IN THE MATTER OF ROBERT RUFFIN

NOT FOR PUBLICATION WITHOUT THE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

ROBERT RUFFIN.

________________________________________________________________

April 28, 2014

Argued September 25, 2013 Decided

Before Judges Sapp-Peterson and Maven.

On appeal from the New Jersey Civil Service Commission, Docket No. 2011-1702.

Geoffrey B. Gompers argued the cause for appellant Robert Ruffin (Geoffrey B. Gompers & Associates, attorneys; Mr. Gompers, on the briefs).

Sally Ann Fields, Senior Deputy Attorney General, argued the cause for respondent Department of Human Services, Ancora Psychiatric Hospital (John J. Hoffman, Acting Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Ms. Fields, on the brief).

PER CURIAM

Appellant Robert Ruffin appeals from a decision of the New Jersey Civil Service Commission (Commission) finding that it lacked jurisdiction over Ruffin's appeal from a suspension imposed by respondent Department of Human Services (DHS), Ruffin's employer. We affirm, concluding Ruffin's suspension, reduced to five days prior to his appeal hearing, divested the Commission of jurisdiction.

In March 2009, Ruffin was employed by Ancora Psychiatric Hospital (Ancora)1 as an Institutional Trade Instructor. Ruffin also served as the president of Council 71, Local 2218 of the American Federation of State, County, and Municipal Employees (AFSCME). On October 18, 2010, DHS issued a Final Notice of Disciplinary Action against Ruffin charging him with conduct unbecoming a public employee, and imposing a fifteen-day work suspension. On October 22, 2010, Ruffin appealed the suspension to the Commission. Shortly thereafter, the Commission transmitted the appeal to the Office of Administrative Law (OAL).

On December 1, 2010, Ruffin, individually and as president of AFSCME Local 2218, filed an unfair labor practice charge with the Public Employment Relations Commission (PERC), alleging that the disciplinary actions against him were in retaliation for union activity. He requested access to Ancora's facilities during the suspension. On December 2, 2010, PERC issued an order permitting Ruffin access to Ancora for union-related activities. Five days later, the State filed an application with PERC to dissolve the access order and restrain Ruffin from entering Ancora's premises.

On December 8, 2010, the parties entered into a settlement agreement whereby the State agreed to withdraw its pending application and Ruffin agreed to drop allegations in his PERC charge of an unfair denial of access to Ancora. On July 27, 2011, the Administrative Law Judge (ALJ) consolidated the Commission and PERC matters. In late 2011, PERC and the Commission adopted a joint order tasking the ALJ with conducting a fact-finding hearing as to both the Commission appeal and the PERC charge. Before the hearing on the consolidated matter, DHS reduced Ruffin's suspension to five days. DHS then moved to dismiss Ruffin's appeal for lack of jurisdiction.

On March 2, 2012, the ALJ heard arguments on DHS's motion. DHS argued that the reduced suspension divested the OAL of jurisdiction. Ruffin's appeal would be addressed by a Joint Union Management Panel (JUMP).2 Ruffin argued that his reduced suspension was inappropriate because the CBA had expired and JUMP was no longer a functioning review panel before which Ruffin could present his appeal. Ruffin also argued that the December 8 settlement between the parties specifically granted the OAL jurisdiction.

On March 30, 2012, the ALJ issued its Initial Decision. The ALJ found that the suspension did not satisfy the definition of major discipline;3 therefore, the minor-discipline rules applied and the OAL could not retain jurisdiction. Citing In re Murray, CSV 13663-08, Final Decision, Comm'n (February 26, 2009) http://www.lawlibrary.rutgers.edu/new-jersey-administrative-decisions-0, the ALJ found that "an appointing authority may modify a penalty to a minor discipline and . . . the appeal must be processed under the minor disciplinary rules." The ALJ reasoned that the decision was not prejudicial because Ruffin could appeal the minor disciplinary action to the Commission pursuant to N.J.A.C. 4A:2-3.7. Finally, the ALJ found that although the CBA had expired, the OAL still lacked "jurisdiction over minor-discipline appeals." The ALJ referred the appeal to JUMP and the unfair labor practice charge to PERC.

