IN THE MATTER OF THE TENURE HEARING OF ANDREW GALL

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5735-07T25735-07T2

IN THE MATTER OF THE TENURE

HEARING OF ANDREW GALL

_________________________________________________

 

Argued November 5, 2009 - Decided

Before Judges Cuff and Payne.

On appeal from the Final Decision of the

New Jersey State Board of Education, Docket

No. 2953-07.

Rosemarie Cipparulo argued the cause for

appellant Andrew Gall (Weissman & Mintz, LLC, attorneys; Ms. Cipparulo on the brief).

Laurie M. Tompkins, Deputy Attorney General,

argued the cause for respondent New Jersey

Department of Human Services (Anne Milgram,

Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Ms. Tompkins, on the brief).

Anne Milgram, Attorney General, attorney for respondent State Board of Education (Jennifer L. Campbell, Deputy Attorney General, on the statement in lieu of brief).

PER CURIAM

Andrew Gall, a tenured teacher at the New Lisbon Developmental Center (NLDC), a home for developmentally disabled adults, appeals from a final administrative decision of the State Board of Education terminating his employment on the ground that he committed an act of abuse against a client, D.K., by reflexively slapping him on the back or on the back of his head after D.K. had unexpectedly punched Gall in the chest near the location of an implanted pacemaker-defibrillator. On appeal, Gall argues that the State Board of Education's decision was arbitrary, unreasonable and not supported by credible evidence in the record. He argues additionally that the penalty of termination was too severe and contrary to principles of progressive discipline. We affirm.

I.

The record in the matter demonstrates that Gall had been employed by the NLDC in various capacities since September 1965, and that he had been tenured as a teacher since 1987. On December 6, 2000, the Department of Human Services promulgated Administrative Order 4:08, Supplement 3, entitled Prohibition Against Abuse. The order provided:

The clients, patients, and residents receiving services provided by this Department are to be treated with respect and dignity. The policy of the Department has been and continues to be that no client, patient or resident will be abused.

In order to clarify and be certain that all employees understand and are aware of what is considered abuse, each appointing authority will assure that all present and future employees receive, as soon as possible, a copy of this supplement and that a record of such be made and retained.

The current footnote 3 of Supplement 1 of Administrative Order 4:08, Disciplinary Action Policies and Procedures is rescinded and the following new footnote 3, which defines physical abuse, is adopted:

Physical abuse is 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.

Supplement 1, Table of Offenses and Penalties and Their Application, provides that for a first infraction/incident of physical abuse, an employee is to be removed from employment.

It is essential that we treat each other and our clients, patients and residents with respect and dignity.

Gall acknowledged receipt of the new policy on May 14, 2001. Additionally, the Division of Developmental Disabilities provided instruction to employees in crisis intervention, behavior management and non-violent restraint techniques pursuant to a program entitled "Handle with Care." Gall had received instruction in Handle with Care procedures, and at the administrative hearing conducted in the matter, he admitted that slapping a client was not part of the program's procedures.

On January 30, 2007, Gall was detailed to a portion of the NLDC known as Ivy Cottage during the noon hour. In a confidential incident statement, given on February 1, 2007, Gall described what occurred at that time, in relevant part, as follows:

I work at E.I. (Esteem Industries). I am assigned to Vine Cottage between 12:15 p.m. & 1:00 p.m. On Tues. 1-30-07 while in a Vine classroom, I was struck by an individual, [D.K.], on my chest, just missing my pacemaker-defibrillator. I put my arm up to block his strike but was struck anyway. My first reaction was to slap him on his back. I did not punch him. The shift supervisor (I don't know her name) was standing at the doorway & saw me slap him. She told me not to do that again. I said I would not do that again.

