IN THE MATTER OF NAFAEESA MILLER

NOT FOR PUBLICATION WITHOUT THE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

NAFAEESA MILLER.

February 10, 2014

Argued August 26, 2013 Decided

Before Judges Alvarez and Maven.

On appeal from the Civil Service Commission, Department of Labor and Workforce Development, Docket No. 2010-3497.

Daniel M. Rosenberg argued the cause for appellant Nafaeesa Miller (Law Office of Mark W. Catanzaro, attorneys; Mr. Rosenberg, on the briefs).

Katheryn Eisenmann argued the cause for respondent Burlington County Department of Corrections (Capehart & Scatchard, P.A., attorneys; Carmen Saginario, Jr., of counsel; Laurel Peltzman, on the brief).

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

The opinion of the court was delivered by

MAVEN, J.A.D.

Petitioner Nafaeesa Miller appeals from an October 3, 2012 final administrative action of the Civil Service Commission (Commission) imposing ten-working-day and twenty-working-day suspensions on her employment as a corrections officer at the Burlington County Correctional Facility (County). We affirm.

The following facts are not in dispute. Miller was hired as a correction officer in December 2001. The County instituted a Time and Attendance Policy (Policy) in January 2004. Miller received notice of the Policy on January 15, 2004. The Policy was revised on January 1, 20091 to eliminate the grace period. Revised Section 1080 of the Policy therefore reads, in pertinent part:

Every three (3) unexcused lateness (between 1 to 15 minutes late) and/or violations of the time clock policy in a thirty (30) day period shall be considered an offense. There shall no longer be a grace period of 1-3 minutes late . . . . Any one unexcused lateness greater than fifteen (15) minutes but less than one hour shall be considered an offense.

An employee's failure to clock in and out at their regularly scheduled start and finish times subjects them to the lateness policy. Violations carry a progressive penalty range, with a ten-day suspension and a twenty-day suspension for a sixth and seventh offense, respectively.

The County issued two Preliminary Notices of Disciplinary Action (PNDA) based on violations of N.J.A.C. 4A:2-2.3(a)(4) (chronic or excessive absenteeism or lateness) and N.J.A.C. 4A:2-2.3(a)(11) (other sufficient cause including violations of section 1080 Burlington County Corrections Department Time and Attendance Policy). The County issued the first PDNA on December 1, 2009, charging Miller with being seventeen minutes late on November 20, 2009. The second PNDA issued on February 19, 2010, consisting of three violations occurring within a thirty-day period. The County charged Miller with being one minute late on January 29, 2010, two minutes late on February 12, 2010, and failing to clock in on February 16, 2010. Following a departmental hearing, the County suspended Miller for the charges.

Miller appealed, and the matter was transmitted to the Office of Administrative Law for a contested hearing. The Administrative Law Judge (ALJ) held hearings on January 24, 2011 and August 24, 2011, in which he heard testimony from five witnesses: Captain Mildred Scholtz, the County's Correction Captain; Wilhelmina Ellis, Principal Payroll Clerk; Warden Ronald Cox; Corrections Officer Robert Swenson, President of PBA Local 249; and Miller.

We briefly summarize the testimony and evidence presented at the administrative hearing. According to Scholtz, Miller's November 20, 2010 time card report showed that she swiped in at 7:17 a.m. The County's shift report and time clock violation notice also indicated that Miller was seventeen minutes late on November 20, 2009.

Ellis was assigned to monitor the accuracy of the prison time clock by comparing the time on her computer - which regulated the time clock - with the time on the "us.gov" website. Ellis prepared and submitted weekly time clock reports2 to indicate the time she synchronized, meaning "checked," the clock, whether the clock matched the website, and whether any problems with the clock had been reported. If the time on the clock did not match the website, Ellis would send an email to administration noting the extent of the discrepancy, and notify the IT department to follow-up. Because there were other employees who checked the clocks, Ellis's time clock reports did not reflect every instance when the clock was inaccurate or synchronized. According to Ellis, any problems with the clocks were sporadic prior to October 2010 when the jail experienced a major power failure.

