IN THE MATTER OF PHILLIP BOONE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6604-06T36604-06T3

IN THE MATTER OF

PHILLIP BOONE

__________________________________

 

Argued January 22, 2009 - Decided:

 

Before Judges Payne and Waugh.

On appeal from the Merit System Board, Department of Personnel, DOP Docket No. 2006-3209.

Philip B. Whitcomb argued the cause for appellant Phillip Boone (Kamensky Cohen & Associates, attorneys; Mr. Whitcomb, on the briefs).

Betty M. Ng, Deputy Attorney General, argued the cause for respondent Department of Human Services (Anne Milgram, Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Ms. Ng, on the brief).

PER CURIAM

Phillip Boone appeals the decision of the Merit System Board (Board) affirming the termination of his employment. Boone argues that the Board's decision was arbitrary and capricious because it was not supported by the evidence in the record. He also argues that the Board failed to apply properly the principles of progressive discipline. We dismiss the appeal as it relates to Boone's challenge to the factual basis for the Board's decision because Boone has not provided a transcript of the fact finding hearing. We affirm as to the issue of progressive discipline.

I

The facts of the case were disputed. We set forth the facts as found in the May 10, 2007, decision of the administrative law judge (ALJ). We will note the general areas of Boone's disagreement where relevant to our decision.

Boone was employed as a senior medical security officer at the Anne Klein Forensic Center (AKFC). AKFC is a long-term care facility providing treatment to patients with varying mental disabilities. Ward 6 of AKFC houses approximately twenty-five patients, some of whom have previously been convicted of a crime and were deemed unfit for release upon the completion of their prison term.

On March 7, 2005, at a approximately 6:00 p.m., Boone entered Ward 6, to which he was not assigned at the time. Boone contends that O.D., a patient in Ward 6, "physically and verbally assaulted" him, requiring Boone to employ an authorized physical restrain technique (PRT) to subdue O.D. The ALJ, having found that Boone was not credible, rejected Boone's factual assertions.

The ALJ found that as the patients were lining up to leave the ward to go to a rehabilitation session, Boone yelled at O.D. to "mind your own business." O.D. stuck his finger close to Boone's face, but did not make contact with it. Boone punched O.D. in the face two to three times before O.D. fell to the floor. The two wrestled on the floor and Boone continued to punch O.D. Boone and O.D. were separated by another AKFC security officer. After the altercation, blood was observed coming from O.D.'s mouth onto his lips. No blood was observed on Boone's face. Later that evening, O.D. was taken to the hospital to rule out any possible jaw problems. O.D. was diagnosed with facial trauma, facial contusion, and dental trauma illustrated by multiple loose teeth.

O.D. filed criminal assault charges against Boone in the Trenton Municipal Court on April 12, 2005. The Department of Human Services (DHS), which operates AKFC and was Boone's employer, requested that Boone, if convicted, be barred from future public employment. On September 29, 2005, Boone was found not guilty of assault.

The Department of Personnel (DOP) issued a preliminary notice of discipline to Boone on October 11, 2005. Boone appealed the notice and a departmental hearing was held on January 30, 2006. On February 16, 2006, the DOP, having determined that Boone physically abused a patient in violation of DHS Admin Order No. 4:08, supp.1, C-3 (1981), issued a final notice of discipline removing Boone from his employment.

Boone appealed his termination to the Board and the case was transferred to the Office of Administrative Law as a contested case. The ALJ held hearings on August 15, August 29, September 7, 2006, and February 8, 2007. In addition, the ALJ visited the AKFC to view the location of the altercation and the vantage point of one of the witnesses.

At the hearings, Boone testified on his own behalf. O.D. and five other patients from AKFC testified at the hearings for the DOP. While some of the details of the patients' testimony were not identical, they all generally related that Boone escalated the verbal altercation with O.D. by punching O.D. in the face and continuing to punch him once he was on the floor. The main discrepancy in the patients' testimony was the number of times that Boone punched O.D. in the face.

Four employees of the AKFC also testified on behalf of the DOP. Nurse Gyan Sekhon was working in Ward 6 when the altercation between Boone and O.D. occurred. Sekhon observed Boone come into the ward and start yelling. Sekhon then heard Boone and O.D. screaming at each other so she locked herself in the medication room. She testified that she saw Boone on top of O.D. and Boone punching O.D.

