IN THE MATTER OF JOHN SULLIVAN

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5798-04T25789-04T2

IN THE MATTER OF JOHN SULLIVAN

____________________________________________________________

 

Submitted June 21, 2006 - Decided July 19, 2006

Before Judges Wefing and Coburn.

On appeal from the Merit System Board,

Department of Personnel, DOP Docket

No. 2005-101; OAL Docket No. CSV 8079-04.

Hobbie, Corrigan, Bertucio & Tashjy, attorneys

for appellant John Sullivan (Norman M. Hobbie and Edward C. Bertucio, Jr., of counsel; Mr. Bertucio,

on the brief).

Zulima V. Farber, Attorney General, attorney

for respondent New Jersey Department of

Human Services (Patrick DeAlmeida, Assistant

Attorney General, of counsel; Kathleen Asher,

Deputy Attorney General, on the brief).

PER CURIAM

John Sullivan, a Human Services Police Officer at Greystone Park Psychiatric Hospital, appeals from a final disciplinary decision issued on June 9, 2005, by the Merit System Board (the "Board"). The charges were "violation of a rule [or] regulation," and "intentional abuse or misuse of authority or position." The discipline imposed was suspension for 120 calendar days and "further training covering the topic areas of sensitivity, anger management, and diversity."

After carefully considering the record and briefs, we are satisfied that the administrative agency's decision is supported by sufficient credible evidence on the record as a whole, and that all of Sullivan's arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(D) and (E). Nonetheless, we add the following comments.

The incident began around 3:00 p.m., when Rhonda Morris, who was working in the Abell building at Greystone, reported to the Police Center that a patient was missing. She described the patient as a black female, about five feet, five inches tall, 150 to 160 pounds, wearing a black dress with beige pants underneath, black shoes, and a lot of fake hair in her hair. Morris is also black but is over six feet tall and weighs about 230 pounds. Officer Sullivan appeared shortly, and quickly became engaged in controversy with Morris, suggesting among other things that she was the missing patient. Although Morris did not have the badge required by Greystone, other Greystone employees with badges identified her to Sullivan as an employee. Although Morris's conduct was not entirely proper, the point of this case is the way Sullivan responded. Based on the testimony of a number of witnesses, the Administrative Law Judge ("ALJ") found that Sullivan "ignored three staff people" who tried to intervene, and had "conducted himself in a way that was 'belittling,' used 'loud tones of voice,' was 'heated,' 'commanding,' and 'aggressive.'" Although Sullivan's statement of facts emphasizes what he considers the misbehavior of others, nowhere does he demonstrate that the above findings were not based on the record. Nor does he deny that he was obliged under the applicable regulations to "[b]e calm, civil, orderly, maintain decorum, control temper, be patient and use discretion." Since the ALJ's adjudication was based on substantial evidence, the Board was justified in also so finding. R. 2:11-3(e)(1)(D); Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980).

The appointing authority imposed a suspension of 120 working days on two charges. The ALJ, who recommended acquittal of Sullivan on one of the charges, recommended a 45-day suspension. The Board found Sullivan guilty on both charges, and imposed suspension for 120 calendar days. Sullivan argues that the Board did not give enough weight to the fact that he was acquitted on the charge of abuse of duty by the ALJ. But the Board disagreed with the ALJ on this point and found Sullivan guilty of both offenses. Furthermore, the Board provided a reasonable explanation for its penalty, which was less than that imposed by the appointing authority. We see no basis for interference since the Board properly applied the principle of progressive discipline, Karins v. City of Atlantic City, 152 N.J. 532, 562 (1997), and carefully considered the circumstances of this offense, including the fact that the confrontation with Morris substantially delayed recovery of the missing patient.

Sullivan also contends that he was entitled to counsel fees pursuant to N.J.A.C. 4A:2-2.12(a), but that only applies when the employee has substantially prevailed on his appeal, which obviously was not the case here.

Affirmed.

 

(continued)

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A-5789-04T2

July 19, 2006