IN THE MATTER OF WALTER GRAHAM

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3913-10T3

IN THE MATTER OF WALTER

GRAHAM, DEPARTMENT OF

CORRECTIONS.

_______________________________________

December 6, 2012

Argued October 30, 2012 Decided

Before Judges Reisner, Yannotti and Hoffman.

On appeal from the Civil Service Commission.

Deana L. Walsh argued the cause for appellant Walter Graham (Chance & McCann, attorneys; Ms. Walsh, on the brief).

Christopher J. Hamner, Deputy Attorney General, argued the cause for respondent New Jersey Department of Corrections (Jeffrey S. Chiesa, Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Mr. Hamner, on the brief).

PER CURIAM

Walter Graham (Graham) appeals from a final determination of the Civil Service Commission (Commission), which upheld Graham's removal from his position as a corrections sergeant in the New Jersey Department of Corrections (Department) and set

aside sanctions that the Administrative Law Judge (ALJ) had imposed upon the Department. We affirm.

Graham was employed at the Department's Southern State Correctional Facility (SSCF). On October 16, 2008, the Department served Graham with a preliminary notice of disciplinary action, charging him with conduct unbecoming a public employee, N.J.A.C. 4A:2-2.3(a)(6); insubordination, N.J.A.C. 4A:2-2.3(a)(2); and violation of a rule, regulation, policy, procedure, order or administrative decision, and intentional misstatement of a material fact in connection with the work, N.J.A.C. 4A:2-2.3(a)(11). The charges arose out of Graham's failure to provide a urine sample for a drug test despite repeated orders that he do so.

After holding an initial hearing on the charges, the Department served Graham with a final notice of disciplinary action and removed him from his position effective April 22, 2009. Graham appealed the Department's action to the Commission, which referred the matter to the Office of Administrative Law (OAL) for a hearing before an ALJ.

While the matter was pending at the OAL, the Department sent Graham a letter indicating that it intended to call Dr. George F. Jackson, Ph.D. (Jackson), Director of the State's Toxicology Laboratory, to testify about the effects that time has on the presence of drugs in the human body. Graham objected to the testimony and on October 23, 2009, the ALJ entered an order barring Jackson from testifying. The Department filed an interlocutory appeal to the Commission, which reversed the ALJ's ruling.

Evidentiary hearings before the ALJ followed. At the hearings, the State presented evidence indicating that on August 25, 2008, Graham was randomly selected for drug testing. Principal Investigator Jeffrey McCart (McCart) instructed Senior Investigator Eugene Johnson (Johnson) to obtain a urine sample from Graham. At approximately 8:30 a.m., Johnson called and asked to speak to Lieutenant Walters (Walters), who was Graham's shift supervisor that day.

Walters was on another phone call. Johnson then asked to speak with Graham, and Graham picked up the phone. Johnson told Graham to report to his office to provide a urine sample. According to Johnson, Graham replied, "Okay." However, Graham did not report to Johnson's office as directed. Around 10:30 a.m., Graham went to Walters and asked if he could go home because he was not feeling well. Graham then left the SSCF.

When Graham failed to appear and provide the urine sample, Johnson contacted McCart, who instructed him to inform Captain James Atkinson (Atkinson). Jackson called Atkinson, who spoke with Walters and learned that Graham had gone home sick. Atkinson told Walters that Graham had been instructed to provide a urine sample.

Atkinson tried to call Graham. He had three different telephone numbers that Graham had provided. Atkinson called two of the numbers and left voice mail messages instructing Graham to contact him at the SSCF. Atkinson called the third number and spoke with Graham's mother. Atkinson told her he was trying to get in touch with her son. She said she would attempt to contact her son and tell him to call Atkinson. Graham's mother later called Atkinson and said she had been unable to reach Graham.

Thereafter, Atkinson dispatched Lieutenant Dennis Bindewald (Bindewald) and Captain Allen Sheppard, Jr. (Sheppard) to Graham's residence to direct him to return to the SSCF. Sheppard rang the doorbell at Graham's home and knocked on the front door, but no one answered. Sheppard noticed that Graham's pick-up truck was in the driveway. Sheppard and Bindewald remained at Graham's house for about five minutes and returned to the SSCF. They left a note on the door telling Graham to contact the shift commander at the SSCF immediately.