Medical Security Officer Prince Smith testified that he was working in Ward 6 on the evening of March 7, 2008. He did not have a clear view of what took place between Boone and O.D. He knew that they were talking to each other and then he saw them on the floor scuffling with each other. He testified that Boone was on top of O.D. and that there was blood coming from O.D.'s mouth onto his lips. Smith did not observe any blood on Boone.

Hector Figueroa was a senior medical security officer employed at AKFC. He was called to the ward immediately after the incident. Figueroa spoke with Boone first, who told him O.D. had hit him. He then spoke with a visibly upset O.D., who had blood in his mouth. O.D. told Figueroa that Boone had hit him and that he had done nothing wrong.

Thomas Pacia, the Deputy Clinical Administrator for Medical Security at AKFC, testified that he observed O.D. on the morning of March 8, 2005. He noted fresh blood on O.D.'s face and mouth and that several of O.D.'s teeth were missing or loose. O.D. told Pacia that Boone had punched him in the face. Pacia testified that it was the policy to use PRTs to subdue violent patients and that he had used "numerous" PRTs in the past.

The ALJ issued her initial decision on May 10, 2007. She found that Boone had physically abused O.D. and that his removal was justified. The Board adopted the ALJ's findings of fact and affirmed the termination of Boone's employment. This appeal followed.

II

Boone raises the following issues on appeal:

Point I

The appellant's removal must be reversed by this court as the decision of the Merit System Board was arbitrary, capricious, unreasonable, and lacked sufficient factual support in the record.

Point II

The Merit System Board erroneously applied principles of progressive discipline to this case.

A

We decline to consider the first issue on the merits. The arguments presented to support Boone's position that the evidence adduced at the hearing did not support the ALJ's factual determinations would necessarily require us to review the testimony at the hearing. We are precluded from doing so, however, because Boone did not submit the transcripts of the OAL hearing. Boone contends that the transcripts are not necessary because they were not before the Board when it reached its determination and, therefore, were not a necessary part of the record on appeal. We disagree.

The necessity of transcripts in administrative appeals was squarely addressed in In re Morrison, 216 N.J. Super. 143 (App. Div. 1987). In Morrison, the petitioner filed exceptions to an ALJ decision, but failed to file the relevant portions of the OAL transcripts with the reviewing agency, which was the predecessor of the Board. We stated:

Pointing out such errors is meaningless, however, if the agency is unable to assess the merits of those exceptions absent a copy of the relevant portions of the transcript. Thus, a meaningful review necessitates that the agency be supplied timely with at least those parts of the transcript. It must then review those portions which relate to material issues which are raised by the exceptions. We pause here to observe that while the APA does not delineate precisely who must bear the responsibility and cost of providing the necessary transcript in such instances, N.J.S.A. 52:11B-9(e), we conclude that such burden must fall on the party asserting any exceptions which reasonably require agency reference to and review of the relevant parts of the record. N.J.A.C. 1:1-16.4(b).

[Id. at 157-58 (emphasis added).]

Consequently, a reviewing entity, such as the Board, need only review the transcript of an OAL hearing if exceptions are submitted and the party asserting the exceptions provides it with copies of the transcript. That was not done in this case.

Further, Rule 2:5-3(a) requires that "if a verbatim record was made of the proceedings before the court, agency or officer from which the appeal is taken, the appellant shall, no later than the time of the filing and service of the notice of appeal, serve a request for the preparation of an original and copy of the transcript, as appropriate." Subsection (b) requires that "the transcript [] include the entire proceedings in the court or agency from which the appeal is taken." Id. "[A] party appealing to this court from a final decision of a state administrative agency must file a transcript of any hearing before the agency and an appendix containing the parts of the agency record which are essential to a proper consideration of the issues presented on appeal." Willoughby v. Planning Bd. of Tp. of Deptford, 306 N.J. Super. 266, 274 (App. Div. 1997) (citing R. 2:5-3(b); R. 2:5-4(a); R. 2:6-1(a)(1)(E)).

Because Boone is challenging the factual determinations of the ALJ as adopted by the Board in this appeal, the transcripts were an essential part of the record if we are to make "a meaningful review" of the issue presented with respect to the quality of the evidence supporting the agency's decision. Boone's failure to provide the transcripts warrants dismissal of the appeal as to that issue.