Ruffin and DHS filed exceptions and cross-exceptions to the ALJ's Initial Decision. On May 17, 2012, the Commission adopted the ALJ's recommendation to sever the consolidated cases, to dismiss the disciplinary appeal for lack of jurisdiction, and return the unfair practice charge to PERC for a hearing. The Commission concluded that the parties did not have the authority to contractually bind PERC or the Commission "regarding how matters properly before those agencies are processed." The Commission found that Ruffin would not be disadvantaged by the decision, as he could still challenge his suspension before JUMP, and receive a full hearing before PERC on the unfair labor practice charge. Finally, the Commission denied Ruffin's request for counsel fees because there was "no adjudication on the merits of the charges or the penalty and neither the ALJ nor the Commission reviewed any arguments or evidence to determine whether the appointing authority's disciplinary action was justified."

This appeal followed in which Ruffin raises the following points for our consideration:

I. THE PLAINTIFF WAS ENTITLED TO AN EVIDENTIARY HEARING ON THE ISSUES OF THE COMMISSION'S JURISDICTION AND WHETHER THE MODIFICATION OF THE PENALTY AFTER COMMENCEMENT OF THE OAL PROCEEDINGS WAS IN GOOD FAITH OR RESULTED IN PREJUDICE.

II. THE COMMISSION-PERC JOINT ORDER SET FORTH THE "LAW OF THE CASE," THUS DELEGATING A SPECIAL LIMITED PURPOSE FUNCTION TO THE OAL OF WHICH THE OAL COULD NOT BE DIVESTED BY A MODIFICATION OF PLAINTIFF'S PENALTY.

III. THE COMMISSION ERRED IN REFUSING TO IMPLEMENT THE JOINT ORDER AND THE PARTIES' AGREEMENT.

IV. THE COMMISSION ERRED IN CONCLUDING THAT THE MODIFICATION OF THE PENALTY DURING THE OAL PROCEEDINGS DOES NOT PERMIT AN AWARD OF COUNSEL FEES.

Having reviewed the record and considered the arguments of the parties, we determine these arguments lack merit. We affirm substantially for the reasons set forth in the written decision of the Commission dated May 17, 2012.

Our review of an administrative agency's final decision is limited. In re Proposed Quest Acad. Charter Sch. of Montclair Founders Grp., 216 N.J. 370, 385 (2013). An appellate court will not reverse an agency decision unless it is "arbitrary, capricious, or unreasonable, or is not supported by credible evidence in the record." Atl. City Med. Ctr. v. Squarrell, 349 N.J. Super. 16, 22 (App. Div. 2002). The burden of showing that the agency's decision was arbitrary, capricious, or unreasonable is on the party challenging the agency decision. In re Arenas, 385 N.J. Super. 440, 443-44 (App. Div.), certif. denied, 188 N.J. 219 (2006).

A "strong presumption of reasonableness attaches to the actions" of an administrative agency. In re Carroll, 339 N.J. Super. 429, 437 (App. Div. 2001). Thus, a court will affirm an administrative decision if the evidence supports the decision, even if the court would have reached a different result. Campbell v. N.J. Racing Comm'n, 169 N.J. 579, 587 (2001). Reviewing courts, however, are not bound by "an agency's interpretation of a statute or its determination of a strictly legal issue." In re Hearn, 417 N.J. Super. 289, 298 (App. Div. 2010). The standard of review is plenary on such issues. Ibid.

Guided by these principles, we find no abuse of discretion in the Commission's decision. On appeal, Ruffin argues the Commission was obligated to hear his disciplinary appeal. We disagree. Title 4A of the New Jersey Administrative Code contains specific rules that both provide for and limit the Commission's authority. In the context of disciplinary appeals, the Commission has jurisdiction to hear appeals from civil service employees' major disciplinary violations. N.J.A.C. 4A:2-2.8. As described above, major discipline includes suspensions or fines "for more than five working days at any one time." N.J.A.C. 4A:2-2.2(3)(b).

