AMERICO ARZOLA v. CIVIL SERVICE COMMISSION

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1461-10T4

AMERICO ARZOLA,

Appellant,

v.

CIVIL SERVICE COMMISSION,

Respondent.

_________________________________

AMERICO ARZOLA,

Appellant,

v.

NEW JERSEY DEPARTMENT OF

CORRECTIONS - CENTRAL RECEPTION

AND ASSIGNMENT,

Respondent.

___________________________________

August 24, 2012

 

Argued January 19, 2012 - Decided

 

Before Judges Cuff, Lihotz and St. John.

 

On appeal from the Civil Service Commission, CSC Docket Nos. 2010-1713 and 2010-3142; and New Jersey Department of Corrections.

 

Raymond C. Staub argued the cause for appellant (Destribats Campbell, L.L.C., attorneys; Mr. Staub, on the brief).

Lisa Dorio Ruch, Deputy Attorney General, argued the cause for respondents (Jeffrey S. Chiesa, Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Ms. Ruch, on the brief).

 

PER CURIAM

Americo Arzola appeals from the February 10, 2011 final administrative action of the Civil Service Commission (the Commission), finding that the appointing authority's removal of Arzola was justified, and upholding Arzola's disqualification from the Correction Sergeant examination. The Commission accepted and adopted the findings of fact and conclusions of law, as contained in the Administrative Law Judge's (ALJ) Initial Decision, dated August 13, 2010. In light of the record and arguments advanced on appeal, we affirm in part, and reverse in part.

I.

On May 30, 2009, Arzola, a ten-year correctional officer with the New Jersey Department of Corrections (DOC), sat for his third attempt to pass the Correction Sergeant examination. Thereafter, he was notified he would be eligible to receive the sergeant title based on his exam score of 185. On October 20, 2009, Arzola attended a test review session to review his Scantron1 answer sheet and to determine whether his test was scored correctly. Review candidates must schedule the review session in advance so that staff can obtain each candidate's test answer sheet and correct answer key. Arzola's review took place at a scheduled time and place where candidates were required to sign in and a room monitor was to provide verbal instructions and monitor their review. However, there was no evidence that the verbal instructions were given to Arzola. The room was equipped with a surveillance camera, which only captured still-frame photos at periodic intervals. At the review session, the Commission provided Arzola a pencil with an eraser, a two-sided sheet containing a list of review rules, and a review sheet. His original score answer sheet and correct answer key were placed in an unlocked glass box on his desk. The answer sheet and answer key could not be accessed without opening the glass box.

On the date of the review, Arzola arrived late to his review session, but was still allowed to enter the room. At that time, there were at least two other candidates also reviewing their results. Arzola claimed he checked his answers against the correct answer key and noted he had three additional correct responses than his score sheet indicated. He then approached the room monitor, Sabrina Williams, a monitor in training,2 with his answer sheet in his hand, and advised her of the discrepancy. Upon seeing Arzola with the answer sheet removed from the glass case, Williams noticed eraser dust on one of the pages, observed Arzola's nervous state, and accused him of cheating by erasing and changing his original answers. Arzola denied the accusation. Williams did not observe Arzola reaching under the glass or changing any answers, but he had his answer sheet in his hand. Supervisors were called, and the video surveillance footage was reviewed. Arzola was informed that the video showed him changing his answers. However, as later disclosed, the images showed Arzola with his hand under the glass, but not changing his answers.

On October 22, 2009, Joseph DiNardo, supervisor of testing and operation, wrote to Arzola informing him that he was being disqualified from the Correction Sergeant exam because "our video surveillance records showed that while you were reviewing your examination, you removed your answer sheet from beneath the glass, erased and changed several of your original responses." DiNardo informed DOC about Arzola's actions and stated that the videotape "shows Arzola reaching over the desk, lifting the glass, removing his answer sheet from beneath the glass, and using a pencil to apparently make changes to his responses."

The DOC issued notices of disciplinary action against Arzola and, on January 25, 2010, conducted a Loudermill3 hearing, at which time Arzola was suspended without pay. Arzola and his attorney wrote to PBA Local 105 on January 28, 2010, requesting a grievance be filed regarding the timing of the charges. The procedures required grievances to be filed with the DOC within fifteen days of the disciplinary action, and counsel's letter was sent within this period. Arzola urged PBA Local 105 on two different occasions to file a grievance, which it eventually did on March 24, 2010. The DOC declined to consider the grievance because it had not been filed within fifteen days of January 20, 2010, the date the preliminary notice of disciplinary action was served on Arzola.

