorney General, on the statement in lieu of brief).
Before Judges Sapp-Peterson and Haas.
Appellant, Thalia Mendoza, is a corrections officer employed by the Hudson County Department of Corrections (HCDOC), who appeals from the final administrative agency decision of the Civil Service Commission (Commission) imposing a six-month suspension without pay for neglect of duty and insubordination due to her failure to provide HCDOC with a timely written report of her arrest and supporting documentation regarding the disposition of the criminal charges against her. We reverse.
On February 7, 2010, Jersey City Police arrested Mendoza and charged her with aggravated assault, N.J.S.A. 2C:12-1b, and possession of a weapon for unlawful purpose, N.J.S.A. 2C:39-4d. The charges stemmed from Mendoza's alleged attack upon her live-in boyfriend, Robert Hernandez, during a domestic altercation. When police arrived, Hernandez was bleeding from lacerations to the back of his head but refused medical attention.
The next day, HCDOC served a Preliminary Notice of Disciplinary Action (PNDA) upon Mendoza, charging her with neglect of duty, N.J.A.C. 4A:2-23a(7); conduct unbecoming a public employee, N.J.A.C. 4A:2-23a(6); insubordination, N.J.A.C. 4A:2-2.3(a); and "other sufficient cause, " in violation of N.J.A.C. 4A:2-2.3(a)(11). The incident giving rise to the charges was described in the PNDA as follows:
On February 8, 2010, at about 2353 hours, Officer Thalia S. Mendoza was arrested by Jersey City Police for assaulting her live[-]in boyfriend, Mr. Roberto Hernandez. Mr. Hernandez stated his girlfriend struck him in the back of his head with a[n] air freshener can. According to the [p]olice [r]eport submitted by Jersey City Police Officers Hickey and Burroughs[, ] Officer Mendoza stated she struck her boyfriend (Mr. Hernandez) in the back of his head with a can of air freshener because he would not let her go to the store to buy cigarettes.
At that time, Officer Mendoza was placed under arrest and removed from the residence.
. . . .
According to the report (10-003464) submitted by Jersey City Police Officers Hickey and Burroughs[, ] a]t approximately 2353 hours, they responded to a domestic violence dispute in a basement apartment at 31-33 High Street in Jersey City. Once they arrived at the location, the[y] witnessed Mr. Roberto Hernandez suffering from bleeding lacerations to the back of his head. Mr. Hernandez was questioned and stated, after a loud argument with his [c]orrection [o]fficer girlfriend (Thalia Mendoza)[, ] she struck him in the back of his head with a can of air freshener. According to the [p]olice report, Officer Mendoza stated she struck Mr. Hernandez with a can of air freshener because he would not let her go to the store to buy cigarettes. At that time, the can was placed into evidence (Bag #JM024042). Officer Mendoza['s] firearms identification card was also confiscated and Mendoza was placed under arrest.
Officer Thalia Mendoza was charged with [a]ggravated [a]ssault, [d]omestic [v]iolence, [and p]ossession of a [w]eapon for [u]nlawful [purposes, ] in violation of N.J.S. 2C:51-2 ([f]orfeiture of [p]osition). As well as, Hudson County Correctional Center Policy & Procedures and Rules and Regulations. (See attached [p]olice [r]eport).
Mendoza was immediately suspended and a departmental hearing scheduled for February 16, 2010. A revised PNDA, listing the same charges and description of the range of penalties was issued to Mendoza on February 12, 2010. A Loudermill hearing was held on February 17, 2010, after which Mendoza's suspension was continued pending disposition of the criminal charges and a final hearing on the merits of the administrative charges. On March 17, 2010, the original criminal charges were downgraded to simple assault, and that charge was dismissed on May 20, 2010.
On July 1, 2010, Mendoza was reinstated to her position. However, one week and one day later, HCDOC served a PNDA upon Mendoza, once again charging her with neglect of duty, conduct unbecoming an employee, insubordination, and other sufficient cause. The ...