IN THE MATTER OF MICKEY YOUNG, ETC. (NEW JERSEY CIVIL SERVICE COMMISSION)

• Court: New Jersey Superior Court Appellate Division
• Decided: March 10, 2022
• Docket: A-0400-20
• Status: Published

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0400-20

IN THE MATTER OF MICKEY YOUNG, WOODBINE APPROVED FOR PUBLICATION DEVELOPMENTAL CENTER, DEPARTMENT OF HUMAN March 10, 2022

SERVICES. APPELLATE DIVISION ___________________________

Argued November 15, 2021 – Decided March 10, 2022

Before Judges Messano, Accurso and Rose.

On appeal from the New Jersey Civil Service Commission, Docket No. 2020-1186.

Arnold Shep Cohen argued the cause for appellant Mickey Young (Oxfeld Cohen, PC, attorneys; Arnold Shep Cohen, of counsel and on the briefs).

Francis X. Baker, Deputy Attorney General, argued the cause for respondent Woodbine Developmental Center, Department of Human Services (Andrew J. Bruck, Acting Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Francis X. Baker, on the brief).

Andrew J. Bruck, Acting Attorney General, attorney for respondent New Jersey Civil Service Commission (Eric A. Reid, Deputy Attorney General, on the statement in lieu of brief).

The opinion of the court was delivered by

ROSE, J.A.D. Mickey Young appeals from a final administrative action of the Civil

Service Commission, finding it lacked subject matter jurisdiction over Young's

administrative appeal from a reduced suspension imposed by the Department

of Human Services. The sole issue raised on appeal is whether an appointing

authority may unilaterally reduce a sanction from major to minor discipline

after the employee is served with a Final Notice of Disciplinary Action

(FNDA), thereby divesting the Commission of jurisdiction. Because we

conclude the Department's action was consonant with the governing statutory

and regulatory schemes, we affirm the Commission's decision dismissing

Young's administrative appeal.

I.

The facts are straightforward and, for purposes of this appeal, are largely

undisputed. Young is employed as a painter at the Woodbine Developmental

Center, a facility operated by the Department for men with developmental

disabilities. Young also is a member of the International Federation of

Professional & Technical Engineers, Local 195 (Union).

Within a two-month period in 2016, Young was issued two Preliminary

Notices of Disciplinary Action (PNDA) for separate acts of misconduct.

Following a consolidated disciplinary hearing, the Department issued

corresponding FNDAs, upholding the charges and sanctions. Because the

A-0400-20 2 penalties for each action exceeded five days, they were deemed major

disciplinary matters, entitling Young to appeal the decisions to the

Commission pursuant to N.J.S.A. 11A:2-14. The Commission transmitted

Young's timely appeal to the Office of Administrative Law (OAL) as contested

cases. An Administrative Law Judge (ALJ) conducted a hearing and

recommended reversal of the charges and sanctions. In its final November 26,

2018 decision, the Commission upheld the ALJ's initial decision.

Four days later, on November 30, 2018, Young sent a disparaging email

to Steven Katz, the legal specialist who represented the Department at the

hearing before the ALJ. Referencing Young's favorable outcome on the

charges, the email repeatedly stated Katz was a "loser." The email triggered

the charges at issue.

Accordingly, on December 10, 2018, the Department served Young with

a PNDA, proposing a fifteen-day suspension for the following offenses:

conduct unbecoming a public employee, N.J.A.C. 4A:2-2.3(a)(6); other

sufficient cause, N.J.A.C. 4A:2-2.3(a)(12); and verbal abuse of a patient,

client, resident, or employee, Administrative Order 4:08-C-4.1. Following a

departmental hearing in September 2019, the hearing officer upheld the

charges and sanction, and an FNDA was issued on October 17, 2019. Young's

A-0400-20 3 ensuing appeal to the Commission was transmitted to the OAL as a contested

case.

Exercising "managerial discretion," the Department reconsidered

Young's penalty and – three months prior to the September 2020 hearing date –

reduced his suspension to five days. The charges remained unchanged.