Arzola contends he supplied the DOC with a copy of DiNardo's disqualification letter on or about October 22, 2009. The charges were brought on January 19, 2010. On March 5, 2010, a departmental hearing was conducted and Arzola's employment was terminated. Arzola separately appealed his termination and his removal from the sergeant's list, arguing the determination that he cheated was not supported by the facts. The Commission granted a hearing and transferred the matter to the Office of Administrative Law (OAL) as a contested case. Both matters were consolidated in the OAL to be heard by a single ALJ.

Arzola moved for a summary decision,4 which was denied, and the ALJ heard testimony over the course of five days. Although Arzola had requested the video of the review session six months prior to the hearing, it was only provided to him seven days before the hearing date. In addition, Arzola was not provided with the requested sign-in sheets for the review session or the names of other persons at the review session, and, therefore, potential witnesses.

The video evidence before the ALJ did not show Arzola changing his answers, despite DiNardo's earlier assertions to that fact to both his superiors and the DOC. He stated, "the sensitivity of the scanner is such that it picks up the darkest mark on a given line." He noted that question 33 in Arzola's test had an erased answer which left a "darker residual" than the erasures on questions 1, 4 and 7, the answers which he asserted Arzola changed at the review session. The machine correctly noted the substitute answer for 33 and not the erasure mark. However, the machine, when the test was originally graded, did not note the substitute answers to 1, 4 and 7, which Arzola contended were filled in by him on the original test date and not at the review session. DiNardo stated: "Well, 1, 4, and 7 are much better erased" than the erasure for 33, which led him to conclude that Arzola had cheated by changing his answers to 1, 4, and 7 at the review session. DiNardo stated that "[t]he video backup [of Arzola erasing his answers] would have been

. . . nice in our support, but simply the scanning sensitivity and how the erasure marks were still fresh at the time was enough to disqualify." DiNardo acknowledged, however, that the erasure residue could have been deposited on the original test date.

The ALJ issued a written decision on August 13, 2010, denying Arzola's summary decision motion, upholding the DOC's decision to terminate his employment, and upholding the Commission's decision to remove him from the sergeant's list. In her findings of fact, the ALJ determined:

(1) Arzola was not told he was barred from lifting the glass and touching the sheets;

 

(2) Arzola did lift the glass and remove his answers;

 

(3) the video showed sixty-seven seconds between Arzola's reaching under the glass and the next frame that showed him standing next to the desk looking down at the paper;

 

(4) there was no picture of Arzola erasing his answers;

 

(5) the two other candidates in the review room would have been in a position to see him making any suspicious movements;

 

(6) the monitor's testimony about eraser dust and Arzola's apparent nervous state was credible;

 

(7) the Scantron was working properly as evidenced by its correct scoring of a smudged eraser mark on answer thirty-three of Arzola's test;

 

(8) Arzola's original Scantron results showed answers one, four, and seven to be incorrect, and the copy Arzola handed to the monitor at the review session showed these answers to be correct;

 

(9) the answers on Arzola's Scantron sheet showed evidence of very light eraser marks on questions one, four, and seven; and

 

(10) determining a raw score of 188 would move [Arzola] up the list of potential sergeants by fifty positions evincing a motive to cheat.

 

The ALJ determined "[e]valuating motive [and] opportunity, the credibility of Arzola's testimony concerning the answer change, and the physical evidence, I [find] that Arzola altered his answer sheet." The ALJ held

the OAL lacks jurisdiction to either parse the contents of the contract, or to determine whether dismissal of a charge where the officer was still being paid, if indeed part of the contract, could be negotiated or rather, fell within the exclusion for provisions inconsistent with other parts of State Law.

Addressing Arzola's position that his termination was untimely because the DOC's action occurred beyond the forty-five-day limitations period contained in the collective negotiation agreement (CNA)5 between PBA Local 105 and the State of New Jersey, which governed procedures for discipline of PBA Local 105's members, the ALJ analogized the forty-five-day limitation in the CNA with the limitation provisions set forth in N.J.S.A. 11:2-13 and N.J.A.C. 4A:2-2.5(d).

Article XII of the CNA states "all disciplinary charges shall be brought within [forty-five] days of the appointing authority reasonably becoming aware of the offense. In the absence of the institution of the charge within the [forty-five] day time period, the charge shall be considered dismissed." The ALJ considered Arzola's procedural challenges that the disciplinary charges resulting in his termination were filed beyond the period set forth in the collectively negotiated agreement between PBA Local 105 and the State, which required "all disciplinary charges shall be brought within 45 days of the appointing authority reasonably becoming aware of the offense."

