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In re Hendrickson

Superior Court of New Jersey, Appellate Division

July 19, 2017


          Argued December 21, 2016

         On appeal from the Civil Service Commission, Docket No. 2015-859.

          Melanie R. Walter, Deputy Attorney General, argued the cause for appellant New Jersey Department of Community Affairs (Christopher S. Porrino, Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Ms. Walter, on the briefs).

          Arnold Shep Cohen argued the cause for respondent William Hendrickson (Oxfeld Cohen, P.C., attorneys; Mr. Cohen, of counsel and on the brief).

          Christopher S. Porrino, Attorney General, attorney for respondent Civil Service Commission (Pamela N. Ullman, Deputy Attorney General, on the statement in lieu of brief).

          Before Judges Alvarez, Manahan, and Lisa. [1]


          ALVAREZ, P.J.A.D.

         The Department of Community Affairs (DCA) appeals from a December 21, 2015 administrative law judge's (ALJ) decision reducing the Bureau of Fire Code Enforcement's[2] (Bureau) disciplinary action terminating William Hendrickson, a fire safety inspector, to a six-month suspension. Because the Civil Service Commission (CSC or Commission) did not have a full roster of three members constituting a quorum, N.J.S.A. 11A:2-3, it could not adopt or reject the ALJ's decision until months after the mandatory forty-five-day time frame elapsed. See N.J.S.A. 52:14B-10(c). Thus the ALJ's initial decision was "deemed-adopted" as the Commission's final decision.[3] Ibid.

          For the reasons that follow, we conclude that when the lack of a quorum attributable to vacancies caused the agency inaction, the current version of the deemed-adopted statute does not require traditional deferential appellate review of the ALJ's decision. Applying the standard of review applicable to bench trials, we vacate the six-month suspension and reinstate the DCA's decision ending Hendrickson's employment.

         After the departmental hearing, the DCA issued a final notice of disciplinary action (FNDA) imposing the sanction of removal. Hendrickson appealed and the matter was transmitted to the Office of Administrative Law (OAL) for a hearing as a contested case under the Administrative Procedure Act (APA), N.J.S.A. 52:14B-1 to -15, and the Uniform Administrative Procedure Rules, N.J.A.C. 1:1-1.1 to -21.6.

         The preliminary notice of disciplinary action (PNDA) that followed the incident charged Hendrickson with conduct unbecoming an employee, N.J.A.C. 4A:2-2.3(a)(6); discrimination that affects equal employment opportunity, including sexual harassment, N.J.A.C. 4A:2-2.3(a)(9); and other sufficient cause, in violation of New Jersey's state policy prohibiting discrimination in the workplace, N.J.A.C. 4A:2-2.3(a)(12).

         The incident that triggered disciplinary proceedings was described by the eyewitnesses, two of Hendrickson's co-workers, at the administrative law hearing. Briefly, on December 1, 2013, when Hendrickson and the others began their shifts in the parking lot of a sports stadium, a supervisor modified Hendrickson's work assignment. Hendrickson was overheard by his co-workers calling his supervisor, a woman, a "f---ing c-t." Hendrickson testified that he did not remember using that language, but admitted saying that he wished "she [would get] a disease."

         The ALJ's written decision found the outburst occurred as Hendrickson's co-workers had described, and further found Hendrickson's failure of memory to be incredible. Since the language he used was "akin to a racial slur[, ]" the ALJ therefore concluded that DCA had met its burden of proof by a preponderance of the credible evidence.

         The ALJ also observed that Hendrickson's use of obscenities in the presence of other employees hurt the morale of both the supervisor as well as the co-workers who heard "the gender slur." Furthermore, because the incident occurred in a parking lot, she took "into consideration the possibility that members of the public also heard the gender slur and inappropriate comments." The ALJ held that Hendrickson had violated the New Jersey state policy prohibiting discrimination in the workplace, defined in the handbook he was provided when he commenced employment with the Bureau fifteen or sixteen months prior.

         In weighing the appropriate discipline for the misconduct, the ALJ took into account that this was the first blemish in Hendrickson's disciplinary record, and that he incurred no other charges for the months he worked with the Bureau thereafter. Although troubled by his denial of having made the statement by virtue of lack of memory, and refusal to acknowledge his wrongdoing, she opined that removal was unwarranted. Considering "the nature of the offense, the concept of progressive discipline, and the employee's prior work record [], " the ALJ determined that "removal was excessive []" and that a six-month term of suspension sufficed. The OAL transmitted the initial decision to the CSC and the parties filed exceptions.

         On the first date the initial decision was scheduled for review by the Commission, it consisted of only one member, the other seats being vacant.[4] Accordingly, the CSC obtained a forty-five-day extension to March 20, 2016, pursuant to statute. See N.J.S.A. 52:14B-10(c). Because on that date it still did not have a sufficient number of appointed members to constitute a quorum, the agency requested a second forty-five-day extension from the parties. Hendrickson did not consent. See id.; N.J.A.C. 1:1-18.8(f) ("Extensions for filing initial or final decisions may not exceed [forty-five] days from the original decision due date. Additional extensions of not more than [forty-five] days each ...

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