Because the penalty no longer exceeded a five-day suspension, the Department

claimed the matter was rendered a minor disciplinary action under the

governing statutes and regulations, divesting the Commission of jurisdiction

and eliminating Young's right to a hearing before the OAL. The Department

noted Young's right to appeal minor disciplinary actions instead was governed

by the collective negotiations agreement (CNA) between the State and the

Union, which provides, in relevant part:

1. There is hereby established a Joint Union/Management Panel [(JUMP)] consisting of two (2) individuals selected by the State and two (2) individuals selected by the Union and a third party neutral mutually selected by the parties. The purpose of this panel is to review appeals from Departmental determinations upholding disciplinary suspensions of one (1) through five (5) days.

....

5. The panel considerations shall be based upon the Department or Agency Head or designee's decision and any documents that have been made a part of the record of the matter before such Department or Agency Head or designee. The State and Union panel A-0400-20 4 members shall discuss each matter on the agenda and with the assistance of the neutral panel member, attempt to jointly resolve the appeal. Where the State and Union panel members agree, the appeal shall be dismissed or upheld, or the involved penalty may be reduced. Where the State and Union panel members do not agree as to the disposition of the appeal, the neutral panel member will determine whether the matter raises issues which may warrant submission to arbitration. In the event the neutral [panel member] determines that the matter does not raise issues which may warrant submission to arbitration, such determination shall be final and the matter closed.

In June 2020, the Department moved for summary decision, seeking to

dismiss Young's appeal for lack of jurisdiction. Young objected, arguing the

Department's "power grab" improperly divested the Commission and, as such,

the OAL of jurisdiction, therefore depriving Young a hearing on the merits.

Following full briefing, another ALJ issued a cogent initial decision.

Finding no issues of fact precluded a decision as a matter of law, the ALJ

surveyed the controlling case law and relevant provisions of the Civil Service

Act, N.J.S.A. 11A:1-1 to -12-6, and its regulations. Reasoning the

Department's "inherent right" to reduce Young's penalty to five days

constituted minor discipline pursuant to N.J.A.C. 4A:2-3.1(a), and the CNA

established an appeal process for minor discipline under N.J.A.C. 4A:2 -3.2(a),

the ALJ concluded Young had no right of appeal to the Commission.

Accordingly, the ALJ granted the Department's motion.

A-0400-20 5 The Commission thereafter considered Young's exceptions and the

Department's reply and conducted an independent review of the record. In its

September 10, 2020 final decision, the Commission accepted the ALJ's initial

decision, dismissing Young's appeal for lack of jurisdiction. This appeal

followed.

On appeal, Young argues the Department's reduction in penalty was

prohibited under the Act and violated his right to due process. He contends the

Act and accompanying regulations make clear that upon issuing an FNDA,

"the appointing authority becomes a litigant" and "cannot unilaterally modify a

penalty." Young further asserts the appeal procedure for minor disciplinary

actions set forth in the CNA does not guarantee a hearing, and even if a

hearing were granted, the arbitrator determines guilt or innocence, not a

change in penalty. As such, Young claims he is left with no recourse to

remove the charges from his personnel file.

II.

Our limited review of an agency decision is well settled. See Russo v.

Bd. of Trs., Police & Firemen's Retirement Sys., 206 N.J. 14, 27 (2011).

Ordinarily, we defer to the Commissioner's determination unless it was

"arbitrary, capricious, or unreasonable." Melnyk v. Bd. of Educ. of the Delsea

Reg'l High Sch. Dist., 241 N.J. 31, 40 (2020). Thus, "an appellate court

A-0400-20 6 ordinarily should not disturb an administrative agency's determinations or

findings unless there is a clear showing that (1) the agency did not follow the

law; (2) the decision was arbitrary, capricious, or unreasonable; or (3) the

decision was not supported by substantial evidence." In re Virtua-West Jersey

Hosp. Voorhees for a Certificate of Need, 194 N.J. 413, 422 (2008); see also

In re Stallworth, 208 N.J. 182, 194 (2011). "When an agency's decision meets

those criteria, then a court owes substantial deference to the agency's expertise

and superior knowledge of a particular field." In re Herrmann, 192 N.J. 19, 28

(2007). The party challenging the administrative action bears the burden of

demonstrating the agency has not made that showing. Lavezzi v. State, 219

N.J. 163, 171 (2014).