As acknowledged by Gall, the episode was witnessed by the cottage's training supervisor (CTS), Francillia Jones, who provided the following confidential incident statement on January 30. She stated:

On Tuesday 1-30-07 at approx. 1:00 p.m. staff (Ms. Bush) asked me to help her with [D.K.] who[] had left [the activities of daily living (ADL) room] during activities for leisure. [D.K.] was in the lobby headed towards the back lounge. I redirected [D.K.] back into [the ADL room, to] which he went without any problem (willingly). [D.K.] went in [the ADL room] first, I entered next & Ms. Bush entered after me. Upon entering the room I saw staff Mr. Gall sitting in the chair by the yard door. Ms. Bush walked over to that side of the room. [D.K.] suddenly hit Mr. Gall. I counseled [D.K.] by telling him not to hit anyone. I turned to walk out of the room. I then turned back around and witnessed Mr. Gall hit [D.K.] from the back. I said to Mr. Gall why did you hit him. He stated to me "He hit me first." I said to him don't hit him again. . . . I did not see exactly where on the body [D.K.] was hit because [D.K.] was facing me and Mr. Gall was behind [D.K.].

An incident statement was also provided on January 30 by witness Marsha Bush, as follows:

On 1/30/07 I was pulled from Holly to Vine to provide staffing coverage. I had just returned from lunch and another gentleman was covering the room (FAS 207 ADL-room). After several minutes [D.K.] gets up and walks out of the room. I followed to see if he would come back. I saw the CTS and asked for assistance. CTS was able to talk him back in. The CTS's name is Fran Jones. [D.K.] was passing the main entrance heading to the dorm area when the CTS was able to talk him back. [D.K.] return[ed] back to the ADL room quickly. When we got there I saw the staff standing near the door closest to the back yard. His hand was already raised and then he slapped [D.K.] on the back of the head. When asked by the CTS what was he doing, he replied "He hit me first." CTS told him don't you ever put your hands on the individuals.

On the day of the incident, Gall was placed on non-client contact status pending an investigation of the matter. He was suspended with pay, effective February 23, 2007. Tenure charges were filed against Gall on March 5, 2007, alleging that he had engaged in conduct unbecoming a teaching staff member. On March 13, 2007, the New Jersey Department of Human Services's (DHS) Office of Cooperative Labor Relations informed Gall by letter of its intention to dismiss him. Gall responded to the charges in a letter to the Administrator of the Employee Relations Office, stating:

This communication is in response to the communication from you on March 15, 2007, concerning my striking an individual on Jan. 30, 2007.

1. I did not strike the individual on the back of the head as stated by Miss Bush.

2. I do not recall being asked to leave Vine Cottage after the incident as stated by Miss Jones.

3. There was no lapse of time between Mr. [K.] punching me and my slapping him on his back as stated by Miss Jones.

4. I agreed with Miss Jones that I would not hit anyone, after she told me not to hit him again.

5. My slapping him was not premeditated. It was a reaction of self-defense.

6. I have worked at New Lisbon Developmental Center for 41 1/2 years and have a clean record, including no abuse.

7. I believe that my proposed dismissal is too harsh for the infraction I have committed.

8. I am truly sorry for what I have done, and have been agonizing over it ever since it happened.

After a finding of probable cause by the Director of Labor Relations for the DHS, Gall was suspended without pay effective April 23, 2007.

Because Gall contested the charges against him, the matter was referred to the Office of Administrative Law for a hearing, which took place on August 8, 2007. At the hearing, testimony was provided by Joseph Waite, the NLDC's Employee Relations Coordinator, Jones, Bush, and Gall. Waite, who drafted an affidavit in support of tenure charges against Gall, did not perform an independent investigation of the incident, but instead relied on incident reports including those that have previously been set forth in this opinion. His testimony thus added no substantive content to the factual aspects of the matter.

