IN THE MATTER OF BETTYE GRIFFIN-STAPLES

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0242-08T30242-08T3

IN THE MATTER OF BETTYE GRIFFIN-STAPLES

___________________________________________

 

Argued March 2, 2010 - Decided

Before Judges Parrillo and Lihotz.

On appeal from the Final Administrative Decision of the Merit System Board, Department of Personnel, Docket No. 2008-901.

Bettye Griffin-Staples, appellant, argued the cause pro se.

Betty M. Ng, Deputy Attorney General, argued the cause for respondent Department of Children and Families (Paula T. Dow, Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Ms. Ng, on the brief).

PER CURIAM

Appellant Bettye Griffin-Staples appeals from a final administrative determination of the Merit Systems Board (MSB) removing her from her position as a Youth Worker for the Vineland Residential Treatment Center (Vineland). Appellant challenges the conclusion of the MSB, advancing both procedural and legal arguments, including: the New Jersey Department of Children and Families (DCF) failed to timely file the charges resulting in appellant's discipline; the charges were retaliatory; in making his findings, later accepted by the MSB, the hearing officer erred in making evidential rulings and credibility determinations; appellant's actions were within acceptable techniques; and the MSB's determination was arbitrary and capricious. We have considered the arguments presented in light of the record and the applicable law, and we affirm.

Vineland is a special population facility, housing approximately thirty to thirty-six "at risk" male and female youths, ranging in age from twelve to eighteen, who have been ordered to the facility for treatment as wards of the State. Generally, the residents have behavioral or mental health problems, are runaways, or are probationers.

Appellant commenced her employment as a Youth Worker on June 10, 2006. Her job responsibilities included supervising the residents, acting as a role model, deescalating conflict, handling aggressive behaviors, and crisis management. Appellant was provided training in techniques to address the behaviors of the special population.

Appellant does not dispute she was trained to address any oppositional behaviors exhibited by Vineland's residents and told that staff must attempt to defuse a situation using various techniques other than physical restraint. In the event a staff member believed physical restraint was necessary, he or she must contact a nurse who is on duty for permission. In the event of an emergency, physical restraint may be employed when a child's behavior presents an immediate danger to self or others. Immediately thereafter, a nurse must be contacted to check the resident.

On September 27, 2006, an incident occurred in Unit 4 between appellant and a thirteen year-old Vineland resident, S.B., which resulted in the underlying charges. S.B. was having a bad day and was not able to engage in a visit with her grandmother. Youth Worker Shirley Clark and appellant were in the office located in S.B.'s cottage. Clark was distributing snacks and appellant was providing pseudo-money to the teenagers to buy candy or sundries when S.B. entered the office, sat in a chair, and refused to leave. S.B. held onto the chair and began cursing as she insisted she was not leaving. S.B. then began to rummage through the desk drawers. Appellant telephoned her supervisor, who did not respond.

According to appellant, she and Clark each took one of S.B.'s arms to lead her out of the office and into the dining room. When she and Clark released S.B., the child became verbally abusive and "ran toward appellant whose back was turned." Clark testified she yelled for S.B. to stop, and she complied. On the other hand, appellant stated she turned toward S.B. and raised her crossed arms with clenched fists, a technique she labeled "cross and block," as S.B. rushed toward her. Appellant further stated S.B. lunged at Clark, causing her to fall.

Two other Youth Workers, Monica Collins and Tanieka Pierce, testified as to their observations of the interaction between appellant and S.B. as displayed on a video monitor in their office. Each stated S.B. attempted to enter the office but was blocked by Clark. They watched Clark and appellant "pull" S.B., holding her upper arms, away from the office about fifteen feet toward the dining room. S.B. was compliant. After releasing S.B., Clark returned to the office; S.B. and appellant faced each other, less than one foot apart. Collins and Pierce saw appellant raise her fist to S.B.'s face. To Collins, it appeared as if appellant was arguing with S.B. Neither Collins nor Pierce saw S.B. raise her hands toward appellant. S.B. then moved toward Clark and attempted to enter the office when Clark fell. The written statement of another youth worker was conditionally admitted; the statement was consistent with the facts as testified by Pierce and Collins.

The incident upset S.B. A Vineland nurse, Paula Jean Frie, R.N., examined the resident, who was agitated and complained her ear was hurt. Frie observed S.B.'s left ear was scraped and irritated with a little blood, but was not torn. She was also missing an earring in her left ear. S.B. admitted she caused Clark to fall when she attempted to retrieve laundry detergent from her locker, located in the office.

The incident was investigated by the Public Defender's Office, Division of Youth and Family Services Conflict Investigation Unit (DYFS). DYFS concluded the allegation of abuse was unfounded, N.J.S.A. 9:6-8.11; however, appellant's conduct raised serious concerns. Vineland determined discipline was warranted and, on May 10, 2007, DCF issued a Preliminary Notice of Disciplinary Action, charging appellant with inappropriate contact or mistreatment of a resident, violation of administrative procedures and/or regulations involving safety and security, violation of a rule, regulation, policy, or procedure and conduct unbecoming a public employee. Appellant appealed and a departmental hearing was held. DCF issued a final notice of disciplinary action removing appellant from her position, effective July 31, 2007.

Appellant appealed her removal and the matter was transferred to the Office of Administrative Law as a contested case. Following a two-day hearing, the Administrative Law Judge (ALJ) found Pierce and Collins more credible than Clark and appellant. Also, appellant's statement that she attempted to call her supervisor was found not to be plausible.