"A party may move for summary decision upon all or any of the

substantive issues in a contested case." N.J.A.C. 1:1-12.5(a). The standard for

summary decision motions pursuant to N.J.A.C. 1:1-12.5 is "substantially the

same as that governing a motion under Rule 4:46-2 for summary judgment in

civil litigation." L.A. v. Bd. of Educ. of Trenton, 221 N.J. 192, 203 (2015)

(internal quotation marks omitted). The motion may be granted if the record

"show[s] that there is no genuine issue as to any material fact challenged and

that the moving party is entitled to prevail as a matter of law." N.J.A.C. 1:1 -

12.5(b); see also R. 4:46-2(c); Brill v. Guardian Life Ins. Co. of America, 142

A-0400-20 7 N.J. 520, 528-29 (1995). "Because an agency's determination on summary

decision is a legal determination, our review is de novo." L.A., 221 N.J. at

204.

A reviewing court is "in no way bound by [an] agency's interpretation of

a statute or its determination of a strictly legal issue." Allstars Auto. Grp., Inc.

v. N.J. Motor Vehicle Comm'n, 234 N.J. 150, 158 (2018) (alteration in

original) (internal quotation marks omitted). Nonetheless, "[w]e will overturn

an agency's interpretation of a statute it implements only when it is 'plainly

unreasonable.'" In re Comm'r's Failure to Adopt 861 CPT Codes, 358 N.J.

Super. 135, 149 (App. Div. 2003) (quoting Merin v. Maglaki, 126 N.J. 430,

437 (1992)). We thus afford "substantial deference to the interpretation of the

agency charged with enforcing an act." Ibid.

Along those same lines, "appellate review of an agency's choice of

sanction is limited." In re License Issued to Zahl, 186 N.J. 341, 353 (2006).

Courts "will modify a sanction 'only when necessary to bring the agency's

action into conformity with its delegated authority,'" such as, when "'the

agency has mistakenly exercised its discretion or misperceived its own

statutory authority.'" Id. at 353-54 (quoting In re Polk License Revocation, 90

N.J. 550, 578 (1982)).

A-0400-20 8 Guided by these principles, we turn to the relevant sections of the Act

and its accompanying regulations pertaining to the discipline of public

employees. A review of these sections makes clear the Legislature's intent to

differentiate between the appeal rights for those employees subject to

suspensions greater than five days from those suspended for a shorter period.

See N.J.S.A. 11A:2-14.1 The regulation promulgated by the Commission is in

accord. See N.J.A.C. 4A:2-2.9(b).

The Legislature expressly defined the appeal process by reference to the

length of suspension, i.e., "five days or less." N.J.S.A. 11A:2-16.2 The

accompanying regulation tracks the same timeframe including, within the

definition of minor discipline, a suspension of "five working days or less."

N.J.A.C. 4A:2-3.1(a). By comparison, employees suspended for more than

five days, enjoy a right of appeal of the appointing authority's decision to the

Commission pursuant to N.J.S.A. 11A:2-14, which may hear the appeal or

refer the matter to the OAL under N.J.A.C. 4A:2-2.9(b).

1 An employee served with a suspension of five days or less may also appeal to the Commission if the "employee's aggregate number of days suspended or fined in any one calendar year is [fifteen] days or more." N.J.S.A. 11A:2-14. 2 Pursuant to the definition set forth in N.J.A.C. 4A:2-2.2(c), the Commission's use of the term "'days,' shall mean working days, unless otherwise stated."

A-0400-20 9 N.J.S.A. 11A:2-16 permits a Civil Service employee to appeal a

suspension of five days or less "pursuant to an alternate appeal procedure

where provided by a negotiated contract provision." The corresponding

regulation provides, in relevant part: "Minor discipline may be appealed to the

Commission under a negotiated labor agreement." N.J.A.C. 4A:2-3.7(a).