Ultimately, the ALJ denied Arzola's motion for summary decision for failure to comply with the CNA. The ALJ also affirmed the Commission's order disqualifying Arzola from the Correction Sergeant examination, as well as the DOC's termination of Arzola's employment, and dismissed Arzola's appeal of the two actions.

II.

On appeal, Arzola argues: (1) the ALJ erred in finding that the OAL lacked jurisdiction to enforce the CNA's requirement that the employer bring charges within forty-five days of reasonably becoming aware of the offense; (2) the ALJ's decisions affirming Arzola's termination and disqualification were arbitrary, capricious and not supported by the evidence; (3) he was denied a fair hearing because the DOC failed to provide Arzola with discovery, including an opportunity to view the video, preserve material evidence and conduct an objective investigation; and (4) the ALJ should not have upheld the decision to terminate his employment in light of the totality of the circumstances because of the spoliation of evidence.

The DOC contends the only way Arzola may challenge its failure to bring charges within the appropriate time frame was through a grievance filed by PBA Local 105 within fifteen days of January 20, 2010, which was not done. The DOC also argues the CNA cannot conflict with State law, which does not strip the OAL of jurisdiction for failure to strictly follow the time limits for filing termination charges.

Established precedents guide our task on appeal. Appellate review of an administrative agency decision is limited. See In re Herrmann, 192 N.J. 19, 27 (2007). A strong presumption of reasonableness attaches to the Commission's decision. In re Carroll, 339 N.J. Super. 429, 437 (App. Div.), certif. denied, 170 N.J. 85 (2001). The burden is on Arzola to demonstrate grounds for reversal. McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 563 (App. Div. 2002); see also Bowden v. Bayside State Prison, 268 N.J. Super. 301, 304 (App. Div. 1993) (holding that "[t]he burden of showing the agency's action was arbitrary, unreasonable, or capricious rests upon the appellant"), certif. denied, 135 N.J. 469 (1994).

"Appellate courts ordinarily accord deference to final agency actions, reversing those actions if they are 'arbitrary, capricious or unreasonable or [if the action] is not supported by substantial credible evidence in the record as a whole.'" N.J. Soc'y for the Prev. of Cruelty to Animals v. N.J. Dep't of Agric., 196 N.J. 366, 384-85 (2008) (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980)) (alteration in original). Under the arbitrary, capricious, and unreasonable standard, our scope of review is guided by three major inquiries: (l) whether the agency's decision conforms with relevant law; (2) whether the decision is supported by substantial credible evidence in the record; and (3) whether in applying the law to the facts, the administrative agency clearly erred in reaching its conclusion. In re Stallworth, 208 N.J. 182, 194 (2011). When an agency decision satisfies such criteria, we accord substantial deference to the agency's fact-finding and legal conclusions, while acknowledging the agency's "'expertise and superior knowledge of a particular field.'" Circus Liquors, Inc. v. Governing Body of Middletown Twp., 199 N.J. 1, 10 (2009) (quoting Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992)). We will not substitute our own judgment for the agency's even though we might have reached a different conclusion. Stallworth, supra, 208 N.J. at 194; see also In re Taylor, 158 N.J. 644, 656 (1999) (discussing the narrow appellate standard of review for administrative matters).

Our deference to agency decisions "applies to the review of disciplinary sanctions as well." Herrmann, supra, 192 N.J. at 28. "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 (internal quotations and citations omitted). "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.

We note that an ALJ's factual findings and legal conclusions are not "binding upon [an] agency head, unless otherwise provided by statute." N.J.A.C. 1:1-18.1(c). Accordingly, an agency head reviews an ALJ's decision "de novo

. . . based on the record" before the ALJ. See In re Parlow, 192 N.J. Super. 247, 248 (App. Div. 1983). However, "[a]n agency head reviewing an ALJ's credibility findings relating to a lay witness may not reject or modify these findings unless the agency head explains why the ALJ's findings are arbitrary or not supported by the record." S.D. v. Div. of Med. Assistance & Health Servs., 349 N.J. Super. 480, 485 (App. Div. 2002); see also N.J.S.A. 52:14B-10(c) (An agency head may only reject the ALJ's credibility findings after it determines "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." In doing so, "the agency head shall state with particularity the reasons for rejecting the findings and shall make new or modified findings supported by sufficient, competent, and credible evidence in the record.").