Ellis neither testified, nor provided a time clock report with respect to the clock used by Miller on November 20, 2009. As for the 2010 charges, the January report indicated that the clock was synchronized four times in January 2010, including January 29, 2010, at 3:44 p.m.; it was on time each week, and no problems had been reported during the month. In February 2010, the clock was on time when checked on February 5; however, the clock was not checked on February 12 or 15 because of holidays. The clock was out of time by one minute and three seconds on February 16, 2010.

Miller testified she had no specific recollection of November 20, 2009, January 29, 2010 or February 12, 2010. However, she explained that she had been on maternity leave between June and September 2009, and had difficulty readjusting to her 7:00 a.m. to 3:00 p.m. work schedule upon her return to work. On November 20, she did not notify anyone at work that she was late due to an emergency. Miller did not offer any testimony regarding the 2010 violations. Miller stated she was aware of the time clock inaccuracy problems, and she would either set her watch or her cell phone to the time clock to ensure her timeliness.

Warden Cox explained that an employee is penalized if they incur three offenses, including tardiness or failure to swipe in or out within thirty days. He testified that Miller was one minute late on January 29, two minutes late on February 12, and failed to swipe in on February 16.3 Miller had five prior offenses4 at the time the PDNAs were filed; therefore, she was subject to ten- and twenty-day suspensions on these charges. Cox stated he became aware of time clock problems following a power outage in October 2010 when the clocks ran three minutes "off." He suspended all disciplinary actions against any employee who clocked in less than fifteen minutes late, while he reviewed the situation. Before October 2010, he was aware of approximately one time clock complaint per month.

According to Swenson, officers began complaining about the clock's inaccuracy in January 2010. At that time, he began to check the time clock against his own watch, although he could not recall whether he did so in January or February 2010.

The ALJ found Swenson more credible than Ellis regarding time clock problems in January 2010, and concluded that during the relevant time, between November 20, 2009 and February 12, 2010, the County's time clock malfunctioned by fluctuating and inconsistently maintaining accurate time. The ALJ reasoned that:

the history of problems with the time clock; the lack of consistent, thorough and reliable timekeeping documentation; and lack of a formal policy regarding the time clock system combine to severely undermine the persuasiveness of the [County's] proofs. Beyond that, the [County] did not utilize a formal or consistent policy regarding notification of the timekeeping policy.

As to the specific charges against Miller, the ALJ found, "[t]he same insufficient proof applies across the board because there is more than ample doubt as to the accuracy, within three to four minutes, and reliability of the timekeeping system during that time." The ALJ issued an Initial Decision finding the County did not meet its burden of proof with regard to the charge of chronic and excessive lateness by Miller because there was a history of problems with the accuracy of the time clock. The ALJ therefore recommended that the charges be dismissed and the suspensions reversed.

Each party filed exceptions to the Initial Decision. Following its de novo review, the Commission issued its final administrative action on October 3, 2012, which accepted and adopted the ALJ's findings of fact, but rejected the recommendation to reverse the suspensions. It found that the evidence supported the charge against Miller. The Commission emphasized that "attendance at work is the most basic duty of an employee, especially in the area of public safety, and employees who cannot maintain an acceptable attendance record can expect to be subject to disciplinary action, up to and including removal."

The Commission also found ample support in the record to uphold the ten- and twenty-working day suspensions. Thereafter, the Commission affirmed the County suspensions and dismissed Miller's administrative appeal.

On appeal, Miller argues that the final agency action fails to give deference to the findings of the ALJ, and is not supported by the record evidence in light of the inaccuracy of the time clock on the relevant days. We disagree and affirm substantially for the reasons expressed by the Commission in its October 3, 2012 final decision. We add the following brief comments.

Our review of an agency's final decision is limited. In re Stallworth, 208 N.J. 182, 194 (2011). We "defer to an agency's expertise and superior knowledge of a particular field," Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992), and uphold its decision "unless there is a clear showing that it is arbitrary, capricious, or unreasonable, or that it lacks fair support in the record." In re Herrmann, 192 N.J. 19, 27-28 (2007).

