IN THE MATTER OF LIONEL DABNEY

NOT FOR PUBLICATION WITHOUT THE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 LIONEL DABNEY,

ATLANTIC CITY MUNICIPAL

UTILITIES AUTHORITY.

______________________________________

June 8, 2015

Submitted October 27, 2014 Decided

Before Judges Guadagno and Leone.

On appeal from the State of New Jersey, Civil Service Commission, Docket No. 2012-269.

Lionel Dabney, appellant pro se.

Ruderman & Glickman, attorneys for respondent Atlantic City Municipal Utilities Authority (Steven S. Glickman, of counsel and on the brief).

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

PER CURIAM

Appellant Lionel Dabney challenges the decision of the Civil Service Commission (CSC) upholding his removal from his position as laborer with respondent, the Atlantic City Municipal Utilities Authority (MUA). We affirm.

I.

The following facts are drawn from the December 21, 2012 decision of the Administrative Law Judge (ALJ). On the morning of January 4, 2011, Dabney and many other laborers were on the MUA loading dock waiting to be directed to work. Willie Norman, a supervisor in the MUA's management, was issuing orders. Norman spoke directly to laborer Bruce Johnson to relate what his assignment was for the day.

Dabney purposely interrupted Norman's directions to Johnson. Dabney, shouting loudly in a rage, stepped between Norman and Johnson. With his back to Norman, Dabney mocked Norman and told Johnson, "he is not your supervisor and you do not have to listen to him." Norman told Dabney to "stay out of my business," but Dabney continued to interrupt. Dabney made his comments in front of all the other laborers.

Dabney was subsequently served with a Preliminary Notice of Disciplinary Action. After a two-day internal hearing, a Final Notice of Disciplinary Action notified him that he was being removed.

Dabney appealed his discharge by the MUA to the CSC. The CSC, in turn, referred this contested case to the Office of Administrative Law for a hearing. See N.J.S.A. 52:14B-2. The ALJ held a three-day hearing at which Dabney was represented by counsel. Dabney testified that he did not make the comments and that it was Norman who was yelling. Dabney presented three other laborers as witnesses. The ALJ "found Johnson and Norman more credible than" Dabney, and upheld removal in an Initial Decision on June 20, 2012.

Dabney filed exceptions with the CSC. On November 8, 2012, the CSC remanded for the ALJ to explicitly address the testimony of Dabney's three witnesses and assess their credibility.

The ALJ issued a revised Initial Decision on December 21, 2012. The ALJ found Dabney's three witnesses "were, at best, passive observers" whose testimony was irrelevant, inaccurate, rehearsed, and unreliable. The ALJ again credited Norman and Johnson over Dabney.

The ALJ also found as follows. Dabney interjected himself uninvited into work-related matters between Norman and Johnson. Dabney intended to disrupt, undercut, and minimize Norman's supervisory authority and control over his workmen. He failed to follow Norman's order not to intervene, instead repeatedly and unnecessarily talking back to Norman. His conduct was disruptive and undermined both morale and management.

Accordingly, the ALJ upheld the charges of insubordination and conduct unbecoming a public employee, N.J.A.C. 4A:2-2.3(a)(2) and (6).1

In reviewing the penalty, the ALJ found as follows. Dabney had a substantial history of similar conduct. He had been disciplined for twenty prior incidents. His disciplinary history reflected a pattern of cursing out supervisors, other employees, and customers. His conduct was immature, unnecessary, and disruptive, and destabilized management, hurt morale, and caused a loss of public confidence.

The ALJ also found that even though the MUA repeatedly tried to work with Dabney, counsel him, and encourage him to temper his behavior, he had not reformed his ways during his nineteen years at MUA. His most recent discipline was originally termination, but was reduced by settlement to a six-month suspension. The ALJ noted that, though Dabney's new offenses would not require removal if viewed in isolation, they justified removal when considered in light of the totality of Dabney's disciplinary history.

Dabney again sought review by the CSC, which issued its final administrative action on February 6, 2013. The CSC adopted the ALJ's findings of fact and conclusion, found removal was justified, and dismissed Dabney's appeal.

II.

We must hew to our standard of review. "Appellate courts have 'a limited role' in the review of [CSC] decisions." In re Stallworth, 208 N.J. 182, 194 (2011) (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579 (1980)). "An appellate court affords a 'strong presumption of reasonableness' to an administrative agency's exercise of its statutorily delegated responsibilities." Lavezzi v. State, 219 N.J. 163, 171 (2014) (citation omitted). "In order to reverse an agency's judgment, an appellate court must find the agency's decision to be 'arbitrary, capricious, or unreasonable, or [] not supported by substantial credible evidence in the record as a whole.'" Stallworth, supra, 208 N.J. at 194 (quoting Henry, supra, 81 N.J. at 579-80).