Jones testified in a manner substantially similar to her statement. She stated that, after D.K. returned to the ADL room, "[h]e went over to Mr. Gall and he hit Mr. Gall." Upon observing D.K.'s conduct, Jones told D.K.: "That's not nice, don't hit anyone. Don't do that." On direct examination, Jones stated that she counseled D.K. for two to three minutes; on cross-examination, she reduced the time to "maybe a good 20 seconds, something like that." Jones then turned around to leave the room, but before doing so, turned again to see what D.K. was doing. At that point, Gall "got up and then hit [D.K.]." When the incident occurred, D.K. was facing her, and Gall was behind D.K. Although she did not see where Gall hit D.K., Jones testified on cross-examination that she knew D.K. had been hit because she heard the impact and, as she turned around, "Mr. Gall's hand was coming back from it." She then asked Gall: "Why did you do that, don't do that." Gall replied: "He hit me first." Jones testified further that she immediately reported the incident to her supervisor, and soon thereafter, gave a statement as to what had occurred in an incident report.

Jones confirmed that D.K. was aggressive in his behavior, but she opined that he was not aware of the consequences of his actions. D.K. was described as being similar in size to Gall, or slightly shorter. Both Jones and Bush testified to having been assaulted by clients at the NLDC, and both stated that they had never retaliated.

Bush, like Jones, testified in a manner that was consistent with the statement given by her on the incident report, which was read into the record. In recounting the incident, Bush testified that she did not see D.K. hit Gall, but entered the room just in time to see Gall slap D.K. Additionally, Bush testified that she did not hear Jones counsel D.K. after he punched Gall. On cross-examination, Bush was reminded that, in her statement, she stated that when she entered the room, Gall's hand was already raised. She was then asked whether it was possible that his hand was raised to deflect an attack, and she responded: "It could, but I also heard the slap." She also acknowledged that, since she did not see D.K. hit Gall, it was possible that she "[was not] near or did not see Ms. Jones counsel D.K. after that."

In testimony at the hearing, Gall provided his version of the events. Gall stated that D.K.'s punch to the chest came out of nowhere and that it not only hurt, but was a concern to him because of its proximity to his pacemaker-defibrillator. In answer to the question, "what was your reaction when you saw D.K. coming towards you with a closed fist," Gall responded on direct examination "I put my arms up to block him, but he got through anyway, and then he turned and I smacked him on the back," characterizing his conduct as a "defensive reaction" and stating that he "wanted to stop him." Gall stated that he did not see Jones counseling D.K. after D.K. assaulted him, that there was no significant period of time between D.K.'s punch and Gall's slap, and the whole incident "went in a second." Thereafter, the following exchange occurred:

Q Okay. And could you describe why, when you slapped him, shoved him, whatever you want to call it, why it was in the back?

A It was in the back, not in the head.

Q Right, but why was it if he's punching you why

A Yeah, he punched me and turned immediately.

Q Can you do a description of that for the Judge, how this happened? Just show him how D.K. hit you?

A Yeah. He punched me and turned around to go.

Q Show the Judge again.

A Yeah, he punched me and turned to flee.

* * *

[Counsel for the State]: Your Honor, I just want to reflect for the record that Mr. Gall raised his hand and made a slapping motion in the air for the record.

* * *

[Counsel for Gall]: And I would just like to clarify Mr. Gall was demonstrating what occurred. He showed D.K. punch him in the chest and turn.

After Gall's statement was read into the record, Gall acknowledged that it was an accurate description of what had taken place.

On cross-examination, Gall admitted that slapping a client was not a part of the "Handle with Care" procedures. He admitted further that the reason that he stated in his answer to tenure charges that he had "been agonizing" over slapping D.K. was because that was not a proper response to aggressive behavior by a client. Gall also acknowledged that, after the incident, when questioned by Jones as to why he had struck D.K., Gall responded: "Because he hit me." Additionally, he admitted that he told Jones that he would not do so again. As a final matter the following exchange occurred:

Q All right. And you testified before that, and it's written in your statement . . . as D.K. came towards you, you put your hands up to defend yourself, but you got hit anyway. It that correct, that you stated that?

A When he was right there I put my arms up.

Q Hands up, and you got hit?

A I didn't realize what he was going to do until that point.

Q But you got hit anyway?

A Yes.

Q So weren't there two different things going on here? One was the putting your hands up to defend yourself, and the second part was that after Mr. D.K. turned around, you slapped him? So first, you defended yourself, but unfortunately, you got hit. And then you turned around and slapped D.K., isn't that really what happened?

