IN THE MATTER OF DONNA JACKSON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

IN THE MATTER OF DONNA JACKSON,

HUDSON COUNTY.

_______________________________

November 1, 2013

Argued October 23, 2013 Decided

Before Judges Fuentes and Haas.

On appeal from the New Jersey Civil Service Commission, Docket No. 2012-1851.

Jeffrey G. Garrigan argued the cause for appellant Donna Jackson (Cammarata, Nulty & Garrigan, LLC, attorneys; Mr. Garrigan, on the brief).

Robert E. Finn argued the cause for respondent County of Hudson (Chasan Leyner & Lamparello, attorneys; Cindy Nan Vogelman, of counsel and on the brief; Mr. Finn on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent New Jersey Civil Service Commission (Todd A. Wigder, Deputy Attorney General, on the statement in lieu of brief).

PER CURIAM

Appellant Donna Jackson appeals from the final administrative decision of the Civil Service Commission (Commission) finding her guilty of violating a rule of employment and imposing a ten-day suspension. We reverse.

Since 2003, Jackson has been employed as a corrections officer by Hudson County (the County). On March 19, 2010, the County served Jackson with six Preliminary Notices of Disciplinary Action, only one of which is the subject of this appeal.1 That notice sought to remove Jackson from employment on charges of "insubordination; conduct unbecoming a public employee; neglect of duty; incompetency, inefficiency and failure to perform duties; and other sufficient cause" relating to the suspension of her driver's license on February 19, 2010.2 The specification for this charge stated:

ON MARCH 17, 2010, HUDSON COUNTY DEPT. OF CORRECTIONS (HCDOC) PERSONNEL UNIT WAS INFORMED THAT [JACKSON'S] DRIVER[']S LICENSE WAS SUSPENDED. PERSONNEL OFFICER, ANTHONY STALTARI, REQUESTED THAT [SIC] INTERNAL AFFAIRS UNIT OF THE ABOVE NOTED INFORMATION. ON MARCH 18, 2010, IAD INV. PARRISH OBTAINED JACKSON'S N.J. DRIVER'S ABSTRACT WHICH REVIEWED [SIC] THAT JACKSON'S DRIVER[']S LICENSE HAS BEEN SUSPENDED ON OR ABOUT FEBRUARY 19, 2010. JACKSON[] FAILED TO NOTIFY HCDOC IAD OR UNIT MANAGER THAT HER DRIVER[']S LICENSE WAS SUSPENDED.

Jackson disputed the charge and asserted she had not been aware that her license had been suspended on February 19, 2010. When the HCDOC's Internal Affairs Division (IAD) advised her of the suspension, she immediately rectified the matter by paying a parking ticket which she did not know had been issued to her. After a departmental hearing, however, the charge was upheld by a County hearing officer and Jackson appealed to the Commission, which transmitted the case to the Office of Administrative Law (OAL).

At the OAL hearing, County Personnel Officer Anthony Staltari testified Jackson came to the office on March 17, 2010 to pick up some paperwork. After she left, Staltari looked out his window and saw Jackson getting into a car driven by another officer. Because Jackson had previously been disciplined for driving without a valid license, seeing her accept a ride from a fellow officer caused Staltari to call IAD and ask that Jackson's driver's abstract be obtained.

The abstract revealed that Jackson's license had been suspended on February 19, 2010 due to an unpaid parking ticket. Staltari testified that a corrections officer is required to notify the County if his or her driver's license is suspended. Staltari checked with IAD and it had "no records of [Jackson] notifying Internal Affairs and neither did her Unit Manager." Therefore, Jackson was charged with "fail[ing] to notify HCDOC IAD or unit manager that her driver['s] license was suspended." Staltari admitted he had no record that indicated Jackson was aware of the license suspension prior to receiving the notice of disciplinary action and he did not contact the Division of Motor Vehicles (DMV) to verify that a suspension notice was ever sent to her.

On cross-examination, Jackson's attorney asked Staltari a series of questions concerning the precise nature of the charge the County had brought concerning the driver's license:

Q. . . . So, the policy that you have and what she's charged with - - she's charged with failing to notify the County that her license was suspended. Correct?

A. That's correct.

Q. And in order to notify the County, is it fair to say that she would need to know that her license was suspended? Correct?

A. Yes.

Q. I mean, because if your license is suspended unless they notify you, you're not going to know that, correct, you don't work at the DMV?

A. That's correct.

Q. Okay. And we don't have any document or any information whatsoever that Donna Jackson knew on February 19th, 20th, March 17th or any of those dates in between, that she knew that her license was suspended. Is that correct?

A. Not to my knowledge, no.

Q. Okay. And as far as we know, that when she learned her license was suspended by getting this Disciplinary Notice, she immediately reinstated that license. Correct?

