IN THE MATTER OF MICHAEL DRIBER AND WILLIAM LaGRAFF

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0904-05T10904-05T1

IN THE MATTER OF MICHAEL

DRIBER AND WILLIAM LaGRAFF.

___________________________________

 

Argued January 24, 2007 - Decided February 26, 2007

Before Judges Lefelt and Parrillo.

On appeal from the Merit System Board, Department of Personnel.

Charles J. Uliano argued the cause for appellants

Michael Driber and William LaGraff (Chamlin, Rosen, Uliano & Witherington, attorneys; Mr. Uliano, on the brief).

Julie D. Barnes, Deputy Attorney General, argued

the cause for respondents Department of Corrections and Merit System Board (Stuart Rabner, Attorney

General of New Jersey, attorney; Michael J. Haas,

Assistant Attorney General, of counsel; Andrea R.

Grundfest, Deputy Attorney General, on the brief).

PER CURIAM

Appellants Michael Driber and William LaGraff appeal from the September 22, 2005 final administrative decision of the Commissioner of Personnel, which concluded that the Department of Corrections (DOC) did not abuse its discretion in the disciplinary actions taken against these two employees and that no further review of the two minor disciplinary determinations was warranted. We affirm.

Appellants are both Senior Corrections Officers (SCO) at Mid-State Correctional Facility in Wrightstown. In March 2003, they were charged with conduct unbecoming a public employee, namely falsification of records (LaGraff) and making false statements (Driber) concerning the off-duty weapons qualification of another SCO. At the conclusion of three days of hearings at the departmental level, the charges were upheld and a sanction of thirty working days suspension was imposed on both employees. The departmental decisions were appealed to the Merit System Board (Board) and transferred to the Office of Administrative Law (OAL) for a de novo hearing. However, before the administrative hearing commenced, the DOC modified the thirty-day suspensions imposed on appellants to minor disciplinary penalties of five-day suspensions, which by virtue of the reduction were now subject to the minor disciplinary appeal procedures delineated in N.J.A.C. 4A:2-3.7. Consequently, the consolidated matter was removed from the jurisdiction of the OAL, N.J.A.C. 4A:2-2.2 and N.J.A.C. 4A:2-3.1, and referred to the Department of Personnel (DOP) for processing.

On appeal to the DOP, appellants sought to have their cases returned to the OAL for a full hearing, on the grounds that additional consequences of the disciplinary determinations elevated the five-day penalties into the category of major, rather than minor, discipline. Specifically, they argued that being barred from continuing to work as certified firearms instructors, and reassignments altering their work schedules, in addition to the five-day suspensions, warranted a full hearing on the issues giving rise to the disciplinary actions. Appellants also contended that the modification from major to minor disciplinary penalties deprived them of the right to seek attorney's fees under merit system rules, N.J.A.C. 4A:2-2.12(a), allowing the award of counsel fees for departmental hearings and further appeal proceedings involving major discipline if an employee prevailed on all or substantially all of the issues before the Board.

In the September 22, 2005 final agency decision, the Commissioner, relying on Board precedent (In the Matter of Thomas Burd, (DOP Docket No. 2002-1212, August 20, 2001)), concluded that an appointing authority "has the inherent right to reduce a disciplinary penalty." The Commissioner also noted that certification as a firearms instructor is neither a requirement of the specification for the SCO title, nor a prerequisite for any SCO assignment, and therefore, whether or not appellants hold a certification as a firearms instructor is irrelevant to their assignment. Moreover, N.J.A.C. 4A:4-7.2 provides the appointing authority with considerable discretion in the reassignment of employees, and nothing in the record suggests that the appointing authority violated merit system rules in reassigning appellants.

The Commissioner's decision emphasized that the record revealed an extensive investigation and hearing process conducted by the appointing authority, which hinged upon the credibility judgments of the hearing officer. Without any claim or showing that the adjudications by the appointing authority were improperly motivated by invidious discrimination or considerations of age, race or gender bias, or were in violation of merit system rules, the Commissioner found no further DOP review was warranted.

We agree. The Commissioner acted reasonably and within departmental rules when he dismissed Driber's and LaGraff's appeals from the DOC's imposition of minor discipline.

Judicial review of administrative actions is limited. In re Musick, 143 N.J. 206, 216 (1996); Gloucester County Welfare Bd. v. State Civil Serv. Comm'n, 93 N.J. 384, 390 (1983). An agency's decision will not be upset unless it is arbitrary, capricious, unreasonable, unsupported by substantial credible evidence contained in the record, or in violation of express or implicit legislative policies. In re Juvenile Det. Officer, 364 N.J. Super. 608, 614 (App. Div. 2003). See also In re Taylor, 158 N.J. 644, 656-57 (1999); In re CAFRA Permit No. 87-0959-5, 152 N.J. 287, 304 (1997); Barry v. Arrow Pontiac, Inc., 100 N.J. 57, 71 (1985).

Indeed, a strong presumption of reasonableness attaches to an agency decision. In re Carroll, 339 N.J. Super. 429, 437 (App. Div.), certif. denied, 170 N.J. 85 (2001). Thus, a court will affirm an administrative decision if the evidence supports the decision, even if the court may question the wisdom of the decision or would have reached a different result. Campbell v. N.J. Racing Comm'n, 169 N.J. 579, 587 (2001). In addition, we give weight to the presumed expertise of an administrative agency when reviewing its decision. Shahmoon Indus., Inc. v. Dep't of Health, 93 N.J. Super. 272, 282 (App. Div. 1966), certif. denied, 49 N.J. 358 (1967).