A My arms were still up and I came down as he turned around and slapped him.

In response to a question on redirect examination as to what his intent was, Gall stated that it was '[j]ust a reaction . . . [a] [d]efensive reaction."

In a decision rendered without the benefit of a hearing transcript, the Administrative Law Judge (ALJ) found

petitioner's two witnesses to the incident on January 30, 2007, to be in conflict with their sworn testimony offered at the hearing. Ms. Jones testified on direct examination that she witnessed respondent slap D.K. However, she later changed her testimony that she did not see respondent actually strike D.K. but rather, that she heard the sound of a slap on skin.

Ms. Bush testified on direct examination that she too saw respondent hit D.K. Later, in her testimony Ms. Bush stated she did not see respondent hit D.K.

* * *

[Respondent] admits that he did, in fact, strike client D.K. However, he asserts that the strike was a reflexive action to protect himself from a blow by D.K. to his chest area where a pacemaker/ defibrillator is implanted. A blow to the implants could have had serious consequences, even life threatening. I FIND respondent's testimony to be credible.

On the basis of his factual findings, the ALJ concluded:

respondent's reflexive action to protect himself from D.K.'s blow, does not constitute client abuse. I CONCLUDE that, under the circumstances of this matter, respondent's testimony was clearly credible that he did not intend to strike D.K. but, rather, attempted to shield himself from what could have been a fatal blow.

The ALJ therefore recommended Gall's reinstatement to his former tenured teaching position "with all back pay and emolument due him."

The Commissioner of the Department of Education declined to accept the ALJ's recommendation. In doing so, the Commissioner found that the ALJ's initial decision did not accurately reflect Bush's testimony as recorded in the hearing transcript and that the inconsistency upon which the ALJ relied to discount her testimony did not in fact exist. With respect to Jones, the Commissioner reconciled inconsistent statements by Jones as to whether she had actually seen Gall strike D.K. by finding that she had heard the slap and had witnessed its immediate aftermath, while noting that Jones's account of the events was "consonant with those of other witnesses, including respondent."

However, the Commissioner continued, she found "no need to rely on the testimony of any external witness in order to reconstruct the events underlying the DHS's tenure charge because there is no dispute about the credibility of the respondent, and his account is both internally consistent and substantially corroborated by the record." The Commissioner held:

There is no doubt based on the testimony of all witnesses, including the respondent that: 1) the respondent was seated when D.K. unexpectedly came up to him and punched him in the chest, in the area of his implanted pacemaker and defibrillator; 2) the respondent did not see D.K. coming and was unable to shield himself from the blow, although he had raised his arms in a last-minute attempt to do so; 3) the respondent was shocked by the blow and horrified by its potential consequences to his implant; 4) after D.K. had turned and begun to walk away from the respondent immediately after punching him, the respondent who by now was standing with arms still raised struck D.K. by smacking him from behind.

As a consequence of Gall's admission that he slapped D.K. after he had turned away, the Commissioner found that the record provided no basis whatsoever for the ALJ's conclusion that respondent "did not intend to strike D.K., but rather attempted to shield himself from what could have been a fatal blow." According to the Commissioner, "what the record shows instead is that the respondent struck D.K. from behind after having unsuccessfully attempted to shield himself, and that he did so as he himself stated at the time of the event because D.K. hit him." What occurred, in the Commissioner's view, was a "spontaneous reactive assault" in response to D.K.'s blow to a susceptible area of Gall's body. Because, at the time of the slap, D.K. "no longer posed a clear and immediate threat" to Gall, his conduct could not fairly be characterized as self-defense.

[I]n order to prevail in its charge of unbecoming conduct, the DHS need not show that sufficient time passed between D.K.'s punch and the respondent's slap in order for the respondent to have made a conscious decision to smack D.K. in retaliation for being struck. However instantaneous or instinctive his action may have been, and however understandable the urge to lash out under circumstances where he had just been attacked in a vital area and feared he might possibly be attacked again, the fact remains that by losing control and slapping D.K. as he did, the respondent violated the DHS's policy unequivocally prohibiting the striking of clients and classifying even the least of such actions as client abuse.

