IN THE MATTER OF JOSEPH GAINES TRENTON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5638-08T35638-08T3

IN THE MATTER OF JOSEPH GAINES,

TRENTON.

_________________________________

 

Argued January 12, 2010 - Decided

Before Judges Gilroy and Simonelli.

On appeal from a Final Administrative Decision of the New Jersey Civil Service Commission, Agency Docket No. 2005-3468-I.

Bruce R. Darvas argued the cause for appellant Joseph Gaines (Katz & Dougherty, attorneys; Mr. Darvas, on the brief).

Molly S. Marmion argued the cause for respondent City of Trenton (Knapp, Trimboli, Prusinowski, attorneys; Stephen E. Trimboli, of counsel and on the brief; Ms. Marmion, on the brief).

Anne Milgram, Attorney General, attorney for respondent New Jersey Civil Service Commission (Andrea R. Grundfest, Deputy Attorney General, on the brief).

PER CURIAM

Appellant Joseph Gaines appeals from the January 15, 2009 final decision of the Civil Service Commission (Commission) upholding the City of Trenton's (City) Final Notice of Disciplinary Action (FNDA) removing him from his employment. Appellant also appeals from the Commission's July 13, 2009 final decision denying his motion for reconsideration. We affirm.

On August 22, 1994, appellant began his employment with the City in the provisional title of sanitation inspector, a title later made permanent. On May 4, 1998, appellant was promoted to the provisional title of assistant supervisor of motor pool in the Division of Purchasing.

According to the City's purchasing agent and appellant's immediate supervisor, Karen Marut, appellant's responsibilities as assistant supervisor of motor pool included overseeing the sale and disposal of City vehicles that are no longer needed or useful, soliciting quotations and bids for vehicles, and maintaining vehicles used by the City's department directors. Marut explained to appellant all of his job duties and instructed him in the proper procedures for maintaining and disposing of City vehicles. The disposal procedures require that the appropriate division head send a memorandum to the appropriate department director identifying any vehicles being considered for disposal and the reasons therefore. If the department director agrees with the vehicle's disposal, he or she forwards a disposal request to the Business Administrator for final approval. Final approval is then sent to the appropriate employee, in this instance appellant, for the vehicle's disposal.

The disposal procedures further provide that depending on whether or not the vehicle is operable, it is either taken to a recycling yard or sold at auction. The vehicle's title must be obtained from the clerk's office and signed before being delivered to the buyer. Payment must be received simultaneously with the delivery of the signed title and sent to the Division of Purchasing. The vehicle's license plate, radio and other accessories must be removed prior to its disposal or sale. Appellant never expressed confusion or a lack of understanding of the disposal procedures, never approached Marut for clarification, and never suggested any changes.

In December 2004, Michael Muccie, manager of Trenton Auto Recycling (TAR), approached appellant and offered to dispose of the City's scrapped vehicles using methods appellant believed would be less labor intensive than those used by Mercer Wrecking, the City's vehicle recycler at the time. Appellant conferred with Wahab Onitiri, an assistant streets supervisor in the Division of Streets, and the two compiled a list of eight vehicles for disposal by TAR. TAR gave appellant payment for the vehicles, which appellant gave to Onitiri instead of sending it to the Division of Purchasing. Appellant gave TAR unsigned titles to the vehicles.

TAR took six more vehicles from the Water Department for disposal. Without confirming whether or not TAR had paid for those vehicles, appellant gave TAR their unsigned titles. All of appellant's dealings with TAR violated the disposal procedures.

In January 2005, Frank Potocki, one of the City's safety inspectors, saw several City vehicles with City seals, identification numbers and license plates parked on the street outside TAR's lot. Potocki obtained from TAR a list of the fourteen vehicles that it took for disposal. He also discovered that TAR had unsigned titles to the vehicles. Potocki informed Marut of the situation.

Marut investigated appellant's files and determined that he had violated the disposal procedures by delivering the vehicles to TAR without authorization from the appropriate supervisors and without signed titles; by failing to obtain simultaneous payment for the vehicles; and by failing to remove the license plates, city emblems, and radios from the vehicles.

On February 9, 2005, the City served a Preliminary Notice of Disciplinary Action (PNDA), seeking appellant's removal from his provisional title of assistant supervisor of motor pool for incompetency, inefficiency, failure to perform duties, neglect of duty and other sufficient cause. The City also suspended appellant without pay.

At a disciplinary hearing before a hearing officer, appellant declined to present evidence and agreed to a summary disposition. The hearing officer issued a written decision sustaining the charges, finding that appellant failed to perform his duties; performed his duties incompetently and inefficiently; neglected his duties; failed to properly dispose of City vehicles; disposed of City vehicle without authorization; and failed to prepare required documentation for the vehicles' disposal. The City issued a FNDA, notifying appellant of his removal, effective February 9, 2005.

Appellant appealed, and the matter was transmitted to the Office of Administrative Law (OAL) for a hearing as a contested case. The City filed a motion to dismiss the appeal, arguing that appellant had no right to an appeal of his removal from his provisional title of assistant supervisor of motor pool. The parties later agreed that the appeal would be from appellant's removal from his permanent title of sanitation inspector on the same charges as specified in the FNDA. On appeal, appellant argued, in part, that he had no responsibility for the disposal of City vehicles and that Marut never explained the disposal procedures to him.

