Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

In re Hendrickson

Supreme Court of New Jersey

September 18, 2018

In the Matter of William R. Hendrickson, Jr., Department of Community Affairs

          Argued April 9, 2018

          On certification to the Superior Court, Appellate Division, whose opinion is reported at 451 N.J.Super. 262 (App. Div. 2017).

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

          Melanie R. Walter, Deputy Attorney General, argued the cause for respondent New Jersey Department of Community Affairs (Gurbir S. Grewal, Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel, and Melanie R. Walter, on the brief).

         Under N.J.S.A. 52:14B-10(c), when an agency, such as the Civil Service Commission, does not modify or reject the decision of an administrative law judge within a prescribed period, "the decision of the administrative law judge shall be deemed adopted as the final decision of the head of the agency." This appeal raises the following question: What is the judicial standard of review when the disciplinary decision of the administrative law judge (ALJ) is deemed adopted by the Civil Service Commission (the Commission) because the political branches did not appoint a sufficient number of Commissioners to form a quorum to review the decision?

         William R. Hendrickson, Jr., began his employment as a fire safety inspector with the Department of Community Affairs (DCA) in August 2012. While on duty on December 1, 2013, Hendrickson uttered an obscene and belittling remark about a female supervisor overheard by two of his colleagues. The DCA brought three disciplinary charges against Hendrickson. In September 2014, after a departmental hearing on the disciplinary charges, the DCA issued an order terminating Hendrickson's employment. Hendrickson appealed to the Commission, and his matter was transmitted to the Office of Administrative Law (OAL) for an evidentiary hearing.

         The ALJ held that Hendrickson uttered a gender slur in a workplace environment and therefore violated the State's policy prohibiting gender discrimination and engaged in conduct unbecoming a public employee. She found that Hendrickson became angry at his supervisor, Senior Inspector Knight, when he received her work order, and out of her presence, "in a loud voice [Hendrickson] called [Knight] a 'c**t, '" a remark overheard by two coworkers. According to the ALJ, the use of the gender slur was "disrespectful, sexist, discriminatory, unprofessional, in bad taste, improper, and extremely offensive." Such disparaging language, the ALJ noted, has the capacity to undermine workplace morale and, in this case, may have been overheard by members of the public.

         Although the ALJ was troubled by Hendrickson's failure to acknowledge his wrongdoing, she reasoned that removal was "too harsh" a punishment given Hendrickson's lack of a disciplinary record in the fifteen months before and nine months after the incident. She instead ordered Hendrickson suspended for six months.

         The ALJ forwarded the decision to the Civil Service Commission, and both parties filed exceptions. Hendrickson argued that the discipline was too severe, and the DCA argued that termination was the appropriate punishment.

         In accordance with N.J.S.A. 52:14B-10(c), the Commission had forty-five days to "adopt, reject or modify" the ALJ's findings and render a final decision. N.J.S.A. 11 A:2-3 provides that the Commission "shall consist of five members" and that three members "shall constitute a quorum." The Commission, however, did not have a sufficient number of appointed Commissioners to form a quorum. Without a quorum, the Commission could not operate to adopt, reject, or modify the ALJ's decision.

         Because the Commission did not and could not modify or reject the ALJ's report within the prescribed period, the ALJ's decision was "deemed adopted as the final decision of the head of the agency." See N.J.S.A. 52:14B-10(c). The DCA appealed the Commission's final agency decision to the Appellate Division. The contested issues concerned the quantum of discipline imposed by the ALJ and the level of deference that should be afforded to an ALJ's deemed-adopted decision by a reviewing court.