Furthermore, courts generally defer to an agency's interpretation of its own enabling legislation, as well as regulations promulgated to implement the statute which the agency is charged with administering. Medical Soc'y of N.J. v. Dep't of Law & Public Safety, 120 N.J. 18, 25-26 (1990); Mayflower Secs. Co. v. Bureau of Secs., 64 N.J. 85, 92-93 (1973). The courts "give a special deference to the agency's actions where the agency has interpreted the statutory scheme for which it is responsible. In re Tavani, 264 N.J. Super. 154, 158 (App. Div. 1993) (citing Thermographic Diagnostics, Inc. v. Allstate Ins. Co., 125 N.J. 491, 516 (1991)); see also Matturri v. Bd. of Tr. of the Judicial Ret. Sys., 173 N.J. 368, 381 (2002). Unless the agency's determination is "patently incompatible with the language and spirit of the law" the judiciary will not interfere in the exercise of administrative authority. In re Hudson County Prob. Dep't, 178 N.J. Super. 362, 371 (App. Div. 1981) (quoting Walsh v. Civil Serv. Dep't, 32 N.J. Super. 39, 44 (App. Div. 1954), certif. granted, 17 N.J. 182 (1955) (subsequently dismissed)).

This is especially true with respect to an agency's choice of sanction, to which we "generally afford substantial deference." In re Zahl License Revocation, 186 N.J. 341, 353-54 (2006). In fact, an appointing authority has inherent discretion to set disciplinary penalties. West New York v. Bock, 38 N.J. 500, 518 (1962). Thus, we will modify a sanction:

. . . only when necessary to bring the agency's action into conformity with its delegated authority. The Court has no power to act independently as an administrative tribunal or to substitute its judgment for that of the agency. It can interpose its views only where it is satisfied that the agency has mistakenly exercised its discretion or misperceived its own statutory authority.

[Zahl, supra, 186 N.J. at 353-54 (quoting In re Polk License Revocation, 90 N.J. 550, 578 (1982))].

"[T]he test in reviewing administrative sanctions is whether such punishment is so disproportionate to the offense, in light of all the circumstances, as to be shocking to one's sense of fairness." Id. at 354 (internal quotation marks omitted).

On this score, the Legislature has vested the Commissioner of Personnel and the Board with broad supervisory power over all aspects of the career public service including, most notably for present purposes, the discipline of public employees. See N.J.S.A. 11A:2-6; N.J.S.A. 11A:2-11; see also Mullin v. Ringle, 27 N.J. 250, 256 (1958). In this regard, the Legislature explicitly differentiated between the appeal rights of employees subject to major and minor discipline. Compare N.J.S.A. 11A:2-14 with N.J.S.A. 11A:2-16. As to the latter, the Legislature has expressly defined minor disciplinary actions exclusively by reference to the length of suspension only, and specifically as those involving suspensions of five days or less. N.J.S.A. 11A:2-16; see also N.J.A.C. 4A:2-3.1(a). In such instances, the State employee may request Board review "under standards and procedures established by the [B]oard . . . ." N.J.S.A. 11A:2-16.

In accordance with this delegated authority, the Board promulgated N.J.A.C. 4A:2-3.7, which provides that when a minor disciplinary action is appealed to the Board, the Commissioner is vested with the responsibility to review the appeal on the written record and determine if the case "presents issues of general applicability in the interpretation of law, rule, or policy," or if it involves invidious discrimination on the basis of age, race, gender, or other impermissible bias. N.J.A.C. 4A:2-3.7(a); N.J.A.C. 4A:2-5.1; N.J.A.C. 4A:7-3.1(b). These issues must be "fully presented," or the Commissioner is empowered to issue a final administrative decision dismissing the appeal. N.J.A.C. 4A:2-3.7(a)1.

Here, the Commissioner reasonably determined that, absent any statutory limitation or proscription, the DOC permissibly exercised its inherent discretion to reconsider and reduce appellants' suspensions from major to minor discipline, and further that their appeal from the imposition of these penalties presented neither issues of general applicability nor claims of invidious discrimination. Indeed, even appellants concede the latter, and contrary to their arguments as to the former, the question of whether the so-called collateral consequences elevate the five-day suspension to major discipline is really fact specific and not one of general application.

Moreover, their claim in this regard is substantively without merit. The statutory definition of "minor discipline" does not mention collateral consequences and to accord them any greater significance would clearly contravene the plain language of N.J.S.A. 11A:2-16. Thus, the Commissioner's decision to treat the penalties imposed as "minor" discipline was neither arbitrary, capricious nor unreasonable.

In any event, the consequences complained of by appellants were well within the DOC's discretion to impose. The DOC's exercise of its discretion to reassign the officers, pursuant to N.J.A.C. 4A:4-7.2, is not violative of merit system rules. Moreover, the revocation of appellants' certification as firearms instructors did not alter their titles. And finally, the lack of an ability to obtain counsel fees for departmental hearings in cases resulting in minor discipline simply does not transform a five-day suspension into major discipline. In fact, we fail to see how the DOC's penalty modifications placed appellants in any worse position than they would have been if the five-day suspensions had originally been imposed. Clearly, appellants could not be heard to complain of too lenient a penalty.

Lastly, we are satisfied from our review of the record that the imposition of the minor discipline on appellants did not offend their due process rights, since they received ample notice of the charges against them and they and their counsel had an opportunity to defend against the charges at a full and fair departmental hearing. Cf. Keyes Martin & Co. v. Director, Div. of Purchase & Property, 99 N.J. 244, 264-65 (1985). Simply put, appellants received adequate notice and an opportunity to be heard to satisfy administrative due process.

Affirmed.

 

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A-0904-05T1

February 26, 2007