On appeal of a grant or denial of summary decision, we use the same standard of review as the ALJ. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). It is the same standard we apply when reviewing a summary judgment determination, and first decides whether there was a genuine issue of fact. See Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). If there was no genuine issue of fact, this court then decides whether the lower court's ruling on the law was correct. Walker v. Alt. Chrysler Plymouth, 216 N.J. Super. 255, 258 (App. Div. 1987). No deference is given to an ALJ's legal conclusions, as we review such conclusions de novo. City of Atl. City v. Trupos, 201 N.J. 447, 463 (2010); Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 382 (2010).

With these principles in mind, we turn to Arzola's contentions.

A.

Arzola argues on appeal that his motion for summary decision was improperly dismissed as the OAL had jurisdiction to enforce the contractual terms of the CNA with the DOC and dismiss the charges under the forty-five day limitation period set forth in the CNA. We agree.

The ALJ relied upon Goodman v. Department of Corrections, 367 N.J. Super. 591 (2004), and McElwee v. Borough of Fieldsboro, 400 N.J. Super. 388 (App. Div. 2008). In Goodman we held:

Even where the applicable statute provides for dismissal of disciplinary charges if a departmental hearing is not conducted within thirty days, we have not construed this requirement as jurisdictional and have ordered dismissal of disciplinary charges based on a failure to conduct a hearing within that period only if such a disposition was warranted under all the circumstances.

 

[Supra, 367 N.J. Super. at 596.]

In that matter, we noted the appellant did not suffer any prejudice "as a result of the postponement[.]" Id. at 597. However, in King v. Ryan, 262 N.J. Super. 401, 411 (App. Div.), certif. denied, 134 N.J. 474 (1993), we held an eight month delay of the "mandatory statutory thirty-day provision of N.J.S.A. 40A:14-149" resulted in an "inexcusable and egregious disregard of the officer's rights."

In Aristizibal v. City of Atlantic City, 380 N.J. Super. 405 (Law Div. 2005), police officers brought an action to enjoin the city from proceeding with disciplinary charges arising out of their alleged participation in a "sick-out" which had occurred months earlier. Id. at 408-09. The Law Division found that the city failed to file the charges until seventy-two days after the receipt of valid reasons to initiate disciplinary proceedings against the police officers. Id. at 433. As a result, the court enjoined the city from proceeding with disciplinary hearings. Id. at 435. The Law Division noted that "barring extraordinary circumstances . . . [an] investigation should commence promptly after the occurrence of events which may warrant disciplinary action." Id. at 433-34. The court ultimately made a factual determination that there was no "justifiable basis" to delay the commencement of charges filed 120 days after the events occurred when there were valid reasons to bring disciplinary charges much earlier. Id. at 434.

Here, the CNA set forth a forty-five-day limitation period to bring a disciplinary charge and if the charge was not brought within this time period "the charge shall be dismissed." The DOC was notified on October 22, 2009, of Arzola's alleged offense. However, the DOC did not file its complaint until January 19, 2010, eighty-nine days after it received notice of the alleged offense.

The Commission and the DOC assert that "courts have routinely held that the Superior Court is the proper forum for addressing disputes over the contents of contracts[.]" However, they do not deny the existence of the CNA, its terms, or even its application. Instead, they argue the ALJ was correct in concluding that OAL lacked jurisdiction. However, the facts in this matter reflect Arzola's due process rights were adversely impacted by the delayed filing of disciplinary charges.

The "essential components" of due process are adequate notice, opportunity to be heard, and the availability of appropriate review. State, Dep't of Cmty. Affairs v. Wertheimer, 177 N.J. Super. 595, 599 (App. Div. 1980) (citing In re Suspension of Heller, 73 N.J. 292, 310 (1977)). The

mere delay in the filing of charges, without more, is not sufficient to justify the conclusion that there has been an intrusion of the due process rights of the employee. It must be shown that the delay did in fact prejudice the employee in meeting and defending against the charges.

 

[Sabia v. Elizabeth, 132 N.J. Super. 6, 8 (App. Div. 1974), certif. denied, 67 N.J. 97 (1975).]

 

Here, Arzola suffered prejudice as a result of the delay. During this extended filing period, key evidence, the sign-in sheet and the information concerning scheduling of other candidates was lost, which may have led to testimony supporting Arzola's position. There were other candidates in the room at the time of Arzola's conduct, and none of them reported any suspicious activity. In a December 7, 2009 letter, Arzola's attorney requested the videotape in order to call as witnesses the room monitor and any other persons present. However, the Commission "misplaced the sign-in sheet for the afternoon review, and none of those testifying could identify the other candidates in the photos." The DOC's failure to bring disciplinary charges within the forty-five-day limitation period substantially impaired Arzola's defense. The importance of other witnesses to corroborate his story would have been crucial, as there were no witnesses or video evidence showing him changing his answers.