The ALJ found DCF proved appellant restrained S.B. by pulling the child from the office by her arm and committed unbecoming conduct by putting her fist in the air towards S.B., noting her actions escalated the altercation rather than defused it. However, the ALJ determined DCF had not proven appellant threatened or attempted to hit or harm S.B. Consequently, the ALJ dismissed the charge of inappropriate physical contact or mistreatment of a resident, but sustained the charges of violating a rule or procedure and committing unbecoming conduct. The ALJ recommended appellant be reinstated with a sixty-day suspension. DCF filed exceptions.

Upon its review of the record, the MSB independently evaluated the record and accepted and adopted the ALJ's factual findings. However, the MSB declined to adopt the ALJ's recommended penalty and upheld appellant's removal. This appeal ensued.

Our review of an administrative agency's final decision is limited. In re Taylor, 158 N.J. 644, 656 (1999). Deference is afforded to a final agency decision, such as the MSB's, "unless it is arbitrary, capricious, unsupported by substantial credible evidence contained in the record, or in violation of express or implicit legislative policies." In re Juvenile Det. Officer Union County, 364 N.J. Super. 608, 614 (App. Div. 2003); Taylor, supra, 158 N.J. at 656-57; Karins v. City of Atl. City, 152 N.J. 532, 540 (1998); Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). Therefore, we must determine whether the agency's findings could reasonably have been reached on sufficient credible evidence in the record, "considering 'the proofs as a whole,' with due regard to the opportunity of the one who heard the witnesses to judge [] their credibility." Taylor, supra, 158 N.J. at 656 (quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)). However, an agency decision that is manifestly erroneous is not entitled to judicial deference and must be set aside. L.M. v. Div. of Med. Assist. & Health Servs., 140 N.J. 480, 490 (1995).

This "deferential standard equally applies to the review of disciplinary sanctions[,]" as the MSB remains "the entity charged with keeping State-government-wide standards of employee performance relatively consistent in disciplinary matters." In re Herrmann, 192 N.J. 19, 28, 37 (2007). In this regard, the Court has instructed that

[a] reviewing court should alter a sanction imposed by an administrative agency only "when necessary to bring the agency's action into conformity with its delegated authority. The Court has no power to act independently as an administrative tribunal or to substitute its judgment for that of the agency." In re Polk, 90 N.J. 550, 578 (1982) . . . . In light of the deference owed to such determinations, when reviewing administrative sanctions, "the test . . . is '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.'" Polk, supra, 90 N.J. 578 (citing Pell v. Bd. of Educ., 34 N.Y.2d 222, 233 (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.

[Id. at 28-29.]

Guided by these principles, we determine the record contains sufficient evidence to support the ALJ's factual findings, including credibility determinations, as adopted by the MSB. The record discloses appellant breached policy and procedure when she employed the use of restraints in a situation where the use of alternate conflict resolution techniques was appropriate. Further, the restraint was utilized without first contacting a facility nurse or her supervisor. Likewise, appellant acted improperly by raising a fist to the teenage resident.

Appellant also suggests error occurred because hearsay statements surrounding the incident were admitted, and the testimony of Pierce and Collins was not credible because they watched the scene without the benefit of audio. Also, appellant asserts her use of the "cross and block" was an authorized technique. We disagree.

Written hearsay statements were part of the ALJ's record, which is an acceptable practice in administrative hearings. N.J.S.A. 52:14B-10(a); Weston v. State, 60 N.J. 36, 50-51 (1971). However, these documents were merely supplemental to the testimonial evidence supporting the factual findings. As we noted, the ALJ's determination accepted as credible the almost uniform testimony of Pierce and Collins, as contrasted with the inconsistent and implausible statements of Clark and appellant. Collins and Pierce did not embellish what they viewed but succinctly described what they saw -- appellant's aggressive raised fist toward a thirteen-year-old resident, not the defensive technique asserted. S.B. was moved from the office, walked back toward Clark and did not appear aggressive. Frie also described S.B.'s condition after the confrontation and explained staff were not to put their hands on the residents. After considering all of the evidence, the MSB rejected appellant's version of events, a determination that is solidly supported by the competent credible evidence. It will not be disturbed.

We also deny appellant's challenge to the timeliness of the disciplinary action. The Preliminary Notice of Disciplinary Action was issued May 10, 2007, a hearing was held on June 28, 2007 with the written report rendered on July 31, 2007. Once the hearing report was received, DCF issued the Final Notice of Disciplinary Action on August 9, 2007. N.J.A.C. 4A:2-2.6(d) requires final action to be rendered within twenty days of a hearing. A hearing is not concluded until the report is issued. Thus, although more that twenty days passed from the close of evidence, a Final Notice of Disciplinary Action could not issue until the hearing report was rendered. We conclude the final notice was timely issued.

Finally, appellant's claims of malicious abuse of legal process, malice and error in referencing prior disciplinary actions are without sufficient merit to warrant additional discussion. R. 2:11-3(e)(1)(E).

Following our review, we discern no arbitrariness or caprice actions by the MSB in the result reached or the reasons given. We are, therefore, required to respect the MSB's expertise and defer to its considered determination. See Campbell v. N.J. Racing Comm'n, 169 N.J. 579, 587-88 (2001); Karins, supra, 152 N.J. at 540.

 
Affirmed.

(continued)

(continued)

10

A-0242-08T3

RECORD IMPOUNDED

May 24, 2010