Where, as here, the "procedures are established by a negotiated agreement,

such agreement shall be the applicable appeal process." N.J.A.C. 4A:2-3.2(a).

Notwithstanding the relevant provisions of the Act and its regulations,

Young argues that on issuing an FNDA, "the appointing authority becomes a

litigant," and the penalty set forth in the FNDA can be changed only by the

agreement of the parties or the Commission's final decision. To support his

position, Young cites N.J.S.A. 11A:2-14 and N.J.A.C. 4A:2-2.6(d). Both

provisions require the appointing authority to furnish the employee with an

FNDA "within [twenty] days of the [appointing authority's disciplinary]

hearing," but neither prohibits the appointing authority from reducing a penalty

after the FNDA is issued. Thus, Young's interpretation of the statute and

regulation finds no support in their plain meaning.

A statute's plain language "is the 'best indicator' of legislative intent."

State v. Rodriguez, 238 N.J. 105, 113 (2019) (quoting DiProspero v. Penn, 183

N.J. 477, 492 (2005)). Courts construe a statute's plain language "in context

A-0400-20 10 with related provisions so as to give sense to the legislation as a whole."

DiProspero, 183 N.J. at 492; see also N. Jersey Media Grp., Inc. v. Twp. of

Lyndhurst, 229 N.J. 541, 570 (2017). "If the plain language leads to a clear

and unambiguous result, then our interpretative process is over." Richardson

v. Bd. of Trs., Police & Firemen's Retirement Sys., 192 N.J. 189, 195 (2007).

It is not the court's function to "presume that the Legislature intended

something other than that expressed by way of the plain language." O'Connell

v. State, 171 N.J. 484, 488 (2002).

Courts interpret regulations in the same manner as statutes. In re

Eastwick Coll. LPN-to-RN Bridge Program, 225 N.J. 533, 542 (2016). "In our

interpretation of regulations, we give effect to their plain language." In re

M.M., 463 N.J. Super. 128, 138 (App. Div. 2020).

The "paramount goal" is ascertaining the regulator's intent, which is

generally found in the regulation's "actual language." U.S. Bank, N.A. v.

Hough, 210 N.J. 187, 199 (2012). The words of a regulation should be given

"their ordinary and commonsense meaning." In re Election Law Enf't Comm'n

Advisory Op. No. 01-2008, 201 N.J. 254, 263 (2010) (internal quotation marks

omitted). Courts should presume the drafter "intended the words it chose and

the plain and ordinary meaning ascribed to those words." Paff v. Galloway

Twp., 229 N.J. 340, 353 (2017).

A-0400-20 11 In the present matter, the governing statute and regulation are clear. The

appointing authority must issue its FNDA within the time constraints set forth

in N.J.S.A. 11A:2-14 and N.J.A.C. 4A:2-2.6(d). No language in these sections

of the Act or the Administrative Code prohibits an appointing authority from

reducing a penalty after the FNDA is issued. Rather, they establish the

procedure by which an appointing authority must issue an FNDA. Because the

terms of the statute and regulation are clear, we decline to construe them to

mean anything beyond their plain terms. See O'Connell, 171 N.J. at 488.

Not surprisingly, Young has not cited any case law – and our

independent research has not revealed any – that supports his interpretation.

Instead, Young's citation to the Court's decision in In re Hendrickson, 235 N.J.

145 (2018), is misplaced. At issue in Hendrickson was "the appropriate level

of deference to be afforded to an ALJ's disciplinary decision that becomes a

final agency determination through the deemed-adopted provision of N.J.S.A.

52:14B-10(c)," which outlines the procedures for contested cases before the

OAL. Id. at 157. While the Court recognized the Commission's authority to

"'adopt, reject or modify' the ALJ's findings and render a final decision" under

N.J.S.A. 52:14B-10(c), the Court did not hold that only the Commission may

modify the penalty sought by the appointing authority. Id. at 153.

