ESMAY PARCHMENT VS. CITY OF EAST ORANGE(L-182-12, ESSEX COUNTY AND STATEWIDE)

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-3105-14T4

IN THE MATTER OF RAMONA CARTER

Argued November 2, 2016 – Decided March 7, 2017

Before Judges Alvarez and Manahan.1

On appeal from the Civil Service Commission, Docket No. 2013-2328.

Mark W. Catanzaro argued the cause for appellant Ramona Carter.

Kristina E. Chubenko argued the cause for respondent Mercer County Department of Public Safety (Arthur R. Sypek, Jr., Mercer County Counsel, attorney; Ms. Chubenko, of counsel and on the brief).

Christopher S. Porrino, Attorney General, attorney for respondent Civil Service Commission (Susan C. Sharpe, Deputy Attorney General, on the statement in lieu of brief).

1 Hon. Carol E. Higbee was a member of the panel before whom this case was argued. The opinion was not approved for filing prior to Judge Higbee's death on January 3, 2017. Pursuant to R. 2:13- 2(b), "Appeals shall be decided by panels of 2 judges designated by the presiding judge of the part except when the presiding judge determines that an appeal should be determined by a panel of 3 judges." The presiding judge has determined that this appeal remains one that shall be decided by two judges. Counsel has agreed to the substitution and participation of another judge from the part and to waive reargument.

Ramona Carter, a Mercer County corrections officer, appeals

from the February 4, 2015 final decision of the Civil Service

Commission (Commission) imposing a fifteen-working-day suspension

and a $152.23 fine. We affirm in part, reverse in part, and remand

for reconsideration of the penalty imposed.

We briefly summarize the record developed during the hearing

that followed transmission of Carter's appeal to the Office of

Administrative Law (OAL) under the Administrative Procedure Act,

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. A July 22, 2012 preliminary

notice of disciplinary action (PNDA) charged Carter with the

following violations: conduct unbecoming a public employee,

N.J.A.C. 4A:2-2.3(a)(6), and other sufficient cause, N.J.A.C.

4A:2-2.3(a)(11), specifically violation of provisions of the

Mercer County Public Safety Table of Offenses and Penalties: C-9

Step 2 – "insubordination: intentional disobedience or refusal to

accept reasonable order[;]" C-8 – "[f]alsification: intentional

misstatement of material fact in connection with work . . . or in

any record [or] report[;]" and D-15 Step 2 - violation of standard

operating procedure (SOP) 004 (employee handbook), 007 (custody

break periods), and 245 (post orders-relief officer).

2 A-3105-14T4 At the departmental hearing, Carter was found guilty of all

charges except the violation of SOP 245. The hearing officer

imposed a suspension of twenty-five working days and a fine of

one-half day's pay, and the County's final notice of disciplinary

action (FNDA) was issued on February 19, 2013. The appeal to the

Civil Service Commission and transmittal to the OAL followed.

Lieutenant Michael Kownacki testified at the OAL hearing that

on the morning of June 15, 2012, he was the shift commander from

11:00 p.m. to 7:00 a.m. Carter was then working as a relief

officer 4, meaning her sole duties were to relieve other officers

when they took their breaks. At approximately 5:00 a.m., he

radioed Carter that she was to relieve an Officer Poli in Control

Room 3 (CR-3) at 5:45 a.m. She telephoned back confirming her

receipt of the order.

Poli had to be relieved so he could travel to a nursing home

for his overtime assignment as relief to an Officer Lane, who in

turn had to return to the Mercer County Correctional Center at

7:00 a.m. to begin his regularly scheduled shift as a

transportation officer. At approximately 6:05 a.m., Poli called

Kownacki because his relief had not arrived. Kownacki called

Carter over the radio, and received a response from the CR-2

officer stating that she was in the CR-2 bathroom. Kownacki asked

3 A-3105-14T4 that Carter call him as soon as she left the bathroom, and he then

contacted an Officer Jiovany to relieve Poli.

When Carter called Kownacki, he asked her why she had not

relieved Poli at 5:45 a.m., and she responded that she needed to

use the bathroom. Kownacki ordered her to relieve Poli in CR-3

and said he would call her later. At approximately 6:25 a.m.,

Kownacki ordered Carter to write a report explaining her failure

to relieve Poli.

Kownacki testified that when Carter submitted her incident

report, it was false and inaccurate. The report read that Carter

was not asked to relieve Poli until 6:00 a.m., that she did so,

and only then used the bathroom. Kownacki charged Carter with the

violation of SOP 004, "Employee Handbook," and SOP 007, "Custody

Break Periods."

Carter's prior disciplinary history included a written

reprimand for lateness on April 17, 2003, a one-day suspension for

unsatisfactory attendance on July 31, 2003, two days fine at

$608.80 per day for insubordination on May 22, 2010, two written

reprimands issued in August 2012, one for violations of a rule,

regulation or policy, and the other for chronic absenteeism, and

a five-day suspension for chronic excessive absenteeism on

10/27/12.

4 A-3105-14T4 Captain Richard Bearden, Mercer County's second witness,

stated that he viewed video footage of the hallway outside CR-2

before he drafted Carter's charges, and saw her entering CR-2 at

approximately 4:30 a.m. and leaving at approximately 6:00 a.m. He

assumed she remained in CR-2 while on her thirty-minute break from

5:00 to 5:30 a.m., and the additional thirty minutes which

followed.

On the stand, Carter acknowledged receiving Kownacki's call

at 5:00 a.m., although she could not recall whether he gave her a

specific time to relieve Poli. She said she had a fibroid

condition which made her menstrual cycles difficult to manage

while at work but did not submit medical documentation in support

of her claim.

Carter admitted having made mistakes in her report, including

that she was ordered to relieve Poli at 5:00 a.m. not 6:00 a.m.

