IN THE MATTER OF CAROL FOX, BOROUGH OF KEYPORT POLICE DEPARTMENT (NEW JERSEY CIVIL SERVICE COMMISSION)

• Court: New Jersey Superior Court Appellate Division
• Decided: August 8, 2019
• Docket: A-4092-17T3
• Status: Unpublished

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-4092-17T3

IN THE MATTER OF CAROL FOX, BOROUGH OF KEYPORT POLICE DEPARTMENT. _____________________________

Submitted June 4, 2019 – Decided August 8, 2019

Before Judge Hoffman and Geiger.

On appeal from the New Jersey Civil Service Commission, Docket No. 2018-1033.

Di Francesco Bateman Kunzman Davis Lehrer & Flaum, PC, attorneys for appellant Carol Fox (Richard Paul Flaum and Robert Philip Manetta, on the briefs).

Mc Manimon Scotland & Baumann LLC, attorneys for respondent Borough of Keyport Police Department (Leslie G. London and Thaddeus John Del Guercio, on the brief).

Gurbir S. Grewal, Attorney General, attorney for respondent Civil Service Commission (George Norman Cohen, Deputy Attorney General, on the statement in lieu of brief).

PER CURIAM Carol Fox appeals from a final determination of the Civil Service

Commission (Commission) terminating her position as a communications

officer / dispatcher (dispatcher) with the Borough of Keyport Police Department

(department) for leaving her dispatch post prior to her relief arriving, in violation

of specific rules and department policies and practices. The Commission

adopted the decision of the Administrative Law Judge (ALJ). We affirm.

Because ALJ Sarah G. Crowley comprehensively detailed the relevant

factual and procedural history in her written opinion, we briefly recount those

facts necessary to provide context for our decision.

Fox was a dispatcher with the department for thirteen years. The duties

of the dispatchers are to answer the telephone and dispatch police and fire

departments to emergencies. Dispatchers also log every fifteen minutes what a

prisoner is doing if there is a prisoner in the holding cell. It is undisputed that

Fox left her post on July 26, 2017 prior to being relieved, leaving a prisoner and

the emergency phone desk unattended. Prior to leaving, the rules require

dispatchers to wait for their relief and then provide an update on any

developments that occurred during their twelve-hour shifts.

A-4092-17T3 2 On August 29, 2017, Fox was served a Preliminary Notice of Disciplinary

Action (PNDA) and was suspended with pay pending a Loudermill1 hearing for

incompetency, inefficiency or failure to perform duties, chronic or excessive

absenteeism or lateness, neglect of duty, and other sufficient causes in violation

of N.J.A.C. 4A:2-2.3.

A week later, Fox participated in a Loudermill hearing before the Keyport

Borough Council. The borough administrator issued a Final Notice of

Disciplinary Action (FNDA) on September 20, 2017, imposing the penalty of

removal and termination, effective immediately. Fox appealed her termination

and the matter was transferred to the Office of Administrative Law (OAL) as a

contested case.

The ALJ presided over a one-day hearing. She considered testimony from

seven witnesses, including Fox. In her written decision, the ALJ stated that Fox

testified:

She is familiar with the rules and regulations governing the department with respect to the job duties. . . . [Dispatchers] are required to fill in the log sheet with anything that happens. [Fox] was working . . . on July 26, 2017. Her shift ended at 6:30 a.m. and [officers] Dixon, Salvatore, McCartin, and Hassmiller were in the office. She stopped and said goodbye to them and left. She never asked who was relieving her, and did not seek

1 Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 546 (1985). A-4092-17T3 3 permission to leave her post before her replacement arrived. She knew that the usual relief, Gallagher[,] was on vacation, but she did not know who was supposed to relieve her and she did not ask. She testified that she just assumed they knew someone needed to relieve the dispatch.

. . . . [Fox] testified that [the officers in the office] should have known no one was at dispatch because she had said goodbye and Gallagher was off. She also said it was a onetime oversight.