Having found unbecoming conduct on Gall's part, the Commissioner found "little room for discretion" in fashioning a remedy, in light of an agency policy that was clear on its face and had been applied and upheld elsewhere. She observed that DHS's strict client protection policies were promulgated in recognition of the fact that developmentally disabled persons, by virtue of their frequently aggressive and violent behavior, were particularly vulnerable to abuse. While reactions such as Gall's might be tolerable in another context, here the policy of termination was rooted in a compelling public interest. Accordingly, the Commissioner directed that Gall be dismissed from his employment. Upon further review, the Commissioner's decision was upheld by the State Board of Education. This appeal followed.

II.

Gall's appeal arises in the context of standards of care promulgated in connection with the treatment of developmentally disabled adults that, by legislative mandate, "give full recognition to the unique problems and special needs associated with developmental disabilities." N.J.S.A. 30:6D-27(d). In that connection, the Legislature has required that services must "be provided in a manner which respects the dignity, individuality and constitutional, civil and legal rights of each developmentally disabled person." N.J.S.A. 30:6D-2. In effectuating that requirement, the Department of Developmental Disabilities has identified protection of the developmentally disabled from "abuse, neglect and exploitation" as one of its primary goals. N.J.A.C. 10:40-1.1(a)(2). Administrative Order 4:08, Supplement 3, plays a key role in that regard and constitutes the standard by which Gall's conduct must be measured.

In accordance with N.J.S.A. 18A:60-2, a tenured teacher such as Gall is protected from dismissal from his position or reduction in his compensation unless "inefficiency, incapacity, conduct unbecoming a teacher, or other just cause" is demonstrated. The ALJ did not find that standard to have been met. The Commissioner of the Department of Education and the State Board of Education ruled otherwise. An administrative agency may "reject or modify findings of fact, conclusions of law or interpretation of agency policy in [the ALJ's] decision but shall state clearly the reasons for doing so." N.J.S.A. 52:14B-10(c). However,

The agency head may not reject or modify any findings of fact as to issues of credibility of lay witness testimony unless it is first determined from a review of the record that the findings are arbitrary, capricious or unreasonable or are not supported by sufficient, competent and credible evidence in the record.

[Ibid.]

See also Cavalieri v. Bd. of Trs. of the Pub. Employees Ret. Sys., 368 N.J. Super. 527, 534 (App. Div. 2004).

In the present case, the ALJ rejected Bush's testimony as not credible, finding without recourse to the record that Bush had stated on direct examination that she saw Gall slap D.K., but had testified on cross examination that she did not see Gall hit D.K. As Gall concedes on appeal, the facts found by the ALJ in reaching his credibility determination are not supported by the record and are incorrect, since Bush testified both on direct and cross examination to having witnessed Gall slap D.K. Although Gall has contended that his slap was to D.K.'s back, whereas Bush has claimed it was "upside" D.K.'s head, it is clear that D.K. was not facing Gall when the slap took place. The Commissioner's similar determination of factual error on the ALJ's part and acceptance of Bush's testimony as reflected in the record was therefore warranted.

In contrast to Bush, the ALJ found Gall to have been a credible witness, and that credibility finding was not contested by the Commissioner. Nonetheless, the Commissioner reached a different factual conclusion from that of the ALJ as to what had occurred. Whereas the ALJ characterized Gall's conduct as defensive, the Commissioner did not, stating that "after D.K. had turned and begun to walk away from the respondent immediately after punching him, the respondent -- who by now was standing with arms still raised -- struck D.K. by smacking him from behind." Our review of the record discloses that the Commissioner's conclusion with the possible exception of the conclusion that Gall stood before striking D.K. is factually supported, whereas the ALJ's is not. While it is unquestionable that Gall was startled and alarmed by D.K.'s assault, the record consistently reflects the fact that Gall slapped D.K. only after he had turned away from Gall. Indeed, Gall admitted at one point during his testimony that the slapping occurred as D.K. attempted to flee, and he admitted to stating to Jones that the reason he slapped D.K. was because D.K. had hit him first.