Nevertheless, we note that our role in reviewing the factual findings of an administrative agency is limited. In re Taylor, 158 N.J. 644, 656 (1999); Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). "If the Board's factual findings are supported 'by sufficient credible evidence, courts are obliged to accept them.'" Brady, supra, 152 N.J. at 210 (citation omitted). We may not vacate an agency's determination because of doubts as to its wisdom or because the record may support more than one result. De Vitis v. N.J. Racing Comm'n, 202 N.J. Super. 484, 489-90 (App. Div.), certif. denied, 102 N.J. 337 (1985). Finally, "it is not for [the courts] or the agency head to disturb [a] credibility determination, made after due consideration of the witnesses' testimony and demeanor during the hearing." H.K. v. State, 184 N.J. 367, 384 (2005). See also Taylor, supra, 158 N.J. at 656.

Our review of the ALJ's decision itself reveals that the facts, as she found them, support her ultimate conclusion that Boone physically abused O.D. in violation DHS Admin. Order No. 4:08, supp.1, C-3. While the testimony of the witnesses offered by both sides was starkly different on important points, the issue of credibility was for the ALJ. See H.K., supra, 184 N.J. at 384. We find nothing in the record or the arguments advanced by Boone to suggest that the ALJ's factual findings were not supported by sufficient credible evidence.

B

We turn now to Boone's argument, in Point II, that his employment should not have been terminated, but rather that the principles of progressive discipline should have been applied.

It is uncontested that the Boone's altercation with O.D. was his first disciplinary violation. An employee's "prior disciplinary record [is] inherently relevant to determining an appropriate penalty" for an offense. In re Carter, 191 N.J. 474, 483 (2007). Ordinarily, a first offense would not result in termination. However, the Supreme Court has "recognized that some disciplinary infractions are so serious that removal is appropriate notwithstanding a largely unblemished prior record." Id. at 484.

Our review of administrative sanctions is limited to determining "'whether such punishment is so disproportionate to the offense, in light of all the circumstances, as to be shocking to one's sense of fairness.'" In re Polk, 90 N.J. 550, 578 (1982) (quoting Pell v. Bd. of Educ., 313 N.E.2d 321, 327 (N.Y. 1974)). "The threshold of 'shocking' the court's sense of fairness is a difficult one, not met whenever the court would have reached a different result." In re Herrmann, 192 N.J. 19, 30 (2007). Progressive discipline need not even be considered when "the misconduct is severe, when it is unbecoming to the employee's position or renders the employee unsuitable for continuation in the position, or when application of the principle would be contrary to the public interest." Herrmann, supra, 192 N.J. at 33.

DHS Admin. Order No. 4:08 required the Director of Employee Relations to prepare a "Table of Offenses and Penalties." For offense C-3, "[p]hysical or mental abuse of a patient, client, resident or employee," removal is listed as the only possible permissible punishment for an employee committing such an offense. Id. at supp.1, C-3. Physical abuse is defined as:

a physical act directed at a client, patient or resident of a type that could tend to cause pain, injury, anguish, and/or suffering. Such acts include but are not limited to the client, patient or resident being kicked, pinched, bitten, punched, slapped, hit, pushed, dragged, and/or struck with a thrown or held object.

[Id. at supp.3.]

Given the ALJ's finding that Boone assaulted O.D., Boone's termination is not "shocking to one's sense of fairness." Rather, it is appropriately based on the administrative order requiring that an employee found to have physically abused a patient must be terminated. Boone's conduct rises to the level of severity at which the principles of progressive discipline need not even be considered. See Herrmann, supra, 192 N.J. at 33. We affirm Boone's termination based on the ALJ's finding that he assaulted O.D. and DHS's proscribed penalty for such a serious offense.

III

 
In conclusion, we dismiss Boone's appeal as it relates to the factual basis of the ALJ's decision because of his failure to provide the necessary transcripts. We affirm the termination of Boone's employment because the nature of the offense did not warrant a lesser penalty under the considerations of progressive discipline.

Dismissed in part, affirmed in part.

Dr. Surinder Sandhu, a psychiatrist at AKFC, testified that, although some of the patient witnesses, including O.D., suffered from delusions, the delusions were either controlled by medication or would not affect the competency of the witnesses to testify.

Boone offered the testimony of Ronald McMullen to attack Sekhon's credibility. McMullen testified about how much could be observed in the ward from within the medication room if the door was closed. The ALJ, who visited the facility, found that it would have been possible for Sekhon to observe the altercation through the gap between the doors of the medicine room.

In Morrison, we were able to reach the merits of the appeal because the petitioner had corrected his prior deficiency by providing the transcripts as part of his appeal. Morrison, supra, 216 N.J. Super. at 160. Boone has not done so in this case.

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A-6604-06T3

RECORD IMPOUNDED

February 9, 2009