IN THE MATTER OF JERRY DUCKWORTH DEPARTMENT OF YOUTH SERVICES, COUNTY OF PASSAIC

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6007-07T16007-07T1

IN THE MATTER OF

JERRY DUCKWORTH,

DEPARTMENT OF YOUTH

SERVICES, COUNTY OF

PASSAIC

_____________________________________

 

Argued November 17, 2009 - Decided

Before Judges Parrillo and Ashrafi.

On appeal from the Final Administrative Action of the Merit System Board, New Jersey Department of Personnel, Docket No. 2007-2534-I.

Paulette Pitt argued the cause for appellant, Jerry Duckworth (Fusco & Macaluso, attorneys; Ms. Pitt, on the brief).

Jose R. Santiago, Assistant County Counsel, argued the cause for respondent County of Passaic (William J. Pascrell, III, Passaic County Counsel, attorney; Matthew Malfa, Deputy County Counsel, on the brief).

Anne Milgram, Attorney General, attorney for respondent New Jersey Merit System Board (Pamela N. Ullman, Deputy Attorney General, on the statement in lieu of brief).

PER CURIAM

Appellant Jerry Duckworth appeals from a final decision of the New Jersey Department of Personnel, Merit System Board, dismissing his appeal of removal from employment. The Board adopted the findings and conclusions of an Administrative Law Judge (ALJ), determining that Duckworth had entered into an enforceable settlement agreement with his employer, the County of Passaic. We affirm.

Duckworth was employed as a senior juvenile detention officer at the Passaic County Juvenile Detention Center. In 1990, he injured his back at work and required surgery to remove a herniated disc. The surgery left Duckworth suffering chronic lower back pain. In 2002 and 2003, Dr. Halejian, a physician engaged by Passaic County, examined Duckworth and diagnosed permanent back injury and a chronic foot drop. Dr. Halejian reported to the County that, because of these medical conditions, Duckworth was not able to perform safely the duties of a juvenile detention officer and that he was at risk for re-injury.

To accommodate Duckworth's disability, the County re-assigned him to less rigorous duties in the laundry room of the detention center. About one and a half years later, Duckworth objected to this re-assignment and sought a hearing before the Merit System Board.

In 2006, the Board determined that the duties assigned to Duckworth were outside his job description and ordered the County to re-assign him and also to conduct a complete fitness-for-duty examination. Dr. Halejian examined Duckworth again in May 2006 and reiterated his prior conclusions. He stated that Duckworth's medical conditions placed him and others at risk of harm.

The County gave notice to Duckworth of disciplinary action to remove him from his position because of unfitness for duty. After conducting departmental hearings, the County terminated his employment on December 6, 2006. Duckworth immediately requested a hearing before the Merit System Board and also applied for disability retirement to the Division of Pensions and Benefits. Some months later, he withdrew his retirement application.

Pursuing his appeal of removal from employment, Duckworth appeared with his attorney for a hearing before an ALJ on January 9, 2008. The attorneys conferred and reached an agreement, which they reported to the ALJ as a settlement. No transcript was made on that date, but the ALJ discussed the terms of the settlement with counsel in the presence of Duckworth. The settlement required that the County support re-instatement of Duckworth's disability retirement application in exchange for his dismissing the pending appeal.

The attorney for the County drafted a written settlement agreement and sent it to Duckworth's attorney. When he received no response for several months despite several inquiries, he filed a motion before the ALJ to enforce the settlement.

In the meantime, Duckworth re-submitted his application for disability retirement. In March and April 2008, he heard from the Division of Pensions and Benefits that the County had not responded to its requests for information relevant to his application.

On April 22, 2008, the parties appeared before the ALJ, Duckworth now accompanied by a different attorney from the same law firm. The County sought enforcement of the oral agreement it claimed had been reached on January 9. The County reported that Duckworth's application had in fact been re-instated and would be considered as dating back to its original filing in December 2006. Duckworth's attorney responded that no final settlement had been reached at the January hearing, that the County had not supported his retirement application as promised, that Duckworth refused to sign the written settlement agreement for that reason, and that Duckworth had changed his mind and wanted settlement to be contingent on the Division of Pensions and Benefits approving his disability retirement.