In determining whether agency action is arbitrary, capricious, or unreasonable, a reviewing court must examine: "(1) whether the agency's action violates express or implied legislative policies, that is, did the agency follow the law; (2) whether the record contains substantial evidence to support the findings on which the agency based its action; and (3) whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors."

[Ibid. (quoting In re Carter, 191 N.J. 474, 482 (2007)).]

Here, we find no basis for concluding the CSC's decision adopting the ALJ's findings and conclusions was arbitrary, capricious, or unreasonable. The record contains substantial evidence supporting the CSC's findings that Dabney was insubordinate and engaged in unbecoming conduct "'which adversely affect[ed] the morale or efficiency of the [MUA.]'" Karins v. City of Atl. City, 152 N.J. 532, 554 (1998) (citation omitted). Thus, the CSC's conclusion was not clearly erroneous.

Dabney does not dispute the factual findings of the ALJ and the CSC concerning the January 4, 2011 incident. However, Dabney does contend the principle of progressive discipline did not justify removal.

"The concept of progressive discipline" seeks "to promote proportionality and uniformity in the rendering of discipline of public employees." Stallworth, supra, 208 N.J. at 195.

"[T]he concept of progressive discipline has been utilized in two ways": (1) to "ratchet-up" or "support [the] imposition of a more severe penalty for a public employee who engages in habitual misconduct"; and (2) "to mitigate the penalty" for an employee who has a record largely unblemished by significant disciplinary infractions.

[Id. at 196 (quoting In re Herrmann, 192 N.J. 19, 30-33 (2007).]

"Under the concept of progressive discipline, one act of misconduct may result in 'minor discipline' merely because it was a first offense, whereas the same misconduct, if repeated, could justify the imposition of 'major discipline,' including termination." Id. at 198. "To assure proper 'progressive discipline,' and a resulting penalty based on the totality of the work history, an employee's past record with emphasis on the 'reasonably recent past' should be considered." Id. at 199 (citation omitted). "[T]he existence of a dismal disciplinary record can support an appointing authority's decision to rid itself of a problematic employee based on charges that, but for the past record, ordinarily would have resulted in a lesser sanction." Herrmann, supra, 192 N.J. at 32.

In Herrmann, our Supreme Court cited "a classic example of such use of progressive discipline," namely our decision upholding removal in In re Morrison, 216 N.J. Super. 143 (App. Div. 1987). Herrmann, supra, 192 N.J. at 31. "Morrison had a substantial history of [five] disciplinary suspensions over his seventeen-year career, with the most recent and weighty suspension (thirty days plus loss of twenty vacation days) occurring only three and a half years earlier." Ibid.; see Morrison, supra, 216 N.J. Super. at 150. Dabney also has a substantial history of eight disciplinary suspensions over his nineteen-year career, with the most recent and weighty suspension for six months occurring only three years and seven months earlier. As in Morrison, "[t]hat poor record, coupled with the most recent incident," was sufficient to support removal, which "was not arbitrary, capricious, or unreasonable." Herrmann, supra, 192 N.J. at 31.

On appeal, Dabney contests the validity of prior disciplinary actions against him, but the ALJ properly declined "to have hearings within hearings on all the previously adjudicated disciplinary actions." Dabney also asserts his removal was to punish him for his union activities. The ALJ discredited that claim. In any event, Dabney's counsel did not pursue either argument with the ALJ or the CSC.

"[T]he significance or impact of the prior disciplinary record [is] a subject particularly within the expertise of the [CSC]." Stallworth, supra, 208 N.J. at 200. Because of the agency's expertise, we "accord substantial deference" to its choice of sanction. Herrmann, supra, 192 N.J. at 34-35. Here, we cannot say that the "'punishment is so disproportionate to the offense, in the light of all of the circumstances, as to be shocking to one's sense of fairness.'" Stallworth, supra, 208 N.J. at 195 (quoting Carter, supra, 191 N.J. at 484-85).

III.

In his pro se appeal, Dabney raises several other arguments not raised before the ALJ or the CSC. However,

"[i]t is a well-settled principle that our appellate courts will decline to consider questions or issues not properly presented to the trial court when an opportunity for such a presentation is available unless the questions so raised on appeal go to the jurisdiction of the trial court or concern matters of great public interest."

[State v. Robinson, 200 N.J. 1, 20 (2009) (quoting Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) (citation and internal quotation marks omitted)).]

As our Supreme Court recently reaffirmed, that principle in Zaman v. Felton, 219 N.J. 199, 226 (2014).