Minor discipline appeal procedures, on the other hand, "are established by a negotiated agreement." N.J.A.C. 4A:2-3.2(a). DHS reduced Ruffin's suspension to five days, prior to a hearing before the ALJ. Ruffin conceded on appeal that DHS properly exercised its inherent discretion "to reduce the level of [his] disciplinary penalty." However, relying on Murray, Ruffin argues the OAL should retain jurisdiction as the reduction was impermissible because the appeal had been pending for nearly six months and the ALJ had accepted several exhibits into evidence. We conclude Ruffin's reliance on Murray is misplaced. In Murray, the OAL was able to retain jurisdiction because the plaintiff was not covered under any negotiated agreement prescribing minor disciplinary appeal procedures, as plaintiff is in the present case. Murray, supra, at 3-4.

In the matter before us, the negotiated CBA between the State and AFSCME Local 2218 provides for specific appeal procedures in cases of minor disciplinary violations. The agreement, in relevant part, provides:

The parties agree to continue a Joint Union Management Panel consisting of one (1) person selected by the State and one (1) person selected by the Union and a third party neutral mutually selected by the parties. Each panel member shall serve on an ad hoc or other basis. The purpose of this panel is to review appeals from the Departmental determinations upholding disciplinary suspensions of one (1) through five (5) days or official written reprimands issued on or after July 1, 2003, excepting classified, provisional or probationary employees.

Under N.J.A.C. 4A:2-3.2(a), the CBA is controlling over the issue of jurisdiction that appeals from suspensions of five days or fewer are to be reviewed by JUMP. In light of the record and authority described above, we conclude the Commission's dismissal of Ruffin's minor disciplinary appeal for lack of jurisdiction to be reasonable and not arbitrary or capricious.

Next, we reject Ruffin's argument that he was entitled to an evidentiary hearing to address the Commission's jurisdiction and whether DHS's reduction of his suspension was prejudicial. According to Ruffin, the Commission erroneously made a "unilateral determination, without a hearing, that it lacked jurisdiction." Ruffin relies on B & J Realty, L.L.C. v. N.J. Dep't of Envtl. Prot., 381 N.J. Super. 52 (App. Div. 2005), for the proposition that "where material disputed facts pertaining to jurisdiction exist, the agency must grant a plenary hearing for resolution of those facts." Id. at 62. In finding that the agency erred in denying a request for an evidentiary hearing, the court in B & J Realty emphasized the materiality of the disputed facts relevant to the issue of jurisdiction. Ibid. However, notwithstanding the holding in B & J Realty, it is well-established that when there are no issues of material fact "an administrative agency need not hold an evidential hearing." Frank v. Ivy Club, 120 N.J. 73, 98 (1990), cert. denied, 498 U.S. 1073, 111 S. Ct. 799, 112 L. Ed. 2d 860 (1991).

Contrary to Ruffin's assertions, there is no genuine factual dispute here that is determinative of the Commission's jurisdiction as to warrant an evidentiary hearing. As noted above, where negotiated agreements provide for minor disciplinary appeals procedures, the Code purposely divests the Commission of jurisdiction. See N.J.A.C. 4A:2-3.2(a). Nothing in the record indicates that Ruffin has raised a genuine dispute as to the applicability of the New Jersey Administrative Code, nor the validity of the CBA, which is dispositive of the Commission's jurisdiction. Thus, we are satisfied Ruffin was not entitled to an evidentiary hearing on the issue of the Commission's jurisdiction over his minor disciplinary appeal.