Graham denied receiving Johnson's calls or any subsequent orders from his superiors to contact or immediately return to the SSCF. Graham said that he suffers from high blood pressure and cholesterol and had a stroke in 1995. He testified that on August 25, 2008, around 8:00 a.m., he began to feel lightheaded and had trouble focusing. He requested leave, which was granted. Graham left the SSCF and drove himself to his doctor's office. The doctor changed Graham's blood-pressure medication.

Graham left the doctor's office and went home. He said that he closed the doors, shut the blinds, turned on the air conditioner and television and fell asleep until 7:00 p.m. on August 26. Graham claimed that he did not recall making or receiving any cell phone calls or checking his cell phone messages. However, Graham's cell phone records, which the Department subpoenaed from Graham's service provider, indicated that Graham's cell phone had been used to make outgoing calls and to check voice mail messages during the time he claimed to be sleeping.

Graham's former girlfriend came to his home around 7:00 p.m. on August 26. Graham said that, at this time, he found the note that Sheppard and Bindewald posted on his door. Graham did not, however, immediately contact the SSCF. He reported to work on August 27, and he provided a urine sample. The results were negative for any controlled substances.

The ALJ found that Graham received the August 25, 2008 order to provide a urine sample, despite Graham's claim to the contrary. The ALJ accepted Johnson's testimony that he had spoken with Graham and told him that he had to provide the sample. The ALJ determined that Johnson's version of the events "was believable and credible." The ALJ said that there was no proof that Johnson had manipulated the list of persons selected for drug testing in order to "get" Graham.

The ALJ additionally found that Graham violated Atkinson's telephone directives to call the SSCF immediately and report for the drug test. The ALJ noted that Graham had denied receiving Atkinson's voice mail instructions but there was "overwhelming evidence" to the contrary. The ALJ rejected Graham's assertion that he was in an "almost blackout condition" from noon on August 25, 2008 to 7:00 p.m. on August 26, 2008. The ALJ stated that Graham had not submitted any medical proof to establish that his "blood pressure medication would cause this type of response."

The ALJ also noted that Graham's telephone records "completely" contradicted his testimony because they indicated that Atkinson phoned Graham at 9:30 a.m. on August 25 and left a voice mail message. Atkinson called about six minutes later and left another voice mail message. Graham checked his voice mail about two minutes later. Atkinson called again around 11:30 a.m. and left another voice message. Graham checked the voice mail two minutes later.

The phone records also indicated that Atkinson had called Graham's mother, as Atkinson had testified. The records showed that Graham's mother called Graham immediately after Atkinson's call and left a voice message. According to the phone records, Graham checked his voice mail shortly thereafter.

The ALJ found that the evidence established that Graham was "awake, functioning and coherent enough to operate his voicemail" in the time he said he was sleeping. The ALJ stated that Graham's behavior was not the "behavior of someone who was passed out." The ALJ noted that it was unbelievable that Graham had passed out for an entire twenty-four to thirty-hour period while at the same time making phone calls and checking his voice mail messages.

The ALJ concluded that the Department's charges of insubordination and conduct unbecoming a public employee had been sustained. The remaining charges was deemed to be "duplicative and merged." The ALJ determined that progressive discipline was not warranted and upheld Graham's removal. The ALJ pointed out that the Department's drug-testing policy provided that covered personnel who refuse to submit to a drug test when ordered "shall be terminated from employment and permanently barred from future law enforcement employment in New Jersey."

The ALJ additionally determined that sanctions should be imposed on the Department pursuant to N.J.A.C. 1:1-14.14(4) for failing to present expert testimony in the case. The ALJ said that the Department's failure to produce Jackson was "inexcusable" and the Department had not provided timely notice that he would not be testifying. The ALJ stated that Graham's counsel should be reimbursed for the costs incurred in preparing to cross-examine Jackson, and for the appearance fee and report prepared by Graham's expert.