Jones, the other witness to the events of January 30, 2007, was not deemed credible by the ALJ. On appeal, the Commissioner sought to reconcile potentially contradictory portions of her testimony. We decline to determine whether the Commissioner was legally authorized by N.J.S.A. 52:14B-10(c) and Cavalieri to reach the conclusions that she did regarding Jones's testimony, finding resolution of that dispute unnecessary to our decision. We instead base our decision upon unrefuted evidence that Gall struck D.K. after D.K. had concluded his assault and had turned away.

The remaining issue, then, is whether Gall's admitted "reactive" slap to D.K.'s back, which he acknowledged was an improper response to aggressive behavior on the part of a developmentally disabled client, constituted grounds for termination as required by Administrative Order 4:08, Supplement 3. Interpreting that Order in accordance with its plain language, the Commissioner concluded that she had little discretion but to terminate Gall, despite his lengthy and previously unblemished history. The Board of Education concurred. Gall urges, in light of his long and discipline-free record, that progressive discipline should have been employed.

In considering Gall's appeal from the sanction imposed in this matter, we are mindful of the limited scope of our review. As stated by the Court in In re Herrmann, 192 N.J. 19 (2007):

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); see also Lefelt [37 New Jersey Practice, Administrative Law and Practice,

328,] at 334 (stating same and that "[a]fter reviewing the statutory authorization and the record, if the court concludes that the sanction is not illegal or unreasonable, the sanction will be affirmed"). 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. at 578 (citing Pell v. Bd. of Educ., 313 N.E.2d 321 ([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.

[Herrmann, supra, 192 N.J. at 28-29.]

See also In re Zahl, 186 N.J. 341, 353-54 (2006).

As well as articulating the standard of review, the Court's decision in Herrmann is instructive because it involves facts that are roughly analogous to those presented here. In Herrmann, a Division of Youth and Family Services (DYFS) worker assigned to an investigation that included an inquiry into the circumstances leading a child to start a fire in his foster family's basement, flicked a lighter she claims inadvertently in the face of the child while the two were in a room containing oxygen tanks, thereby causing a risk of explosion, personal injury and property damage. When Herrmann's actions became known, it was determined that her bad judgment tainted her ability to be a credible witness for DYFS in a protective services case involving the foster family, precluding her testimony in the case. Additionally, as the result of the conduct, Herrmann was served with a Preliminary and then Final Notice of Disciplinary Action seeking her termination for conduct unbecoming a public employee. Herrmann, supra, 192 N.J. at 24-26. Because Herrmann appealed her removal, a hearing took place before an ALJ, who concluded that DYFS had proven that Herrmann's actions "undermined the public trust in and credibility of DYFS." Id. at 26. Concluding that waving the lighted lighter in the face of a five-year-old was so egregious that, regardless of Herrmann's lack of prior discipline and her status as a relatively new employee, the appointing authority's decision to terminate Herrmann was appropriate, the ALJ affirmed. Ibid. The Merit System Board (MSB) adopted the proposed findings and conclusions of the ALJ. Id. at 27. On further appeal, we agreed that Herrmann had committed conduct unbecoming a public employee, but vacated the agency's order of removal. In re Tammy Herrmann, 387 N.J. Super. 450, 459 (App. Div. 2006). We held that we could not "conclude that the discharge sanction in this matter was warranted by the only charge lodged against the employee: the single instance of excessive and ill-considered conduct involving the cigarette lighter." Id. at 456-57. We found that the incident "was not so evocative of personal shortcomings as to be sufficiently inconsistent with the duties of the position to warrant dismissal in the absence of any other admissible past record of employee misconduct." Id. at 458. We thus remanded for reconsideration of the proper sanction to be imposed in the matter. Id. at 459.