We ordinarily recognize that an agency's specialized expertise renders it particularly well-equipped to understand the issues and enact the appropriate regulations pertaining to the technical matters within its area. See In re Stormwater Mgmt. Rules, 384 N.J. Super. 451, 465 (App. Div.), certif. denied, 188 N.J. 489 (2006). Accordingly, as a general proposition we accord administrative agency action a strong presumption of reasonableness, Aqua Beach Condo. Ass'n v. Dep't of Cmty. Affairs, 186 N.J. 5, 16 (2006), and we afford substantial deference to an agency's interpretation of the statute it is charged with enforcing, R & R Mktg., L.L.C. v. Brown-Forman Corp., 158 N.J. 170, 175 (1999).

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). The Commission may reject or modify legal conclusions as well as fact findings unrelated to witness credibility, but must state its reasons for doing so. N.J.S.A. 52:14B-10(c); N.J.A.C. 1:1-18.6(b). However, rejection or modification of any finding of fact as to issues of credibility of lay witness testimony is impermissible unless the Commission first determines from a review of a record that the findings are arbitrary, capricious or unreasonable, or are not supported by sufficient, competent and credible evidence. N.J.A.C. 52:14B-10(c); N.J.S.A. 1:1-18.6(c). The Commission must then specify the reasons for rejecting any findings and point to evidence supporting its new or modified findings. N.J.S.A. 52:14B-10(c); see also Messick v. Bd. of Review, 420 N.J. Super. 321, 326 (App. Div. 2011)(stating that "the agency head, in making findings of fact at variance with the administrative law judge, [must] state with particularity its reasons for rejecting the findings.").

Here, it is clear the Commission reviewed the ALJ's findings and the record prior to concluding that credible evidence in the record supported the charges and imposition of sanctions. In particular, the Commission noted that Miller had stipulated to the November 20, 2009 shift report and time card report, both of which showed that she arrived seventeen minutes late. Miller also did not dispute her lateness during her testimony. With respect to the 2010 charges, the Commission determined there was no evidence that the time clock was not accurate on January 29 and February 12, and found that Miller did not dispute that she failed to clock in on February 16, 2010. We conclude these determinations are neither arbitrary, capricious, nor unreasonable. As such, we are satisfied that sufficient credible evidence exists to support the Commission's decision finding Miller guilty of the charges.

As to the sanction imposed, we accord similar deference to an agency's disciplinary measures. Herrmann, supra, 192 N.J. at 34-35. In exercising its authority to modify a sanction, "the [c]ourt can do so only when necessary to bring the agency's action into conformity with its delegated authority. The [c]ourt has no power to act independently as an administrative tribunal or to substitute its judgment for that of the agency." In re Revocation of the License of Polk, 90 N.J. 550, 578 (1982). "[T]he test in reviewing administrative sanctions is whether such punishment is so disproportionate to the offense, in the light of all the circumstances, as to be shocking to one's sense of fairness." Ibid. (internal quotation marks omitted).

Here, the Commission noted that in eight years of employment, Miller had a significant history of violations and sanctions, including twenty-nine suspensions of progressive durations. We are satisfied that substantial evidence in the record supports the imposition of ten- and twenty-working-day suspensions. In meting out the penalty, the Commission properly considered the nature of the offense, the concept of progressive discipline, and Miller's prior record. Given the higher standard of conduct required of corrections officers, we discern no abuse of agency discretion in imposing the suspensions.

1 Initially, the County did not enforce the revised policy due to a challenge by the officers' union, Policemen Benevolent Association (PBA) Local 249. On December 7, 2009, Warden Cox issued a memo to all corrections officers imposing strict enforcement of the Policy. Miller received that memo on or about December 24, 2009.

2 Numerous time clock reports dating from 2007 through 2010 were entered into evidence.

3 Miller does not dispute that she failed to clock in on February 16, 2010.

4
 

The parties agreed that Miller's disciplinary history was not material to a determination of guilt of the charges; however as to the penalty upon any finding of guilt, the November 2009 violation would be Miller's sixth offense.