IN THE MATTER OF KEITH A. PENN

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1214-05T21214-05T2

IN THE MATTER OF

KEITH A. PENN,

COUNTY OF BURLINGTON

_____________________

 

Argued September 18, 2006 - Decided September 28, 2006

Before Judges Lintner and S.L. Reisner.

On appeal from a Final Administrative Action of the Merit System Board, Department of Personnel, Docket No. 2004-4145.

Jeffrey D. Catrambone argued the cause for appellant Keith A. Penn (Sciarra and Catrambone, attorneys: Charles J. Sciarra, of counsel and on the brief; Cynthia B. Molkenthin, on the brief).

Dina Rocco, Assistant Solicitor, argued the cause for respondent County of Burlington (Evan H.C. Crook, County Solicitor, attorney; Ms. Rocco, on the brief).

Anne Milgram, Acting Attorney General, attorney for respondent Merit System Board (Todd A. Wigder, Deputy Attorney General, on the statement in lieu of brief).

PER CURIAM

Keith A. Penn, a Burlington County corrections officer, appeals from a final determination of the Merit System Board upholding the imposition of two disciplinary suspensions. We affirm.

I

This is what happened. Penn, who works at the Burlington County Jail, was suspended for six days for admittedly violating a written policy requiring that all cabinets in the jail kitchen be locked. On February 8, 2004, while supervising the kitchen, Penn failed to put a padlock back on a cabinet before leaving his post. After another employee reported that the padlock was missing, Penn wrote an incident report, dated February 9, 2004, in which he admitted that the lock was on the cabinet when he began his shift and that

[d]uring the course of the day I unlocked the cabinet and . . . placed the lock in the top drawer. . . . I do not recall putting the lock back on the cabinet. Since that's my recollection of the whereabouts of the missing lock, I . . . take full responsibility for the missing lock.

The second offense occurred on March 6, 2004, when he called in sick and his supervisor was unable to reach him at home. The jail's policy manual requires that employees who are absent from duty must remain at home during normal work hours to be available for telephone communication from work. His superior officer called Penn's home at 8:38 a.m. and 2 p.m. and got no answer. Penn called in to work at 2:50 p.m., before the end of his shift, but he was nonetheless suspended for ten days because he had not answered either of the supervisor's telephone calls.

After an evidentiary hearing at which several jail supervisors testified and Penn did not testify, the Administrative Law Judge recommended that the six day suspension be upheld. The ALJ recommended that the ten day suspension be vacated, because he concluded that the supervisor should have left a message when he called Penn's home and got no answer.

The Board received the ALJ's decision on August 10, 2005. Less than forty-five days later, at its meeting on September 21, 2005, the Board voted to adopt the ALJ's decision with respect to the six day suspension for the kitchen cabinet incident. It rejected the recommendation to reverse the ten day suspension, voting instead to modify the penalty to a five day suspension. The Board did not memorialize its decision in a written opinion until October 7, 2005. On October 14, 2005, the Board, citing "administrative oversight," requested an extension of time nunc pro tunc to issue its final decision. The Office of Administrative Law granted the request on October 19, 2005.

II

On this appeal, Penn first argues that the Board failed to issue its decision within forty-five days resulting in automatic adoption of the initial decision pursuant to N.J.S.A. 52:14B-10(c). We disagree. The Board voted on a decision within the forty-five days, but did not memorialize its decision in a written opinion until three weeks after the deadline expired. Recognizing its oversight, the Board did obtain an extension of time to issue the decision. As in King v. N.J. Racing Comm'n, 103 N.J. 412 (1986), "there is no indication of bad faith, inexcusable negligence, or gross indifference" on the Board's part. Id. at 421. The agency voted on its determination within the forty-five days and issued a decision with findings of fact and conclusions of law shortly thereafter, albeit outside the statutory time limit. In these circumstances, there is no basis to deprive the Board of its prerogative of making the final determination on the merits. See Chapel v. Bd. of Trustees of PERS, 258 N.J. Super. 389, 397 (App. Div. 1992).

Turning to the Board's decision on the merits of the two suspensions, we are bound to defer to the agency's determination so long as it is supported by substantial credible evidence. In re Taylor, 158 N.J. 644, 656 (1999); In re Musick, 143 N.J. 206, 216 (1996).

Applying that standard we find no merit in Penn's challenge to his suspension for the incident with the lock. He admitted that he did not place the lock back on the cabinet and took responsibility for this failure.

We likewise find no merit in his objections to the suspension for failing to remain available for telephone contact while at home on a sick day. The County Jail's policy by its terms is designed to "ensure that sick leave privilege[s] are not misemployed." To that end it requires that:

Employees who are absent from duty . . . shall remain at their residence during the hours of their normal work shift on the date(s) of their absence and shall be available for telephone communication with their appointing authority.

The policy is also designed to foil efforts by employees to achieve contact with the workplace from locations other than their homes. Accordingly, the policy provides that "telephone contact achieved through cellular or calls forwarding shall be treated as 'no contact,'" as are situations where an employee's telephone line is persistently busy. Under the policy, "[a]ll employees shall be subject to receiving at least two telephone contact call[s] during their shift."

We agree with the Board's conclusion that the policy does not require a supervisor to make more than two calls to an employee's home, nor does it require a supervisor to leave a message on an employee's answering machine or voicemail. Receiving a callback from an employee in response to a voicemail or answering machine message would not guarantee that the employee was home at the time, because those kinds of messages can be accessed from remote locations. Like cellular phone or call forwarding contacts, those types of messages could be used to circumvent the county's policy that the employee must remain home on sick days.

Finally we note, as did the Board, that Penn did not testify at his hearing and hence did not explain why he was unavailable to receive the two calls that were made to his house. Hence, there is no basis in this record to conclude that he was in fact home at the time the calls came in, or that due to some idiosyncratic fact pattern the County's policy produced an unjust result.

Affirmed.

 

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A-1214-05T2

 

September 28, 2006