The ALJ should have enforced the forty-five-day filing limitation and dismissed the DOC's disciplinary charge because the delay substantially prejudiced Arzola. During the delay the Commission lost what may have been exculpatory evidence. Additionally, the charge of cheating was based on DiNardo's letter, which unequivocally asserted that the video showed Arzola changing his answers. Had the disciplinary charges been brought within the contractual forty-five day period, and had the DOC produced both the video and DiNardo, Arzola could have confronted the evidence against him and perhaps produced exculpatory evidence.

Arzola had a due process right to confront and cross-examine adverse witnesses. See Limongelli v. N.J. State Bd. of Dentistry, 137 N.J. 317, 329 (1993); Dolan v. City of E. Orange, 287 N.J. Super. 136, 145 (App. Div. 1996); Paco v. Am. Leather Mfg. Co., 213 N.J. Super. 90, 96 (App. Div. 1986). The violation of the forty-five-day CNA period resulted in a violation of Arzola's due process right to confront and cross-examine adverse witnesses and to produce evidence. Accordingly, we vacate the disciplinary conviction and order Arzola's restoration to his position.

B.

Arzola argues that the Commission's decision to remove him from the sergeant's list was arbitrary, unreasonable, or capricious and should be reversed. We disagree.

N.J.A.C. 4A:4-4.7(a)(1) provides that a person's name may be removed from the eligible list for a civil service position for any cause for disqualification listed in N.J.A.C. 4A:4-6.1. A cause for disqualification listed in N.J.A.C. 4A:4-6.1(a)(6) is: "Has made a false statement of any material fact or attempted any deception or fraud in any part of the selection or appointment process."

Arzola has the burden of proof in challenging his disqualification. See N.J.A.C. 4A:4-6.3(b) ("The appellant shall have the burden of proof, except for medical or psychological disqualification appeals, where the appointing authority shall have the burden of proof."). The Commission's factual findings that the Scantron was working properly as evidenced by its correct scoring of a smudged eraser mark on answer 33 of Arzola's test; Arzola's original Scantron results showed answers 1, 4 and 7 to be incorrect, and the copy Arzola handed to the monitor at the review session showed these answers to be correct; the answers on Arzola's Scantron sheet showed evidence of very light eraser marks on questions 1, 4 and 7; and the monitor's testimony, credited by the ALJ, about erasure dust on the answer sheet when presented to her by Arzola and that he appeared nervous, provide substantial credible evidence in the record to support its decision to disqualify Arzola. We see no reason to disturb this decision.

Affirmed in part, and reversed in part.

1 The Scantron machine allows for mechanical automatic scoring of test results.

2 Lenore Guerra, the monitor in charge of the room, was not present.

3 Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542, 105 S. Ct. 1487, 1493, 84 L. Ed. 2d 494, 503-04 (1985) (requiring the need for some form of predetermination hearings in order to balance the private interests in retaining employment, erroneous terminations, expeditious removal of unsatisfactory employees, and the avoidance of unnecessary administrative burdens).

4 A motion for summary decision is akin to a motion for summary judgment, as N.J.A.C. 1:1-12.5 provides that a party may move for a summary decision upon all or any of the substantive issues after a case is determined to be contested, and

The Decision sought may be rendered if the papers and discovery which have been filed, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to prevail as a matter of law.

 

[N.J.A.C. 1:1-12.5(b).]

N.J.A.C. 1:1 12.5 is simply a procedural mechanism for determining whether a proposed administrative action turns on disputed and material adjudicatory facts. Contini v. Bd. of Educ. of Newark, 286 N.J. Super. 106, 120 (App. Div. 1995), certif. denied, 145 N.J. 372 (1996).

5Generally, "[i]n public labor relations in New Jersey, courts use the terms 'collective negotiation' and 'collective negotiations agreements' rather than 'collective bargaining' and 'collective bargaining agreements,'" Troy v. Rutgers, 168 N.J. 354, 359, n.1 (2001) (citing N.J. Tpk. Employees Union v. N.J. Tpk. Auth., 64 N.J. 579, 581 (1974)), a term found in the Labor Management Relations Act, 29 U.S.C.A. 141 to 187. In our opinion, we follow this nomenclature notwithstanding the parties' reference to their agreement as a "collective bargaining agreement."