IN THE MATTER OF JEANETTE B. JACKSON

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1028-05T11028-05T1

IN THE MATTER OF JEANETTE B. JACKSON

UNION VICINAGE

DEPARTMENT OF JUDICIARY

________________________________________

 

Submitted October 5, 2006 - Decided December 14, 2006

Before Judges Lefelt and Sapp-Peterson.

On appeal from a Final Administrative Decision of the Merit System Board, DOP Docket No. 2004-1547.

Loccke, Correia, Schlager, Limsky & Bukosky, attorneys for appellant Jeanette B. Jackson (Michael A. Bukosky, on the brief).

Elaine D. Dietrich, Counsel to the Administrative Director of the Courts, attorney for respondent State of New Jersey Judiciary, Union Vicinage (Thomas Russo, Staff Attorney, on the brief).

Stuart Rabner, Attorney General, attorney for respondent Merit System Board (Pamela N. Ullman, Deputy Attorney General, on the statement in lieu of brief).

PER CURIAM

Jeanette B. Jackson appeals from a final determination of the Merit System Board (Board) issued on September 13, 2005, upholding the Administrative Law Judge's (ALJ) decision finding that her employer, the Judiciary, had proved its charges against her by the preponderance of the evidence, warranting her removal. We affirm.

On appeal, Jackson contends the Board improperly considered a twenty-day suspension she served under a previous disciplinary action. According to Jackson, she agreed to the earlier suspension with the understanding that the discipline would not be considered in any subsequent disciplinary action. The ALJ rejected this contention and found that the settlement did not preclude consideration of the suspension.

After reviewing the record in light of the arguments advanced on appeal, we conclude that the decision is supported by sufficient, credible evidence in the record and that Jackson's contentions are without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(D), (E); see also Watson v. City of East Orange, 175 N.J. 442, 444 (2003) (finding that under limited standard of review, no basis existed to overturn Merit System Board's determination). We add only the following comments.

Jackson was employed by the Judiciary as a Clerk II in Union County. On September 4, 2002, Jackson received a Preliminary Notice of Disciplinary Action charging her with chronic/excessive lateness under N.J.A.C. 4A:2-2.3(a)(4) and, on December 9, 2002, Jackson received a second Preliminary Notice of Disciplinary Action charging her with neglect of duty under N.J.A.C. 4A:2-2.3(a)(7) and other sufficient cause under N.J.A.C. 4A:2-2.3(a)(11). The matter was forwarded to the Office of Administrative Law (OAL) as a contested matter and was tried over a three-day period in June 2005.

During the hearing, the ALJ permitted the Judiciary to introduce evidence that on October 9, 2001, Jackson was presented with a Notice of Disciplinary Action charging her with chronic/excessive lateness a "'total of 82 times for a total of 17 hours, 29 minutes' since January 2001." Jackson entered into a settlement agreement in connection with those charges in which she agreed to accept a twenty-day suspension without pay as a penalty. The pertinent language in the settlement at issue in the present appeal provided, "settlement shall not be binding or act as precedent in any other matter except as set forth herein."

Jackson contends the clear import of this language was that the previously imposed twenty-day suspension would not be used against her in any subsequent proceeding. She argues further that because the settlement did not include the express language found in Williams v. Div. of Revenue, Dep't of the Treasury, CSV 6362-98, Initial Decision, (October 8, 1999), modified, Merit System Board (January 11, 2000) , that the twenty-day suspension was "considered a step of progressive discipline," the ALJ's reliance upon Williams, supra, as a basis to consider the previously imposed suspension, was misplaced. Rather, Jackson contends that under Pascarella v. Bruck, 190 N.J. Super. 118, 125 (App. Div.), certif. denied, 94 N.J. 600 (1983), the parties were bound by the settlement agreement and the prior discipline should not have been considered, thus entitling Jackson to the imposition of discipline less than removal.

Our role in reviewing the final decision of an administrative agency is limited. When reviewing the Board's decision, a presumption of validity attaches to the agency's decision, and we do not disturb the Board's ruling unless we find its action was arbitrary, capricious, or unreasonable. Matturri v. Bd. of Trs. of the Judicial Ret. Sys., 173 N.J. 368, 381 (2002); see also Karins v. City of Atl. City, 152 N.J. 532 (1998); see also Brady v. Bd. of Review, 152 N.J. 197, 210 (1997); Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980).

Here, in response to Jackson's contention that the prior settlement could not be considered by the ALJ, the Board agreed with the ALJ's determination that "the prior settlement agreement could not be introduced by the vicinage to prove that Ms. Jackson had been tardy at anytime following the settlement," but that the ALJ was not foreclosed from considering the prior discipline on the question of "whether there had been progressive discipline." We agree with this interpretation of the settlement and conclude that consideration of the twenty-day suspension in determining the appropriate penalty for the underlying charges was appropriate. See West N.Y. v. Bock, 38 N.J. 500 (1962).

The record before the Board also included the ALJ's determination that Jackson had been late on all occasions cited in the disciplinary notices and that:

[Jackson] still insists that her lateness is of no consequence and has been countenanced by the supervisory staff. In fact, there was ample testimony that her behavior has had a serious effect on the administration of the Special Civil Division, which is an important arm of the judicial system. It has lowered the morale of her co-workers; it has disrupted the office routine and it has impacted the delivery of services to the public.

In our view, there was sufficient evidence before the Board to warrant the discharge sanction, even in the absence of prior discipline. See In re Herrmann, supra, 387 N.J. Super. at 458.

We are satisfied that the decision by the Board "could reasonably have been reached on sufficient credible evidence present in the record." Close v. Kordulak Bros., 44 N.J. 589, 599 (1965). Accordingly, the decision was not arbitrary, capricious, or unreasonable.

 
Affirmed.

(continued)

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A-1028-05T1

December 14, 2006