IN THE MATTER OF RHONDA DENSON-JOHNSON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

IN THE MATTER OF

RHONDA DENSON-JOHNSON,

ATLANTIC COUNTY.

__________________________________

April 13, 2015

Submitted March 2, 2015 - Decided

Before Judges Sabatino and Guadagno.

On appeal from the New Jersey Civil Service Commission, CSC Docket No. 2103-37.

The Vigilante Law Firm, P.C., attorneys for appellant Rhonda Denson-Johnson (Jacqueline M. Vigilante and Sheba E. Vine, on the brief).

Atlantic County Department of Law, attorneys for respondent Atlantic County Department of Public Safety (Alan J. Cohen, Assistant County Counsel, of counsel and on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent New Jersey Civil Service Commission (Todd A. Wigder, Deputy Attorney General, on the statement in lieu of brief).

PER CURIAM

Rhonda Denson-Johnson, a corrections officer employed by respondent Atlantic County Department of Public Safety ("the County"), appeals a July 31, 2013 final agency decision of the Civil Service Commission ("Commission"). In that decision, the Commission upheld a six-day suspension that the County had imposed on appellant for her insubordination in refusing an overtime assignment. Applying our limited scope of review to the Commission's administrative determination, we affirm.

The violation of work rules that prompted the County to discipline appellant occurred when she refused to work an overtime shift on April 21, 2011. Appellant was served with the initial notice of discipline a week later on April 28, 2011. She was served with the final notice of discipline on January 25, 2013. Preserving her right to appeal, she served the six-day suspension in March 2013.1

Appellant is a member of a labor union, the Fraternal Order of Police Lodge #34 ("FOP"). The FOP had entered into Collective Negotiations Agreements ("CNAs") with the County. The CNA entered into for the period spanning January 1, 2003 through December 31, 2006 provided for disciplinary action against FOP members who refused mandatory overtime. That 2003-2006 CNA was followed by a successor CNA entered into in October 2011. The successor CNA appears to have similar overtime provisions as the former CNA, but gave FOP members such as appellant the option of refusing mandatory overtime two times per year, except for certain specified holidays not applicable here.

It appears to be undisputed that appellant refused to work overtime on April 21, 2011. This was appellant's fourth refusal during the pertinent time frame. As such, the infraction is considered a "major discipline" event under the CNA then in force and resulted in a six-day suspension.

The main disputed issue here stems from a Memorandum of Agreement ("MOA") dated March 19, 2012, entered into between the County and the FOP to settle then-pending grievances filed by several other employees regarding the County's mandatory overtime policy. Paragraph C of the MOA, which essentially is an "amnesty" or "erasure" provision, states that the County and the FOP agreed to

Remove all discipline for mandatory overtime infractions served after 10/13/2011 and provide employees with comp time for all suspension time served.

The County contends that the word "served" in the first clause of that sentence refers to service of a notice of violation. Under that interpretation, the service of appellant's initial violation notice in April 2011 occurred before the amnesty date of October 13, 2011. Conversely, appellant argues that the term "served" in the first clause refers to service of the discipline itself, which in her case occurred in March 2013 after the October 2011 cutoff date.

The contested case was referred to an Administrative Law Judge ("ALJ"). Because there were no facts in dispute, both parties moved for summary decision. The ALJ concluded that appellant's suspension was prescribed as a mandatory sanction under the terms of the 2003-2006 CNA. The ALJ did not discuss the terms of the MOA, finding that he lacked jurisdiction to do so.

Appellant sought review by the Commission, which upheld the discipline. The Commission disagreed with the ALJ that he lacked jurisdiction to consider the MOA. With respect to Paragraph C of the MOA, the Commission concluded that "a reasonable interpretation of the word 'served' in this context is that it refers to the service of the disciplinary notice, not the time when the suspension is actually implemented." Consequently, the Commission determined that appellant was not entitled to the benefit of the amnesty provision, and that "the prescribed discipline" for appellant's mandatory overtime infraction is "controlled by the 2003-2006 CNA." The Commission rejected appellant's claim that the newer CNA adopted in October 2011 applied to her rather than the 2003-2006 CNA. The Commission therefore found that the County's actions in imposing the six-day suspension was "justified."