A. Yes.

Jackson's attorney then asked the critical follow-up question:

Q. And it's only insubordination as being charged, insubordination and neglect of duty, if she fails to notify the County that her license was suspended and knowing that it was suspended. Correct?

A. That's correct.

Jackson testified she did not become aware that her license was suspended until she received the notice of disciplinary action. She had never received any notice from the DMV that her license had been suspended. When she learned of the suspension, Jackson immediately went to the DMV and was advised that the suspension had been imposed because of an unpaid parking ticket that had been written in a New Jersey Transit parking lot. Jackson testified she was not aware that she had received the ticket and surmised that it must have fallen off her car. Jackson paid the parking fine that day and her license was reinstated.

In his Initial Decision, the Administrative Law Judge (ALJ) concluded that Jackson was guilty of all of the charges, including the one related to the suspension of her driver's license. Upon review, however, the Commissioner remanded the matter because the ALJ failed to make any credibility determinations or findings of fact to support his conclusion.3 In addition, the Commission noted that the case "raise[d] serious questions regarding . . . whether [Jackson's] knowledge of the suspension of her driver's license was necessary in order to sustain the charges related to that suspension."

In a new Initial Decision, the ALJ concluded that the County had failed to prove any of the charges against Jackson. After observing her demeanor on the witness stand, the ALJ found that Jackson was "consistent and candid in [her] testimony." Based upon this credibility determination, the ALJ found that Jackson "was not aware that her driver's license was suspended on February 19, 2010." He further found that the County "did not prove that Jackson should have been aware of the suspension as a result of notice from the Motor Vehicle Commission or Court Order. Absent such proof, this charge . . . cannot be sustained."

The County filed exceptions and, in a November 3, 2011 final decision, the Commission reversed the ALJ's determination. The Commission "agree[d] that [Jackson] was not guilty of failing to notify the [County] of the suspension of her driver's license, since she was unaware that it had been suspended." Despite this conclusion, however, the Commission ruled that "the license suspension, in and of itself, is sufficient to uphold the charges" because a corrections officer must possess a valid driver's license. Thus, even though Jackson had no knowledge whatsoever of the suspension or the parking ticket that led to it, the Commission imposed a ten-day suspension without pay. This appeal followed.

On appeal, Jackson contends the Commission's decision is arbitrary, capricious, and unreasonable, because it sustained the charge even though there was no evidence in the record to support a finding that she knew her license was suspended or that she had received the parking ticket that led to the suspension. We agree.

Established precedents guide our task on appeal. Our scope of review of an administrative agency's final determination is limited. 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 upon the appellant 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).

To that end, we will "not disturb an administrative agency's determinations or findings unless there is a clear showing that (1) the agency did not follow the law; (2) the decision was arbitrary, capricious, or unreasonable; or (3) the decision was not supported by substantial evidence." In re Application of Virtua-West Jersey Hosp. Voorhees for a Certificate of Need, 194 N.J. 413, 422 (2008); see also Circus Liquors, Inc. v. Governing Body of Middletown Twp., 199 N.J. 1, 9-10 (2009). We are not, however, in any way "bound by the agency's interpretation of a statute or its determination of a strictly legal issue." Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85, 93 (1973).

Moreover, if our review of the record satisfies us that the agency's finding is clearly mistaken or erroneous, the decision is not entitled to judicial deference and must be set aside. L.M. v. State of N.J., Div. of Med. Assist. & Health Servs., 140 N.J. 480, 490 (1995). We may not simply "rubber-stamp" an agency's decision. In re Taylor, 158 N.J. 644, 657 (1999).

Applying these principles to the specific circumstances of this case, we are constrained to conclude that the Commission's decision to sanction the County's discipline of an employee, who had no knowledge that she had committed an infraction of her employer's rules, was arbitrary, capricious, and unreasonable. Initially, we note that Jackson was not specifically charged with the mere failure to possess a valid driver's license. Instead, the March 19, 2010 specification stated that Jackson was charged with "fail[ing] to notify HCDOC IAD or unit manager that her driver['s] license was suspended." That was also the charge that was specified on page three of the departmental hearing officer's May 4, 2010 decision. Most importantly, Staltari confirmed at the OAL hearing that "it's only insubordination as being charged, insubordination and neglect of duty, if [Jackson] fail[ed] to notify the County that her license was suspended and knowing that it was suspended."

The ALJ found that Jackson was not aware that her license had been suspended until she was charged with failing to notify the County of the suspension. The Commission accepted this credibility determination and found that Jackson was "not guilty of failing to notify the [County] of the suspension of her driver's license, since she was unaware that it had been suspended."