The Administrative Law Judge (ALJ) issued an initial decision, finding the City's witnesses were credible and appellant was not. The ALJ rejected appellant's denial of responsibility for disposing of City vehicles, noting that his involvement in the process belied such a claim. The ALJ concluded that appellant "rather thoroughly failed to follow the proper procedures to dispose of fourteen City vehicles," and that "the City has met its burden of establishing all the disciplinary charges against'" him. In affirming appellant's removal, the ALJ concluded as follows:

It is well-settled that sufficiently egregious conduct or dereliction may result in the penalty of removal, without need to resort to progressively severe disciplines as might otherwise be appropriate. Here, the appellant failed in every respect to comply with the vehicle disposal procedures that [Marut] taught him. His explanations do not suffice to mitigate the substantial deviations from what was expected of this public employee, to whom proper disposition of public property had been entrusted.

In his exceptions filed with the Commission, appellant argued, in part, that due to his spotless record, removal was an excessive penalty pursuant to the principles of progressive discipline, which the ALJ failed to consider. The Commission issued a Final Administrative Action accepting and adopting the ALJ's factual and credibility findings and conclusions. After considering the seriousness and egregiousness of the underlying incident, the Commission upheld appellant's removal, finding that "notwithstanding [appellant's] largely unblemished record," the penalty imposed was not "unduly harsh nor disproportionate to the offenses and should be upheld."

Appellant petitioned the Commission for reconsideration pursuant to N.J.A.C. 4A:2-1.6, based on a certification from Muccie stating that Onitiri had advised him that TAR's proposal to dispose of scrapped City vehicles had been accepted, and that he had offered to return the vehicles to the City prior to receiving the signed titles. Appellant contended that this "new evidence" cast doubt on the egregiousness of his infraction and whether the removal penalty of removal was appropriate. He argued that the penalty was excessive because the City could have mitigated any harm it allegedly suffered by stopping the transaction prior to completion, and it effectively ratified his actions by completing the transaction. Relying on In Re Herrmann, 192 N.J. 19 (2007), appellant maintained that progressive discipline should have been imposed.

The Commission issued a Final Administrative Action, concluding that Muccie did not provide any new evidence not already presented to the ALJ, that appellant knew of Muccie and his involvement in this matter, yet chose not to call him as a witness and presented no reason for his failure to do so, and that the City had no opportunity to cross-examine Muccie if the Commission accepted his certification. The Commission also concluded that Muccie's statements did not exonerate appellant of the wrongdoing the ALJ found he committed. The Commission further concluded that "the mere fact that the [City] provided the titles to the scrapped vehicles also does not mitigate the appellant's actions. Based on the egregiousness of the appellant's actions as was thoroughly discussed in the prior decision, removal was the appropriate penalty."

On appeal, appellant only challenges the penalty imposed. He contends that the Commission erred in failing to apply progressive discipline where he had no prior disciplinary record. He also contends that the Commission erred in affirming his removal where the City failed to mitigate its damages by canceling the transaction, and instead, ratified his actions by completing it. We disagree with these contentions.

Our review of an administrative agency's final decision is limited. Herrmann, supra, 192 N.J. at 27; In re Carter, 191 N.J. 474, 482 (2007). An agency's final "decision will be sustained unless there is a clear showing that it is arbitrary, capricious, or unreasonable, or that it lacks fair support in the record." Herrmann, supra, 192 N.J. at 27-28.

We give "substantial deference to the agency's expertise and superior knowledge of a particular field. Deference controls even if the court would have reached a different result in the first instance." Ibid. However, we are "'in no way bound by the agency's interpretation of a statute or its determination of a strictly legal issue.'" Carter, supra, 191 N.J. at 483 (quoting Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85, 93 (1973)).

"That deferential standard applies to the review of disciplinary sanctions[.]" Herrmann, supra, 192 N.J. at 28. We "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.'" Ibid. (quoting 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.'" Id. at 28-29 (quoting Polk, supra, 90 N.J. at 578). "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 29. The Commission's choice of sanction is accorded substantial deference, and "[t]hat choice is made weightier when . . . it is the penalty imposed by the appointing authority and affirmed by the ALJ." Id. at 36.

The principle of progressive discipline can be applied to downgrade the penalty for a current offense "for an employee who has a substantial record of employment that is largely or totally unblemished by significant disciplinary infractions." Id. at 33. However,

progressive discipline is not a necessary consideration when reviewing an agency head's choice of penalty 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.

[Ibid.]

Accordingly, progressive discipline would not apply to a single incident where the appointing authority determines that an employee's conduct "has so utterly rendered [him or] her devoid of the trust that [the appointing authority] must place in its . . . workers[.] Id. at 37. Under these circumstances, the appointing agency's "judgment should not be lightly second-guessed." Ibid.

Applying these principles, we discern no reason to disturb the Commission's decision to affirm the penalty of removal. Because of its severity and egregiousness, appellant's single act of misconduct does not require application of progressive discipline. Appellant was responsible for implementing and enforcing procedures relating to the disposition of public property, and to the receipt of compensation for that property. He violated these procedures. The Commission concluded that such misconduct constitutes an egregious breach of the public trust inherent in appellant's position, warranting his removal. That conclusion is amply supported by the record.

Appellant's remaining contention that removal was inappropriate because the City failed to mitigate its damages and ratified his misconduct by completing the transaction is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

 
Affirmed.

(continued)

(continued)

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A-5638-08T3

July 2, 2010