         The Appellate Division reversed the ALJ's decision and reinstated the DCA's termination of Hendrickson's employment. 451 N.J.Super. 262, 266 (App. Div. 2017). The panel acknowledged that the ALJ's decision "was 'deemed-adopted' as the Commission's final decision." Ibid. Nevertheless, the panel held that because the vacancies on the Commission disabled it from forming a quorum and acting, "the deemed-adopted statute does not require traditional deferential appellate review of the ALJ's decision." Ibid. In rejecting agency deference as its approach, the panel instead resorted to "the equally familiar standard of review for bench trials." Li at 273. In doing so, it stated that it would affirm the ALJ's factual findings "to the extent they are supported by substantial credible evidence in the record," but accord no deference to and review de novo the ALJ's legal conclusions. Ibid. It determined that the ALJ's factfindings were "supported by the record" but that "the propriety of the disciplinary sanction" was "a question of law" subject to de novo review. Li at 274. The panel concluded, as a matter of law, that "the doctrine of progressive discipline should be bypassed" because "[t]he incident violated the State's anti-discrimination policy and societal norms," thus justifying the reinstatement of Hendrickson's termination. Ibid.

         The Court granted Hendrickson's petition for certification. 231 N.J. 143 (2017).

         HELD: The appellate tests for reviewing an administrative disciplinary sanction and a criminal sentence are virtually the same. Therefore, the Appellate Division erred in suggesting that appellate review of a disciplinary sanction imposed by a judge is de novo and different from traditional appellate review of an agency determination. Additionally, merely because the factual findings and rulings made by ALJs are oftentimes contingent on whether an agency accepts, rejects, or modifies an ALJ's decision does not mean that ALJs are second-tier players or hold an inferior status as factfinders. Based on its deferential standard of review, the Court cannot conclude that the ALJ's decision is shocking to one's sense of fairness.

         1. N.J.S.A. 52:14B-10 generally sets forth the procedures for resolving contested agency cases submitted to the OAL. The current version of subsection (c) is the product of a 2014 amendment that set a strict deadline for administrative agencies to "adopt, reject or modify" an ALJ's decision - unless all the parties agreed to an extension. Ibid. Under the amendment, when the agency does not act within the forty-five-day statutory timeframe - or within the single extension period not to exceed forty-five days - the ALJ's decision is "deemed adopted as the final decision of the head of the agency." Ibid. In this way, the Legislature ensured that there would always be a timely final agency decision, (pp. 14-15)

         2. Traditionally, courts give substantial deference to an agency's imposition of a disciplinary sanction, based on its "expertise and superior knowledge of a particular field." In re Herrmann, 192 N.J. 19, 28 (2007). "In light of the deference owed to such determinations, when reviewing administrative sanctions, 'the test... is whether such punishment is so disproportionate to the offense, in light of all the circumstances, as to be shocking to one's sense of fairness.'" Li at 28-29. In the present case, the Appellate Division held that a different standard of review should apply to an ALJ's disciplinary decision that becomes a final agency determination because the Commission was unable to form a quorum to act. The panel opted to apply the standard of review for bench trials and declared that it would defer to the ALJ's factfindings, but not to the ALJ's conclusions of law. The panel evidently classified the ALJ's disciplinary sanction as a legal conclusion and therefore erroneously engaged in a de novo review. An abuse of discretion standard, however, applies to the judicial imposition of a sentence, State v. Roth, 95 N.J. 334, 364-65 (1984), or a disciplinary sanction, In re Herrmann, 192 N.J. at 28-29. Appellate deference extends to a trial judge's imposition of a sentence, whether the judge or a jury sits as the trier of fact. Appellate courts will not exercise judicial power to modify a sentence unless "the application of the facts to the law is such a clear error of judgment that it shocks the judicial conscience." Roth, 95 N.J. at 364. The appellate tests for reviewing an administrative disciplinary sanction and a criminal sentence are virtually the same. Therefore, the Appellate Division erred in suggesting that appellate review of a disciplinary sanction imposed by a judge is de novo and different from traditional appellate review of an agency determination, (pp. 16-19)

         3. Given the deferential standard of review applicable here, the ALJ's six-month suspension must be sustained. A belittling gender insult uttered in the workplace by a state employee is a violation of New Jersey's policy against discrimination and Hendrickson's conduct was unbecoming a public employee. The ALJ rebuked Hendrickson's language in the strongest terms in sustaining the charges against him. Nevertheless, in setting the appropriate discipline, the ALJ found that Hendrickson's behavior amounted to an isolated incident and warranted a lesser penalty than the extreme sanction of termination. The Court cannot conclude that the ALJ's decision is shocking to one's sense of fairness, (pp. 19-21)

         The judgment of the Appellate Division is REVERSED and the judgment of the Administrative Law Judge is REINSTATED.

          CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, PATTERSON, FERNANDEZ-VINA, SOLOMON, and TIMPONE join in JUSTICE ALBIN's opinion.

          OPINION

          ALBIN JUSTICE

         Under N.J.S.A. 52:14B-10(c), when an agency, such as the Civil Service Commission, does not modify or reject the decision of an administrative law judge within a prescribed period, "the decision of the administrative law judge shall be deemed adopted as the final decision of the head of the agency." This appeal raises the following question: What is the judicial standard of review when the disciplinary decision of the administrative law judge (ALJ) is deemed adopted by the Civil Service Commission (the Commission) because the political branches did not appoint a sufficient number of Commissioners to form a quorum to review the decision?

         In this case, the Department of Community Affairs (DCA) terminated from employment Fire Inspector William R. Hendrickson, Jr., for various disciplinary infractions. Hendrickson appealed that decision to the Commission, and the matter was referred to the Office of Administrative Law (OAL) to be heard as a contested case. An ALJ conducted a hearing and sustained the disciplinary charges, but rejected termination as the appropriate discipline and instead imposed a six-month suspension.

         The ALJ's decision was then submitted to the Commission. At the time, the political branches had not appointed the requisite number of Commissioners to constitute a quorum. Without a quorum, the Commission could not adopt, reject, or modify the ALJ's decision within the prescribed period, and therefore that decision was "deemed adopted" as the Commission's final decision.

         The DCA appealed the discipline imposed by the ALJ. The Appellate Division held that the historical deference due to an agency's decision on appellate review does not apply "when an agency's inability to act on a timely basis is entirely involuntary." In re Hendrickson, 451 N.J.Super. 262, 272 (App. Div. 2017). The panel concluded that, "at a minimum, an ALJ's deemed-adopted decision should not be reviewed deferentially." Id. at 273. Nevertheless, the panel afforded deference to the ALJ's factual findings, as it would in the case of a bench trial. Ibid. The panel, however, maintained that no deference would be accorded to the ALJ's legal conclusions -- the discipline imposed. Id. at 273-74. The panel reviewed the disciplinary sanction de novo, reversed the ALJ's determination, and reinstated the DCA's termination of Hendrickson as the appropriate discipline. Id. at 274-75.

         We now reverse. The ALJ's decision was "deemed adopted" as the final agency determination pursuant to N.J.S.A. 52:14B-10(c). In this unusual setting, the ALJ's decision was deemed adopted because a shorthanded Commission was disabled from acting. Whether we apply the traditional standard of appellate deference to an agency's imposition of discipline or the deferential standard of appellate review to a trial court's sentencing decision, the test remains the same -- was the discipline imposed by the ALJ so disproportionate that it shocks the conscience or one's sense of fairness? See In re Herrmann, 192 N.J. 19, 28-29 (2007) (appellate review of agency's disciplinary sanction); State v. Roth, 95 N.J. 334, 364-65 (1984) (appellate review of trial court's sentence). No one disputes that this appeal is from a final agency determination. Because the appellate standard of review is practically identical whether the ALJ's deemed-adopted decision is compared to a trial court's sentencing or an agency's disciplinary determination, in this instance giving the name "agency deference" to the standard is a sensible approach.

         In applying a deferential standard, we do not substitute our judgment for that of the ALJ merely because we might have come to a different outcome. So long as reasonable minds might differ about the appropriateness of the disciplinary ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.