In May 2008, the ALJ issued a written decision, making detailed findings of fact regarding the January 9 session and the terms of the parties' agreement. She stated that she was present during the resolution of the matter on that date and that approval of Duckworth's pension application was not a condition of the agreement. Rather, the agreement required that "Duckworth would withdraw his request for hearing and the [County] would do everything in its power to reinstate appellant's application for accidental disability retirement benefits and to support the application." She found that the proposed written settlement agreement submitted by the County accurately represented the agreement of the parties, and she concluded that it should be enforced.

On June 30, 2008, the Merit System Board accepted and adopted the written findings and conclusions of the ALJ and dismissed Duckworth's appeal. Duckworth filed a timely notice of appeal to this court.

Our standard of review is limited. Public Serv. Elec. & Gas Co. v. N.J. Dep't of Envtl. Protec., 101 N.J. 95, 103 (1985). We will reverse a decision of an administrative agency only if it is contrary to law or arbitrary, capricious, or unreasonable. Brady v. Bd. of Review, 152 N.J. 197, 210-11 (1997). "[I]f substantial credible evidence supports an agency's conclusion, a court may not substitute its own judgment for the agency's even though the court might have reached a different result." Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992).

New Jersey has a strong public policy in favor of settlements. Brundage v. Estate of Carambio, 195 N.J. 575, 601 (2008); Nolan v. Lee Ho, 120 N.J. 465, 472 (1990); Pascarella v. Bruck, 190 N.J. Super. 118, 125 (App. Div.), certif. denied, 94 N.J. 600 (1983). Parties are bound if they have orally agreed to "all the essential terms of a [settlement] contract." Id. at 126 (quoting Comerata v. Chaumont, Inc., 52 N.J. Super. 299, 305 (App. Div. 1958)).

Duckworth argues that his refusal to sign the written settlement papers is strong evidence that the parties had not reached agreement on January 9. Neither a signed, written agreement nor a record of the settlement placed before the court is necessary to make an enforceable settlement agreement. Id. at 124; see also Jennings v. Reed, 381 N.J. Super. 217, 228-29 (App. Div. 2005). Here, the ALJ recounted the essential terms of the settlement. She explicitly rejected Duckworth's suggestion that he had the right to add a new material term to the agreement, namely, approval of his retirement application by a different State agency, the Division of Pensions and Benefits.

In addition, Duckworth contradicts his own argument that there was no settlement agreement by also claiming that the County did not support his application. He contends that the County's failure to respond to requests for information gave him the right to withdraw his assent to the tentative agreement. Because the County's obligation to support Duckworth's pension application arose only through the settlement agreement, Duckworth's argument supports the ALJ's finding that the parties had in fact reached agreement.

The ALJ made no findings regarding whether the County had failed to support Duckworth's application as promised. If the County breached the settlement agreement and failed to cure the breach, Duckworth would be entitled to seek enforcement of the settlement, or to seek other contract remedies.

Like other contracts, an aggrieved party to a settlement agreement is relieved of the obligation to perform his promises if the other party has materially breached their agreement. Nolan, supra, 120 N.J. at 472. Before the ALJ, however, Duckworth did not take the position that the County had materially breached an existing settlement. He simply disputed that the parties had agreed to all the terms of a settlement. The ALJ did not hold a hearing or make a record of an alleged breach by the County because of the nature of the application before her. Likewise, we have no occasion on this appeal to determine whether the County was in material breach of the settlement agreement.

Because we find substantial evidence in the record to support the findings and conclusions of the ALJ as adopted by the Merit System Board, the Board's final decision dismissing Duckworth's appeal is affirmed.

 

Since the time of oral argument, defendant County has filed a motion to dismiss the appeal on the ground that Duckworth's disability retirement has in fact been approved, retroactive to July 1, 2007. Duckworth has filed opposition to the motion, arguing that he is entitled to recover lost income from the time of his removal until the effective date of his retirement. Because we have affirmed the decision of the Merit System Board, the County's motion to dismiss the appeal will be denied as moot.

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A-6007-07T1

January 14, 2010