Two of Dabney's arguments go to the jurisdiction of the CSC. Because these arguments were not raised below, he must show plain error. R. 2:10-2. To show plain error, "'defendant has the burden of proving that the error was clear and obvious,'" and that it had "'the clear capacity to bring about an unjust result.'" State v. Koskovich, 168 N.J. 448, 529 (2001) (citations omitted).

First, Dabney claims he is not a permanent career civil servant, and thus is not subject to the CSC's jurisdiction. However, the Atlantic City MUA is a civil service agency.2 Laborers have long been included in the Civil Service Act, now codified at N.J.S.A. 11A:1-1 to 11A:12-6. See, e.g., Loboda v. Clark, 40 N.J. 424, 429 (1963).

"'Career Service' means those positions and job titles subject to the tenure provisions of Title 11A, New Jersey Statutes." N.J.A.C. 4A:1-1.3. "'Permanent employee' means an employee in the career service who has acquired the tenure and rights resulting from regular appointment and successful completion of the working test period." Ibid. Dabney, having been employed by the MUA as a laborer for nineteen years, can hardly claim he is not a permanent career service employee.

Thus, Dabney "is subject to N.J.A.C. 4A:2-2.2, because he is [a] permanent employee in the career service under N.J.A.C. 4A:2-2.1." Stallworth, supra, 208 N.J. at 198 n.6. Indeed, Dabney has repeatedly been disciplined within the civil service system, including his most recent discipline, for which he faced removal but agreed to a six-month suspension. Dabney's claim he was not familiar with the civil service procedures thus rings hollow.

The CSC has the power and duty to "render the final administrative decision on appeals concerning permanent career service employees or those in their working test period" facing major discipline, including removal, suspension, or demotion for disciplinary reasons. N.J.S.A. 11A:2-6(a); N.J.A.C. 4A:2-2.8, -2.9(b); see also N.J.S.A. 11A:2-13, -14, -20; N.J.A.C. 4A:1 -1.3, -2.2(a). Because the MUA sought Dabney's removal for violating N.J.A.C. 4A:2-2.2(a)(2) and (6) of the Civil Service regulations, the CSC had jurisdiction to decide Dabney's appeal.

Second, Dabney argues that he could not be terminated through civil service proceedings because he was protected by a collective bargaining agreement which provides that grievances and disputes should be settled by arbitration.3 "[I]n any agreement entered into between the public employer and the representative organization," a public employer "shall negotiate written policies setting forth grievance and disciplinary review procedures," and "may provide for binding arbitration as a means for resolving disputes." N.J.S.A. 34:13A-5.3.

However, "the procedures agreed to by the parties may not replace or be inconsistent with any alternate statutory appeal procedure nor may they provide for binding arbitration of disputes involving the discipline of employees with statutory protection under tenure or civil service laws." Ibid. The only exception is "that such procedures may provide for binding arbitration of disputes involving the minor discipline of any public employees." Ibid. Minor discipline is limited to a fine or a suspension of five days or less. Ibid.; see Cnty. of Monmouth v. Commc'ns Workers of Am., 300 N.J. Super. 272, 295 (App. Div. 1997).4

Thus, if a local public employee facing major discipline is in the civil service, or otherwise "has an alternative statutory remedy against alleged unjust discipline, then binding arbitration of that grievance, otherwise authorized as part of negotiated disciplinary procedures, may not be invoked." N.J. Tpk. Auth. v. N.J. Tpk. Supervisors Ass'n, 143 N.J. 185, 195 (1996); see State v. State Troopers Fraternal Ass'n, 134 N.J. 393, 412 (1993); Cnty. of Monmouth, supra, 300 N.J. Super. at 289. The MUA collective bargaining agreement could not substitute binding arbitration for the statutory appeal procedure to the CSC for the major discipline of Dabney.

Dabney's remaining arguments are without sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E).

Affirmed.

1 The ALJ dismissed a third charge based on Dabney's alleged violation, later on January 4, 2011, of an MUA rule requiring a supervisor's permission before meeting with a personnel officer. The MUA has not cross-appealed the dismissal of that charge.

2 See Civil Service Jurisdictions, N.J. Civil Serv. Comm'n, http://www.nj.gov/csc/about/divisions/slo/jurisdictions.html (last visited May 22, 2015).

3 Although the collective bargaining agreement was introduced into evidence before the ALJ, Dabney did not argue that it barred the civil service disciplinary proceedings. Rather, he cited it to show that it called for progressive discipline, and that it would be contrary to Dabney's grievance rights to penalize him for meeting with the personnel officer.

4 Unlike a municipal entity like the MUA, "the State of New Jersey" may agree to binding arbitration of major discipline covered by N.J.S.A. 11A:2-6(a). N.J.S.A. 11A:2-14; N.J.A.C. 4A:2-2.1(d).