Ruffin also contends that although DHS has discretion to modify a disciplinary penalty, an evidentiary hearing was necessary to determine whether DHS abused its discretion when it reduced his suspension. Ruffin relies on Hackensack v. Winner, 82 N.J. 1 (1980), for the proposition that the Commission's broad authority "includes the right to inquire into the good faith of governmental conduct directly affecting civil service employees." Id. at 18. However, Winner dealt with two separate, conflicting agency determinations, one by the Commission and one by PERC, over the plaintiffs' claims that they were wrongfully denied promotions. Id. at 9-10. The issue in Winner was which agency had jurisdiction over the subject matter of the claims. Id. at 13. The court determined that it could decide the issue of good faith in governmental conduct because both agencies had concurrent jurisdiction. Id. at 21. Winner is inapposite to the present case because here, the Commission determined that it lacked jurisdiction over Ruffin's appeal. Thus, while the Commission can, as a general matter inquire into an employer's good faith conduct, it can only do so if it possesses jurisdiction over the matter. See N.J.A.C. 4A:2-3.2.

Ruffin further argues that the suspension reduction prejudiced him in that he lost the opportunity to "clear the taint on his reputation left by the underlying allegations." He further argues that he was prejudiced because he no longer has the ability to challenge the remaining charges and five-day suspension because "the JUMP panel does not hold hearings." Ruffin's arguments are without merit in light of the procedures available to him in lieu of a hearing before the Commission. Moreover, Ruffin does not appear to have suffered any loss of his or her rights by receiving a reduced penalty. In fact, Ruffin received a benefit from having his penalty reduced from fifteen to five days. Nevertheless, Ruffin will have an opportunity to challenge his five-day suspension before JUMP. Furthermore, Ruffin will receive full consideration of his unfair labor practice charge before PERC. See N.J.S.A. 34:13A-5.4(c) (outlining the process afforded by a hearing examiner to those involved in PERC hearings); N.J.A.C. 19:10-1.1 (defining a hearing examiner as one who conducts hearings over allegations of unfair practices and issues a recommended report and decision). We therefore conclude by Ruffin has not suffered any cognizable prejudice.

We have examined Ruffin's remaining claims and find them to be without merit to warrant much discussion. See R. 2:11-3(e)(1)(E). We offer only the following discussion relating to Ruffin's argument that he is entitled to counsel fees under the Administrative Code.

Under N.J.S.A. 11A:2-22, the Commission may award reasonable attorney fees to an employee as provided by rule. The applicable rule, N.J.A.C. 4A:2-2.12(a), states in relevant part that the Commission "shall award partial or full reasonable counsel fees incurred in proceedings before it and incurred in major disciplinary proceedings at the departmental level where an employee has prevailed on all or substantially all of the primary issues before the Commission." This rule has been interpreted to require there be an adjudication on the merits before counsel fees can be awarded. See, e.g., In re Cinque, CSV 2012-189, Final Decision, Comm'n (May 3, 2012) http://www.lawlibrary.rutgers.edu/new-jersey-administrative-decisions-0 (denying the plaintiff-employee counsel fees under N.J.A.C. 4A:2-2.12(a) because there was no adjudication on the merits of the charges or penalty levied against him). In the present case, Ruffin cannot claim to have "prevailed" on the issues that were before the Commission as there was no adjudication on the merits. Moreover, a reduction in his suspension hardly makes Ruffin a prevailing party.4 Thus we are satisfied the Commission properly denied Ruffin counsel fees under N.J.A.C. 4A:2-2.12(a).

Affirmed.

1 DHS oversees the operation of Ancora through the Office of State Hospital Management. See State of New Jersey, Department of Human Services, Division of Mental Health Services, http://www.state.nj.us/humanservices/dmhs/oshm (last visited April 3, 2014).

2 A collective bargaining agreement (CBA) between the State and AFSCME Local 2218 provided that appeals from suspensions of five-days or fewer were to be reviewed by JUMP.

3 A suspension of more than five days constitutes a major discipline. N.J.A.C. 4A:2-2.2.

4 In Marjarum v. Twp. of Hamilton, 336 N.J. Super. 85 (App. Div. 2000), this court held that only exculpation and not "some lesser degree of success" is required before a police officer can be awarded attorney's fees pursuant to N.J.S.A. 40A:14-155. Id. at 94-95. That statute provides for attorney's fees when a criminal proceeding against the officer is "dismissed or finally determined in favor of the . . . officer." Thus, Marjarum supports the analogous position that a reduction in discipline does not make a plaintiff a prevailing party under the Code.