IN THE MATTER OF ROGER CALDWELL, JR MERCER COUNTY BOARD OF SOCIAL SERVICES

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3629-08T1

IN THE MATTER OF

ROGER CALDWELL, JR.,

MERCER COUNTY BOARD OF

SOCIAL SERVICES.

____________________________

November 3, 2010

Argued September 21, 2010 - Decided

Before Judges Wefing and Koblitz.

On appeal from the New Jersey Civil Service

Commission, Docket No. 2006-443.

Carleen M. Steward argued the cause for

appellant Roger E. Caldwell, Jr. (Gaylord

Popp, attorneys; Samuel M. Gaylord, on

the brief).

Robert A. Obler argued the cause for

respondent Mercer County Board of

Social Services (Markowitz Gravelle,

attorneys; Mr. Obler, on the brief).

Paula T. Dow, Attorney General, attorney

for New Jersey Civil Service Commission (Andrea R. Grundfest, Deputy Attorney

General, on the statement in lieu of

brief).

PER CURIAM

Petitioner appeals from a Final Decision of the Civil Service Commission terminating him from his position with the Mercer County Board of Social Services ("the Board") as a Human Services Specialist II. After reviewing the record in light of the contentions advanced on appeal, we affirm.

Petitioner commenced working for the Board in October 2000. His termination was based upon his conduct in 2005 in connection with a client, I.C., leading to a charge of conduct unbecoming to a public employee. Following a departmental hearing, at which the charge was upheld, with termination as the penalty, petitioner appealed. The hearing before the administrative law judge was conducted in two separate segments. At the first, the Board presented a number of witnesses, but I.C. did not testify although a recording of her testimony at the departmental hearing was received. At the conclusion of that hearing, the administrative law judge found the charges not substantiated; he concluded that the presentation of I.C.'s recorded testimony at the departmental hearing was insufficient for purposes of the hearing before him. The agency, after reviewing that initial decision, did not make a final decision but, rather, remanded the matter to the Office of Administrative Law for purposes of permitting I.C. to testify in person. Following the conclusion of that second segment, the administrative law judge issued a decision finding the testimony of I.C. not persuasive and concluding that the disciplinary charge had not been proven. The administrative law judge recommended the charge be dismissed. To this, the Board filed written exceptions. After reviewing the decision of the administrative law judge, the Civil Service Commission rejected it. It found that the Board had proven the charge and that termination was the appropriate penalty. This appeal followed.

I.C. said she came to the Board seeking assistance, in particular with respect to food stamps and housing, and was assigned to work with petitioner. She said she explained to him that she had two children, then approximately six years and four years of age, but that they lived with her mother, and she saw them on weekends. She said she was paying child support to her mother for them. She provided a variety of information to him, including her address and cell phone number. She returned a second time to provide additional paper work to him. She said she then received several telephone calls from him, telling her she needed to provide additional information. When she replied she could not immediately get back to the office, he told her that he also worked as a bartender at the Veterans of Foreign Wars (VFW) hall in Ewing and that she could drop the paper work there for him. She said she agreed to meet him there on the evening of Sunday, February 13, after she returned her children to her mother.

She said she arrived sometime after 8:30 p.m., bringing the papers with her. She said she had not known where the hall was located, but Caldwell had called her on her cell phone to give her directions. Caldwell came out to the parking lot and told her to come inside, which she did. He told her where to sit, at the end of the bar, and gave her a drink. After some time, he told her to go to his car in the parking lot and wait for him; again, she did so. She waited for a while and he then came out and drove her to a nearby Kentucky Fried Chicken, where he purchased food for both of them. When he did not return to the VFW hall in Ewing, she asked why, and he replied that he wanted to spend some time with her. He then drove to a nearby motel, on Route One. He left her in the car and went to register as a guest. He then took her to a room on the second floor, where he sexually assaulted her. When he had finished, he left $20 on the bed and then drove her back to Ewing where she got into her car and drove off. She said she drove home, crying, and took a shower. She did not tell anyone because she thought no one would believe her. Later, she talked to her mother, who told her she should report the incident. Eventually, she contacted Caldwell's supervisor, who initiated an investigation. In the course of the investigation, I.C. identified the Mount Motel as the site at which Caldwell had assaulted her. Although Caldwell admitted frequenting the motel, he denied doing so with I.C. The motel had in its records a registration card signed "Junoir [sic]," but there was testimony that two employees of the motel were unable to identify Caldwell's photograph.