Appellant argues that the Commission's decision, including its construction of the MOA, is arbitrary, capricious, unsupported by substantial credible evidence, and contrary to principles of contract law. She maintains that she was entitled to refuse the mandatory overtime assignment on April 21, 2011, and that she was unjustifiably disciplined.

Our scope of review of the Commission's final agency decision is limited. An administrative agency's decision generally will only be disturbed on appeal if there is a "clear showing that it is arbitrary, capricious, or unreasonable, or that it lacks fair support in the record." Russo v. Bd. of Trs., Police & Firemans Ret. Sys., 206 N.J. 14, 27 (2011) (quoting In re Hermann, 192 N.J. 19, 27-28 (2007)). If, however, an issue on appeal poses a question of law, the reviewing court is not bound by an agency's "determination of a strictly legal issue[.]" Ibid. (citing Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85, 93 (1973)).

We have applied these principles in reviewing final decisions of the Commission and its predecessor agencies entrusted with implementing the State's civil service laws and regulations. Gloucester Cnty. Welfare Bd. v. N.J. Civil Serv. Comm'n, 93 N.J. 384, 391-92 (1983); Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963); see also N.J.S.A. 11A:1-1 to :12-6. The agency is "an integral part of the executive branch of state government," Gloucester County, supra, 93 N.J. at 392, and is recognized for its expertise in resolving personnel matters involving public employees, which come before it on a regular basis. See, e.g., Hackensack v. Winner, 82 N.J. 1, 18-19, 35 (1980); Thurber v. City of Burlington, 387 N.J. Super. 279, 297 (App. Div. 2006), aff'd, 191 N.J. 487 (2007).

Bearing in mind the Commission's expertise, we are satisfied that it did not misapply its authority in upholding the six-day suspension in this case. As the County and the Commission rightly note, the availability of sufficient corrections employees to work overtime shifts implicates serious matters of public safety. Appellant clearly violated the overtime provisions of the CNA. There is no evidence, let alone substantial credible evidence, to the contrary. We also concur with the Commission in rejecting appellant's claim that the newer CNA applied rather than the 2003-2006 CNA which was still in force at the time of her April 2011 refusal.

Although we owe less deference to the Commission in its contractual interpretation of the MOA, we are satisfied that the Commission's reading of the term "served" within Paragraph C of that document was reasonable. We are cognizant that the certification the County had tendered to the ALJ from its lawyer who had negotiated the MOA attesting to the intended meaning of the contract term "served" was withdrawn during the proceedings before the ALJ, after appellant's counsel objected. However, the Commission did not rely on that withdrawn certification in its final agency decision. Instead, the Commission considered the MOA on its face and construed the agreement in a reasonable manner. Notably, appellant did not proffer contrary parol evidence to the Commission to support her own interpretation of the term, or request a remand to the ALJ to consider such proof.

We also reject appellant's claim that N.J.A.C. 4A:2-2.5 makes the January 25, 2013 final notice of discipline the operative notice document that was served upon her, thereby placing her in the MOA's post-October 2011 amnesty period even under the County's reading of the term "served." The regulation is inapposite. It does not address the circumstances before us, which involve the interpretation and application of collective agreements forged between a labor union and a public employer.

Moreover, the preliminary notice of discipline served upon appellant, as prescribed by N.J.A.C. 4A:2-2.5, duly notified her of the charge of insubordination, the supporting facts, the length of the suspension she would receive if found guilty of that infraction, and her right to a hearing to contest the charge. We discern nothing unjust or arbitrary in the Commission treating the preliminary notice served upon appellant on April 28, 2011 as the applicable date of "service" under the MOA.

We have considered all of the remaining points raised by appellant in her briefs and find them without sufficient merit to warrant discussion. R. 2:11-3(e)(1)(D) and (E).

Affirmed.

1 We presume that the matter nevertheless is not moot and that appellant would receive comp time or otherwise would be better off if the discipline were overturned.