Although Staltari had conceded that the failing to report the suspension was the "only" basis for the charge at issue at the hearing, the Commission nevertheless found Jackson guilty of a different charge, namely, that the suspension of her driver's license, "in and of itself," constituted a violation of the County's rules. However, "[i]t is elementary that an employee cannot legally be tried or found guilty on charges of which he [or she] has not been given plain notice by the appointing authority." West New York v. Bock, 38 N.J. 500, 522 (1962). "'Plain notice' is the standard to be applied when considering the adequacy of disciplinary charges filed against public employees. . . . These principles emanate from the concept of affording due process and fairness to proceedings which impact so significantly on an employee." Pepe v. Twp. of Springfield, 337 N.J. Super. 94, 97 (App. Div. 2001). The Commission's finding that Jackson should be disciplined for reasons not clearly set forth in the specification for the charge, or in Staltari's testimony confirming that the failure to notify her superiors was the "only" basis for the charge, does violence to these principles and requires the reversal of the Commission's decision.

However, our determination that the Commission's decision was arbitrary, capricious, and unreasonable would not change even if the County's specification could be read broadly to include a charge that Jackson should be disciplined merely because her license was suspended. As noted above, there is absolutely nothing in the record to support a finding that Jackson knew her license had been suspended or even that she had received the parking ticket that caused the suspension. Under those circumstances, it is patently unfair to punish her for something she was not aware of and which she could not prevent.

The County argues that it is the officer's responsibility to ensure that his or her driver's license is always in good standing. However, that is exactly what Jackson did here. Once she was advised of the suspension by IAD, she immediately went to DMV, learned of the ticket, paid the ticket, and had her license reinstated. Because she had no prior knowledge of the suspension or the ticket, she could not have done anything more than that to comply with the County's rule.

Moreover, no witness from the County testified that an employee must be charged the moment it learns the employee's license has been suspended, especially if the employee is not aware of the suspension. From a fair reading of Staltari's testimony on cross-examination, it is clear that an employee, who did not know of a license suspension, should not be disciplined if he or she failed to notify his or her superiors of it. It is therefore inconceivable that the same employee should nevertheless be charged based merely upon the fact the suspension was imposed without their knowledge.

The County also argues that, because Jackson pled guilty to, and paid, the parking ticket, she acknowledged her license was "properly suspended" and, therefore, that she had violated the County's rule. We disagree. Until the day she was advised of the suspension, Jackson believed her license was valid. Once she learned of the suspension, she rectified it. Had she done otherwise, she would have clearly been in violation of the County's rule because she would have known she had a suspended license. Jackson cannot now be punished for taking immediate steps to comply with the County's rule by having her license restored.

The County also contends that Jackson had previously been disciplined for driving while her license was suspended and, therefore, should have known that she had to maintain a valid driver's license. However, Jackson does not dispute that she was required to have a valid license or that she had previously violated this rule when she worked while knowing that her license was suspended. Here, however, Jackson had no knowledge of the license suspension. Without such knowledge, she could not, in keeping with basic due process principles, be found guilty of violating the County's rule.

In sum, we will only affirm an administrative agency's action if we are "satisfied after [our] review that the evidence and the inferences to be drawn therefrom support the agency head's decision . . . ." Clowes v. Terminix Int'l Inc., 109 N.J. 575, 588 (1988).

But if the appellate tribunal is thoroughly satisfied that the finding is clearly a mistaken one and so plainly unwarranted that the interests of justice demand intervention and correction . . . then, and only then, it should appraise the record as if it were deciding the matter at inception and make its own findings and conclusions. While this feeling of "wrongness" is difficult to define, . . . it can well be said that that which must exist in the reviewing mind is a definite conviction that the [agency] went so wide of the mark, a mistake must have been made. This sense of "wrongness" can arise in numerous ways - - from manifest lack of inherently credible evidence to support the finding, obvious overlooking or under-evaluation of crucial evidence, a clearly unjust result, and many others.

[State v. Johnson, 42 N.J. 146, 162 (1964) (internal citations omitted).]

For the reasons stated, we are "thoroughly satisfied" that the Commission's decision is "clearly a mistaken one and so plainly unwarranted that the interests of justice demand intervention and correction." Ibid. No legitimate purpose is served, and a great disservice is done to the interests of justice, to punish an employee for a violation of a rule that they had no knowledge had been violated.

Therefore, we conclude that the Commission's decision is arbitrary, capricious, and unreasonable and we reverse that decision and vacate the penalty imposed. We remand to the Commission for a calculation of back pay due to Jackson and for consideration of her request for counsel fees. We do not retain jurisdiction.

1 The first five notices charged Jackson with excessive absenteeism based upon the County's claim that she failed to follow its procedures for taking medical and family leave. In its final decision, the Commission found that Jackson had provided the appropriate paperwork to request leave to care for her sick child and dismissed all five charges relating to her absences.

2 County Custody Staff Rule and Regulation 2.11 states that all correction department "custody staff members are required to possess a current and valid State of New Jersey Driver License."

3 The Commission ordered that a remand was also necessary because neither party had called a particular "key witness" to testify about the County's medical leave procedures. That witness was the only person who testified at the remand hearing. No further testimony was provided concerning the charge related to the license suspension.