She also admitted that she erred when she said she wrote in the

report that she went to the bathroom only after relieving Poli.

When asked why she did not amend her report once it came to her

attention that it contained inaccuracies, she responded that she

was "not feeling well" and "did [not] think to . . . amend the

report."

The administrative law judge (ALJ) concluded that Carter was

a credible witness. Nonetheless, the ALJ held the County met its

5 A-3105-14T4 burden with regard to the charge of conduct unbecoming a public

employee by a preponderance of the credible evidence. The ALJ

noted Carter had worked for Mercer County for several years and

"understood the high standard of conduct expected of her." If she

was having medical problems, the ALJ found she could have readily

informed someone and requested her assignment be given to another.

Thus, the ALJ concluded her failure to appropriately respond to

the situation was conduct unbecoming.

As defined within Mercer County's table of offenses, the

charge of insubordination required willful disobedience. The ALJ

concluded that although Carter had "exercised poor judgment in not

informing her supervisor" of her difficulties, "[h]er actions did

not reflect intentional disobedience or refusal to accept an

order."

Moreover, the ALJ did not view Carter's failure to correct

the errors in her report as deliberate misstatements of fact, the

second aspect of the insubordination charge. However, he found

that the violation of SOP 004, relating to the submission of

accurate reports, was technical and the County proved that charge.

With regard to violation of SOP 007 regarding break periods,

the ALJ concluded that Carter's decision to remain in CR-2 was not

unreasonable in light of her physical issues. Thus although she

engaged in conduct unbecoming a public employee, the only

6 A-3105-14T4 additional charge of which she was guilty was the violation of SOP

004. Accordingly, the ALJ reduced her penalty from the twenty-

five-working-day suspension and fine of one-half day's pay imposed

by the hearing officer to a five-day suspension and no fine. He

affirmed the fine of one-half day's pay.

The Commission disagreed both as to the findings of guilt as

well as the penalty reduction. The Commission agreed Carter was

guilty of conduct unbecoming, but rejected the notion that her

failure to submit an accurate report or correct it once she learned

of the mistakes did not constitute insubordination. The Commission

also equated Carter's failure to advise anyone of her inability

to comply with the order with insubordination.

The Commission, concerned that the ALJ did not fully discuss

Carter's disciplinary history, imposed a more severe penalty. In

lieu of the ALJ's five-day suspension, the Commission imposed a

fifteen-working-day suspension.

On appeal, Carter contends that she should be acquitted of

the insubordination and falsification charges. She argues that

the Commission employed a more expansive definition than those

found in the Table of Offenses and Penalties.

Our role in reviewing administrative agency decisions is

limited. In re Stallworth, 208 N.J. 182, 194 (2011). We affirm

such decisions where they are supported by the evidence, even if

7 A-3105-14T4 we may question the wisdom of the decision or would have reached

a different result. Ibid. A "strong presumption of reasonableness

attaches to [an agency decision]." In re Carroll, 339 N.J. Super.

429, 437 (App. Div.) (internal quotation marks omitted), certif.

denied, 170 N.J. 85 (2001). An agency's factual findings are

binding upon us when supported by adequate, substantial, and

credible evidence. We reverse an agency's decision only if we

find it to be "arbitrary, capricious, or unreasonable, or [] not

supported by substantial credible evidence in the record as a

whole." Stallworth, supra, 208 N.J. at 194 (internal quotation

marks omitted). The burden of establishing that agency action is

arbitrary, capricious, or unreasonable is on the appellant. Bueno

v. Bd. of Trs., 422 N.J. Super. 227, 234 (App. Div. 2011).

In determining whether agency action is arbitrary,

capricious, or unreasonable, we ask if it violates express or

implied legislative policies, if the record contains substantial

evidence to support the findings on which the agency based its

action, and whether in applying the legislative policies to the

facts, the agency erred in reaching a conclusion that could not

have been reasonably reached. Stallworth, supra, 208 N.J. at 194.

Carter claims that insubordination is narrowly defined in her

charges as requiring intentional conduct. The Commission's

decision, however, states: "[a]ppellant's failure to not advise

8 A-3105-14T4 anyone of her inability to promptly follow the order given, whether

intentional or not, can be considered insubordination since the

Commission's definition of insubordination is much more expansive

than the one utilized by the ALJ." [Emphasis added.]

The Commission viewed Carter's failure to more responsibly

address her situation as possibly unintentional. We therefore

agree that the Commission erred in concluding Carter's conduct

constituted insubordination. Only intentional behavior supports

the charge. If in the Commission's opinion Carter's conduct might

have been unintentional, then finding her guilty of the

disciplinary charge was a decision not supported by the credible

evidence in the record. This is true regardless of the definition

of insubordination used——which at a minimum requires intentional

conduct.

We do not agree with Carter regarding her failure to correct

her report. She did not accurately state either the time she was

ordered to relieve Poli, or accurately describe her whereabouts.

Carter did not attempt to correct her misstatements until she was

on the stand. That conduct falls squarely within the definition

of falsification found in the PNDA. It was an "[i]ntentional

misstatement of material fact in connection with work . . . in any

[] report . . . ." Accordingly, on this charge we affirm. The

evidence, and the inferences drawn from it, support the

9 A-3105-14T4 Commission's decision with regard to falsification. See Campbell

v. N.J. Racing Comm'n, 169 N.J. 579, 587 (2001). It was not

arbitrary, unreasonable, or capricious, and was clearly supported

by the evidence in the record.

Because we reverse in part and affirm in part, the matter is

remanded for reconsideration of the appropriate penalty in light

of our decision.

Affirmed in part, reversed in part, and remanded for

reconsideration of the penalty.

10 A-3105-14T4