Caldwell gave a completely different version of his interaction with I.C. He said I.C. came to the Board in January 2005 seeking certification with respect to her eligibility for food stamps, and she was directed to petitioner. She did not have with her all the necessary documentation to establish her eligibility and she had to return for a second visit. He testified, however, that during the first meeting he did provide her with information about several programs that might be able to provide assistance to her in meeting her housing needs.

Caldwell testified that I.C. returned in February 2005. He said that he checked certain of the information she provided against other records and told her that the amount of food stamps she would receive would be reduced by $33 per month. I.C. protested there must have been a mistake. He said he never assured her he would assist her in finding housing because that was not within his area of responsibility. He said that was his last meeting with her. He also said that he was later approached by his supervisor and told that I.C. had apparently sought to claim benefits on the basis of children who did not reside with her, but with her mother, who was receiving food stamps for them. His supervisor instructed him to complete a fraud complaint form. Although he did so, I.C. was never charged with fraud. He insisted he had no further contact with I.C. after her second visit to the office and denied ever meeting with her outside of the office. He maintained that I.C.'s charge was filed to retaliate against him because he had discovered her fraudulent attempt to obtain benefits.

To support the charge against Caldwell, the Board noted the various details within I.C.'s testimony that would only have been known to her if the incident had occurred as she related it. In his decision following the remand hearing, the administrative law judge rejected that argument and concluded his opinion with the statement, "[t]he assessment of I.C.'s credibility is not such as to disturb the earlier determination that respondent failed to meet its burden of proof by a preponderance of the evidence."

Appellant makes but one contention on appeal, that the decision of the Civil Service Commission was not based on sufficient credible evidence and was arbitrary, capricious and unreasonable and, therefore, should be reversed and Caldwell reinstated. We are unable to agree.

Before proceeding to analyze the record before us, we note the limited scope of our review. A final decision of an administrative body such as the Civil Service Commission should not be disturbed on appeal unless it is arbitrary, capricious or unreasonable. Karins v. City of Atlantic City, 152 N.J. 532, 540 (1998). An appellate court may not simply rubberstamp the agency's final decision, but must engage in a "careful and principled consideration of the agency record and findings." Riverside Gen. Hosp. v. N.J. Hosp. Rate Setting Comm'n, 98 N.J. 458, 468 (1985). If, at the conclusion of such a review, the appellate court is satisfied that the agency's findings "could reasonably have been reached on sufficient credible evidence present in the record, considering the proofs as a whole," they should be affirmed. Close v. Kordulak Bros., 44 N.J. 589, 599 (1965) (citation omitted).

We note as well that in this appeal we are not called upon to review the fact-finding of the administrative law judge but, rather, the Commission, the entity vested with the ultimate fact-finding authority. Further, the administrative law judge, to the extent he made determinations with respect to credibility, did not do so on the basis of the demeanor of I.C., but on the basis of what he perceived the record to contain. Having conducted our own review of this record, we agree with the Commission that the findings of the administrative law judge do not find support within that record.

The Board pointed to various factors to support I.C.'s testimony, including that she could not have known that Caldwell worked as a bartender at the VFW hall in Ewing unless this incident occurred. The administrative law judge rejected this contention, saying that she could have learned of his part-time involvement with the VFW through flyers posted at the Board's office. The Commission correctly noted that there is absolutely no evidence in this record that such flyers were posted. The remark by the administrative law judge constitutes no more than speculation.

The Board also pointed to the fact that I.C. was able to correctly describe the kind of automobile that Caldwell drove. This also, it argued, supported her testimony of what occurred.

The administrative law judge rejected this on the basis that she could have seen him driving through the streets of Trenton or observed him in the employee parking lot. Employees of the Board, however, park in a different location than do visitors and enter the building through a different location than do visitors. There is no factual basis to support an inference that I.C. at any time saw Caldwell enter or depart the Board's employee parking lot or saw him driving through the area.

N.J.S.A. 52:14B-10(c) provides in pertinent part that when an agency head is reviewing the decision of an administrative law judge, the agency head

may not reject or modify any findings of fact as to issues of credibility of lay witness testimony unless it is first determined from a review of the record that the findings are arbitrary, capricious or unreasonable or are not supported by sufficient, competent, and credible evidence in the record. In rejecting or modifying any findings of fact, the agency head shall state with particularity the reasons for rejecting the findings and shall make new or modified findings supported by sufficient, competent, and credible evidence in the record.

We are satisfied the Commission fully complied with its duties in this regard.

The Final Decision of the Civil Service Commission is affirmed.