Graham filed exceptions to the ALJ's decision upholding his removal, and the Department filed exceptions challenging the ALJ's decision to impose sanctions upon it. The Commission issued a final decision dated March 18, 2011. The Commission accepted and adopted the ALJ's findings of fact and determination upholding Graham's removal but rejected the ALJ's decision to impose sanctions upon the Department. This appeal followed.

Graham argues that: (1) the ALJ and the Commission erred by failing to follow progressive discipline and removal is not the "proportional penalty" for the "alleged offense" in view of his "clean disciplinary record"; (2) the ALJ's findings of fact were arbitrary, capricious and unreasonable; (3) the ALJ and the Commission acted arbitrarily and capriciously by ignoring testimony about protocol, chain of command and operation of a para-military organization; and (4) the Commissioner acted against the weight of the credible evidence when it overturned the sanctions that the ALJ imposed upon the Department.

We have carefully considered the record and conclude that Graham's arguments are entirely without merit. We affirm substantially for the reasons stated by the Commission in its final decision. R. 2:11-3(e)(1)(D). We add the following.

It is well established that "[i]n light of the executive function of administrative agencies, judicial capacity to review administrative actions is severely limited." In re Musick, 143 N.J. 206, 216 (1996). We will intervene "only in those rare circumstances in which an agency action is clearly inconsistent with its statutory mission or other state policy." Ibid.

Our review of a final decision of an administrative agency is limited to three inquiries: (1) whether the agency's action is consistent with the applicable law; (2) whether there is substantial credible evidence in the record to support the factual findings upon which the agency acted; and (3) whether, in applying the law 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. (citing Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963)).

Furthermore, when reviewing an agency's factual finding, "an appellate court may not 'engage in an independent assessment of the evidence as if it were the court of first instance.'" In re Taylor, 158 N.J. 644, 656 (1999) (quoting State v. Locurto, 157 N.J. 463, 471 (1999)). The findings of fact made by an administrative agency are binding on appeal if they are supported by substantial, credible evidence. Id. at 656-57 (citing Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)).

We are satisfied that there is sufficient credible evidence in the record to support the Commission's determination that the Department's charges of insubordination and conduct unbecoming a public employee had been sustained. The Commission noted that the ALJ's factual findings on the charges were entitled to deference because they were substantially influenced by the ALJ's opportunity to hear the testimony and observe the witnesses testify. Taylor, supra, 158 N.J. at 660 (citing Locurto, supra, 157 N.J. at 474).

The Commission also noted that the ALJ's factual findings were supported by credible evidence. The Commission observed that Graham's claim that he essentially blacked out for an entire day was "inherently incredible" in view of the telephone records, which indicated that Graham made outgoing calls and received numerous voice mail messages from Atkinson, which he checked and then ignored.

The Commission found it was unacceptable for Graham to leave work and remain out from work on the following day after being told he had been selected for random drug testing and repeatedly ordered to contact the institution immediately. The Commission stated that Graham's "actions clearly constitute conduct unbecoming a public employee and insubordination." The record supports the Commission's determination.

We are additionally satisfied that the Commission did not act arbitrarily, capriciously or unreasonably when it decided that Graham's removal from his position as corrections sergeant was the appropriate penalty. The Commission correctly pointed out that progressive discipline is not "a fixed and immutable rule to be followed without question." In re Carter, 191 N.J. 474, 484 (2007). Indeed, "some disciplinary infractions are so serious that removal is appropriate notwithstanding a largely unblemished prior record." Ibid.

The record supports the Commission's determination that the charges at issue here are serious and removal is appropriate, particularly in view of the fact that Graham held a position as corrections sergeant in a State correctional facility. Moreover, the Department's policy provides that termination will result if a covered employee fails to submit to a drug test when ordered to do so.

We are also satisfied that the Commission's decision to set aside the sanctions imposed upon the Department was not arbitrary, capricious or unreasonable. Here, the Commission stated that, while the Department did not provide Graham's counsel with timely notice of its intention to forgo expert testimony, the Department had not acted intentionally.

The Commission noted that the Department's failure to present the expert as a witness was due to the witness's unavailability. The Commission also noted that Graham was not prejudiced by the Department's failure to present expert testimony. Graham's expert testified at the hearing and gave un-rebutted testimony.

We have considered Graham's other contentions and conclude that they are without sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E).