IN THE MATTER OF DONALD MICHELSON, DEPARTMENT OF PUBLIC SAFETY, CITY OF UNION

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3523-07T33523-07T3

IN THE MATTER OF DONALD MICHELSON, DEPARTMENT OF PUBLIC SAFETY, CITY OF UNION

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Submitted: June 3, 2009 - Decided:

Before Judges Cuff and C.L. Miniman.

On appeal from the Department of Personnel, Merit System Board, Docket No. 2006-3707.

Loccke, Correia, Schlager, Limsky & Bukosky, attorneys for appellant Donald Michelson (Marcia J. Tapia, on the brief).

O'Toole Fernandez Weiner Van Lieu, attorneys for respondent City of Union (Juan C. Fernandez, on the brief).

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

PER CURIAM

Appellant Donald Michelson seeks our review of the Final Administrative Action of respondent Merit System Board (MSB) accepting and adopting the Initial Decision of the Office of Administrative Law (OAL). The Administrative Law Judge (ALJ) found that respondent City of Union (Union) had proven its charges of neglect of duty, other sufficient cause, and absence without leave against Michelson and concluded that the penalty of suspension without pay for six work days was reasonable and consistent with progressive discipline. We affirm.

On October 14, 2005, Michelson, a sergeant in the Union Police Department, was assigned to work in the communication center from 2330 hours to 0730 hours but did not report for duty. The Police Department schedule cycle requires officers to report for duty four days on and three days off per week for three weeks, then report for duty four days on and two days off for one week (called "the short week"). Before 0400 hours, Sergeant Botti, the Desk Officer Supervisor, called Michelson to inquire about his absence. Apparently, Michelson mistakenly believed he was on the short week and not scheduled to work that day; he reported for duty at 0400 hours.

The Police Department charged Michelson with neglect of duty, absence without leave, and other sufficient cause. Due to his absence, which was undisputed, the ALJ found,

Consequently the communication center was without supervision for approximately four and one-half hours. The desk officer, Sgt. Botti[,] put aside his regular duties to conduct an inquiry into Michelson's "unauthorized absence[."] The police department operates as a paramilitary organization and prompt attendance is critical to the efficient operation of the department.

The ALJ found that the six-day suspension comported with the concept of progressive discipline, which "was not intended to be a straitjacket to prevent an appointing authority from taking appropriate disciplinary action." The ALJ, reasoning that Michelson had no intention to report for duty until Botti called him, rejected Michelson's contention that he was merely tardy, not absent without leave.

The ALJ, noting that superior officers such as Michelson must set an example for subordinate officers, also rejected Michelson's claim that he was subjected to disparate treatment because no other officer had been suspended for arriving late. Additionally, the ALJ concluded that the record was insufficient to support a claim of disparate treatment as it did not contain the prior disciplinary records of the other employees, a factor bearing on the discipline to be imposed. Thus, no reasoned comparison could be made. As a consequence, the ALJ affirmed Union's determination that Michelson be suspended for six days.

On review by the MSB, it accepted and adopted the ALJ's findings of fact and conclusions of law and found "that the action of the appointing authority in suspending [Michelson] was justified." Accordingly, it affirmed that action and dismissed Michelson's appeal. This appeal followed.

The scope of our review of a final agency decision is limited. Carter v. Twp. of Bordentown, 191 N.J. 474, 482 (2007) (citation omitted). "[W]e do not ordinarily overturn such a decision 'in the absence of a showing that it was arbitrary, capricious or unreasonable, or that it lacked fair support in the evidence.'" Ibid. (quoting Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963)). Our role generally is limited to deciding:

"(1) whether the agency's action violates express or implied legislative policies, that is, did the agency follow the law; (2) whether the record contains substantial evidence to support the findings on which the agency based its action; and (3) whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors."

[Id. at 482-83 (quoting Mazza v. Bd. of Trs., Police & Fireman's Ret. Sys., 143 N.J. 22, 25 (1995)).]

Michelson contends that the MSB erred in concluding that he was absent without leave and urges that the agency erred in failing to consider disparate treatment in this case. After carefully reviewing the record in the light of the written arguments advanced by the parties, we conclude that the issues presented by Michelson are without sufficient merit to warrant discussion in this opinion, Rule 2:11-3(e)(1)(D), (E), and we affirm substantially for the reasons expressed by the MSB. The findings and conclusions of the agency are supported by substantial, credible evidence in the record. Ibid.; Carter, supra, 191 N.J. at 482.

Affirmed.

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A-3523-07T3

July 28, 2009