The Supreme Court reversed, stating first: "Reduced to its essence, the issue in this appeal is whether the Appellate Division exceeded the proper scope of its review when it reversed the penalty imposed by the MSB." Herrmann, supra, 192 N.J. at 27. The Court then discussed circumstances in which principles of progressive discipline had been utilized to increase penalties imposed upon employees with bad disciplinary records and utilized to decrease penalties imposed on otherwise blameless employees. Id. at 29-33. However, the Court then recognized that 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." Id. at 33. Among the decisions that the Court discussed as illustrative of this principle was our decision in Cosme v. E. Newark Twp. Comm., 304 N.J. Super. 191, 206 (App. Div.)1997), certif. denied, 156 N.J. 381 (1998), which the Court described as affirming dismissal of a police officer "for infractions that went to the heart of the officer's ability to be trusted to function appropriately in his position." Herrmann, supra, 192 N.J. at 35. Similarly, the Court observed that "lack of competence or unfitness for a position" could likewise provide grounds for termination, ibid., citing in that respect a case in which an accountant's incompetence warranted dismissal. Klusaritz v. Cape May County, 387 N.J. Super. 305, 316, 318 (App. Div. 2005), certif. denied, 191 N.J. 318 (2007).

Turning to the case at hand, the Court observed that it "implicates the public interest in that it reflects the standards of judgment, as well as performance, that DYFS expects of its workers." Herrmann, supra, 192 N.J. at 36. The Court concluded:

When DYFS determines that an employee's conduct has so utterly rendered her devoid of the trust that DYFS must place in its field workers, then that judgment should not be lightly second-guessed. . . .

The MSB is the entity charged with keeping State-government-wide standards of employee performance relatively consistent in disciplinary matters. [N.J.S.A. 11A:2-6.] The MSB agreed with DYFS and affirmed that Herrmann's conduct constituted just cause for her removal. That judgment reflects sensitivity to the public policy concerns faced by DYFS in the difficult job that it is expected to perform. The face of DYFS to the public and others who measure its performance is that of the case workers DYFS sends out on its behalf. . . . Those individuals are the people DYFS must trust to behave appropriately and to use sound judgment when making, at times, on-the-spot decision about the families they visit. . . . DYFS must be able to rely on a worker's demonstrated good judgment from the moment of the initial investigation until the best interests of the child have been secured.

[Id. at 37-38 (footnotes and some citations omitted).]

Of relevance to the present matter, the Legislature has similarly recognized the fundamental right of its developmentally disabled State residents to be provided with services that respect the "dignity, individuality and constitutional, civil and legal rights" that they possess. N.J.S.A. 30:6D-2. The DHS has sought to further that recognition by the enactment of Administrative Order 4:08, Supplement 3, which declares the Department's policy against client abuse; prohibits physical abuse in the form of slapping, among other things; and mandates termination as the appropriate response to a violation of the DHS's order.

The evidence in this matter establishes without question that Gall violated DHS policy when he slapped D.K., however "reflexively," after D.K. had concluded his assault and turned away. By doing so, Gall demonstrated a lack of judgment and an unfitness for his position that struck at the heart of the DHS's mission to safeguard its disabled charges. Like Herrmann, Gall forfeited the DHS's trust that he would act in compliance with its standards and stated goals. We will not second-guess the penalty imposed as a result.

 
Affirmed.

Esteem Industries, a group workshop, utilizes developmentally disabled adults in the assembly of parts for industry.

The Commissioner noted that, even if Gall's action had been in self-defense, the conduct was still prohibited by DHS policy.

Whether Gall was standing is not clearly set forth in the record.

We note that in the present appeal Gall raises the claim that D.K. turned his back only because of the follow-through effect of his swing at Gall. This theory was not advanced at the hearing before the ALJ and is not supported by the evidence.

We acknowledge that, in Cosme, the officer's infractions were numerous and bore no relationship to the single incident at issue here. We note the Court's discussion of the case for the principle the Court expressed, not for the facts of the matter.

(continued)

(continued)

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A-5735-07T2

RECORD IMPOUNDED

February 1, 2010