A-0400-20 12 As the Department noted in its responding brief, N.J.A.C. 4A:2-2.9(c)

also empowers the Commission to "reverse or modify the action of the

appointing authority." Importantly, however, neither N.J.S.A. 52:14B-10(c)

nor N.J.A.C. 4A:2-2.9(c) proscribes the appointing authority's inherent

discretion to reduce a penalty after an FNDA has been issued to a Civil Service

employee.

Accordingly, we reject Young's contention that the Department

unlawfully reduced his penalty after the FNDA was issued. Nothing in the

record indicates Young challenged the applicability of the Act, the

Administrative Code, or the validity of the CNA, all of which are dispositive

of the Commission's jurisdiction.

We also find unavailing Young's argument that the Department's action

violated his right to due process. To support his claim, Young cites our

decision in Hammond v. Monmouth County Sheriff's Department, 317 N.J.

Super. 199 (App. Div. 1999). Unlike the present matter, however, the issue on

appeal in Hammond concerned the appointing authority's prosecution of

charges it had dismissed after the departmental disciplinary hearing. Id. at

204-05. Simply stated, we concluded an appointing authority may not add

charges to the FNDA, reasoning to hold otherwise would "surcharge the right

A-0400-20 13 to appeal with a cost which violates any decent sense of due process or fair

play." Id. at 206.

Conversely, in the present matter, following issuance of the FNDA, the

Department reduced Young's penalty. The Department did not add new

charges or otherwise amend the existing offenses and, as such, the appointing

authority did not run afoul of our decision in Hammond, or otherwise infringe

on Young's due process rights. Pursuant to the CNA, Young was free to file

an appeal with JUMP. Although Young takes issue with the JUMP process, it

is undisputed he received proper notice of the charges against him and was

afforded the opportunity to defend against the charges at a full and fair

departmental hearing. "As long as principles of basic fairness are observed

and adequate procedural protections afforded, the requirements of

administrative due process have been met." Kelly v. Sterr, 62 N.J. 105, 107

(1973); see also In re Kallen, 92 N.J. 14, 25 (1983).

We therefore conclude Young received adequate notice and an

opportunity to be heard to satisfy administrative due process. Indeed, Young

does not appear to have suffered any meaningful disadvantage by the reduction

in penalty; he no longer faces major discipline, and he retains the right to

challenge the charges and his five-day suspension in accordance with the

CNA.

A-0400-20 14 Moreover, Young's assertion that the appeal process set forth in the CNA

denies him the opportunity to remove the charges from his personnel file

because JUMP can only reduce the penalty is incorrect. The CNA expressly

provides JUMP may affirm or dismiss an appeal of a minor disciplinary

sanction as well as reduce a penalty. Young's misgivings about the adequacy

of the appeal process set forth in the CNA should be directed to the Union and

the State, which negotiated the agreement and are not parties to this appeal.

Thus, the issue is not properly before us. In any event, the record is devoid of

any evidence that JUMP will not consider Young's appeal pursuant to the

procedures set forth in the CNA.

We conclude the Department permissibly exercised its inherent

discretion in reducing Young's penalty to a five-day suspension, thereby

divesting the Commission of jurisdiction under the Act and its accompanying

regulations, and eliminating the right to a hearing before the OAL on the

resulting minor disciplinary action. See Peper v. Princeton Univ. Bd. of Trs.,

77 N.J. 55, 65 (1978) (reiterating the well-established principle "that a court

cannot hear a case as to which it lacks subject matter jurisdiction even t hough

all parties thereto desire an adjudication on the merits"); see also Murray v.

Comcast Corp., 457 N.J. Super. 464, 470 (App. Div. 2019). Having conducted

a de novo review of the record and governing legal principles, L.A., 221 N.J.

A-0400-20 15 at 204, we are satisfied the Commission properly upheld the ALJ's initial

decision, dismissing Young's complaint on summary decision for lack of

subject matter jurisdiction.

Affirmed.

A-0400-20 16