In her written decision, the ALJ determined that the department satisfied

its burden of proof by a preponderance of the competent and credible evidence.

She characterized all of the witnesses' testimony as "honest and sincere," and

found "[t]he facts surrounding the charges are undisputed." Namely, Fox did

"not dispute that she left her post at dispatch prior to being relieved on July 26,

2017." The ALJ determined the "fact that she stopped and said good[]bye to

everyone, including her supervisor does not relieve[] her of the obligation of

waiting for relief before leaving her post." The ALJ concluded that Fox's

conduct was "in violation of the rules and regulations and engaged in

incompetency, inefficiency, neglect of duty and other sufficient cause."

The ALJ then determined that "the penalty of removal is appropriate given

the egregious nature of the offense of just leaving an important post without

securing relief, which could have resulted in life threatening consequence for

A-4092-17T3 4 the public trying to call in an emergency and the prisoner who was left without

supervision." In reaching this penalty, the ALJ cited several aggravating factors:

One factor is that [Fox] continued to try to justify leaving her post by claiming she said good[]bye first and that it was a "one time" oversight. [Fox's seven] prior offenses of neglect of duty and/or incompetency are further aggravat[ing] factors.

In considering the former charges against Fox for incompetency, inefficiency

and neglect of duty in her analysis, the ALJ reasoned that an employee's "past

record may be considered when determining the appropriate penalty for the

current offense." (quoting In re Phillips, 11 N.J. 567, 581 (1990)).

On April 6, 2018, the Commission adopted the ALJ's findings of fact and

conclusions of law.

On appeal, Fox contends the decision of the Commission to terminate her

was arbitrary, capricious, and not reasonably proportional to the offense. We

disagree.

Appellate review of an administrative agency decision is limited. In re

Herrmann, 192 N.J. 19, 27 (2007). A strong presumption of reasonableness

attaches to the Commission's decision. In re Carroll, 339 N.J. Super. 429, 437

(App. Div. 2001). Appellant has the burden to demonstrate grounds for reversal.

McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 563 (App. Div. 2002).

A-4092-17T3 5 Appellate courts generally defer to final agency actions, only "reversing

those actions if they are 'arbitrary, capricious or unreasonable or [if the action]

is not supported by substantial credible evidence in the record as a whole.'" N.J.

Soc'y for the Prevention of Cruelty to Animals v. N.J. Dep't of Agric., 196 N.J.

366, 384-85 (2008) (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579-

80 (1980) (alteration in original)). Under the arbitrary, capricious, and

unreasonable standard, our scope of review is guided by three major inqui ries:

(1) whether the agency's decision conforms with the relevant law; (2) whether

the decision is supported by substantial credible evidence in the record; and (3)

whether in applying the law to the facts, the administrative agency clearly erred

in reaching its conclusion. In re Stallworth, 208 N.J. 182, 194 (2011).

When an agency decision satisfies such criteria, we accord substantial

deference to the agency's fact-finding and legal conclusions, acknowledging the

agency's "expertise and superior knowledge of a particular field." Circus

Liquors, Inc. v. Governing Body of Middletown Twp., 199 N.J. 1, 10 (2009)

(quoting Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992)).

We will not substitute our judgment for the agency's even though we might have

reached a different conclusion. Stallworth, 208 N.J. at 194; see also In re Taylor,

158 N.J. 644, 656 (1999).

A-4092-17T3 6 Our deference to agency decisions "applies to the review of disciplinary

sanctions as well." Herrmann, 192 N.J. at 28. "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.'" Id. at 28-29

(quoting In re Polk, 90 N.J. 550, 578 (1982)).

Having considered Fox's arguments in light of the record on appeal and

our limited standard of review, we affirm the Commission's final determination

substantially for the reasons expressed by the ALJ. The Commission's final

determination is supported by sufficient credible evidence on the record as a

whole. R. 2:11-3(e)(1)(D). Fox's arguments are without sufficient merit to

warrant further discussion. R. 2:11-3(e)(1)(E).

Affirmed.

A-4092-17T3 7