IN THE MATTER OF DANIEL WILKINSON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-02355-11T1

IN THE MATTER OF DANIEL WILKINSON.

___________________________________

February 24, 2014

 

Submitted October 23, 2013 Decided

 

Before Judges Grall, Waugh, and Accurso.

 

On appeal from the Civil Service
Commission, CSC Docket No. 2009-4276.

 

Nash Law Firm, LLC, attorneys for appellant Daniel Wilkinson (William A. Nash, on the briefs).

 

John J. Hoffman, Acting Attorney General, attorney for respondent New Jersey Department of Human Services, Ancora Psychiatric Hospital (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Brandon Hawkins, Deputy Attorney General, on the brief).

 

PER CURIAM

Appellant Daniel Wilkinson appeals the final administrative action of respondent New Jersey Civil Service Commission (Commission) removing him as an employee of respondent New Jersey Department of Human Services (Department). We affirm.

I.

We discern the following facts and procedural history from the record on appeal.

Wilkinson was employed at Ancora Psychiatric Hospital (Ancora) from 1999 until 2008, when he was terminated for physical abuse of a patient and conduct unbecoming a public employee. Wilkinson had previously been the subject of two major disciplinary actions, as well as several minor disciplinary actions.

J.M., the alleged victim of the physical abuse, is a psychiatric patient at Ancora. He has a history of assaultive behavior and has used sharp objects as weapons in the past. He has committed acts such as attempting to stab a patient with a fork, kicking a nurse in the groin, attacking patients with a pen, and scratching and hitting patients and staff members.

On September 7, 2008, Wilkinson was assigned to monitor Ward B in Cedar Hall. At approximately 5:30 a.m., the fire alarm sounded and all patients were required to gather in the Day Room. J.M. refused to go to the Day Room and stood by the doorway.

As he was standing in the doorway, J.M. cursed and threatened patients and staff. He held his hands up with clenched fists. Wilkinson attempted to calm J.M., but was unsuccessful. The charge nurse eventually ordered a "code blue" (a designation for a psychiatric emergency requiring immediate attention) and ordered that J.M. be placed in restraints.

The events that precipitated the code blue, and whether Wilkinson pushed J.M. before or after the code blue, are disputed. Wilkinson, who did not testify at the subsequent hearing, argues that, as he was attempting to implement the code blue, J.M. grabbed the keychain attached to his waistband. He further contends that, in an attempt to disarm J.M. and retrieve his keys, he pushed J.M. away from him. According to the Commission, Wilkinson was the aggressor and handled the situation so incorrectly that his conduct was abusive. It is undisputed that J.M suffered no actual physical harm as a result of the push.

The Department conducted an investigation after J.M.'s relative expressed concern about bruising.1 As a result of the investigation, the Department served Wilkinson on September 24 with a preliminary notice of disciplinary action, charging him with physical abuse of a patient, contrary to N.J.A.C. 4A:2-2.3(a)(12)2 and the Department's Administrative Order 4:08 C-3.1, and conduct unbecoming a public employee, contrary to N.J.A.C. 4A:2-2.3(a)(6) and the Department's Administrative Order 4:08 E-1.3. He was suspended at that time.

There was a departmental hearing in May 2009. On June 5,the Department served a final notice of disciplinary action sustaining all of the charges and removing Wilkinson from employment as of September 24, 2008, the date of his suspension. Wilkinson appealed to the Commission, which transferred the matter to the Office of Administrative Law (OAL) as a contested case.

Before the hearing at the OAL, Wilkinson moved to dismiss the charges or, in the alternative, to exclude the video surveillance footage on grounds of spoliation of evidence because some video surveillance evidence was no longer available. The administrative law judge (ALJ) conducted an initial hearing on Wilkinson's application and denied relief. He found that, although the video from one surveillance camera had been reviewed and destroyed as a regular business practice, there was no malicious intent and the video surveillance footage destroyed was not material to the issues in the case.

The OAL hearing on the merits was held on six days over seven months in 2010. Jeanne Coffee-Senkovich, the quality assurance specialist who conducted the investigation, testified about the nature and findings of her investigation, which included reviewing documents, the videos, and interviews.

Bruce Williams, a program coordinator, testified about Ancora's policies governing the interaction of patients and staff. He testified that Wilkinson had been trained on how to handle an agitated patient. According to Williams, based on his review of the surveillance videos and his experience and training, Wilkinson should have backed away if he thought J.M. was agitated. He stated that pushing a patient the way Wilkinson did is not permitted and violated the departmental regulations at issue.

James Tornatore, a risk management investigator, testified about his interview of Andre Ausby, who had been assigned to manage and observe J.M. on a "one-to-one" basis at the time of the incident in dispute. According to Ausby, Wilkinson walked up to J.M. and pushed him.

Two other employees who were in the area when the incident took place testified for Wilkinson, but neither of them actually witnessed the initial contact between Wilkinson and J.M. Wilkinson did not testify on his own behalf.

The ALJ issued his initial decision on October 18, 2011. Although he characterized the video as "far from a perfect specimen," "grainy" and lacking audio, and "at so low a frame rate . . . as to render the viewing choppy at best," he nevertheless determined that it provided the "best evidence" of the event. He found that Wilkinson did not physically abuse J.M. and that the Department did not meet its burden of "demonstrating that [Wilkinson] acted in a manner consistent with a finding of conduct unbecoming."

The Department filed exceptions to the initial decision and Wilkinson filed cross-exceptions. The Commission considered the case on November 22. After reviewing the ALJ's initial decision and independently reviewing the record, including the video evidence, the Commission declined to adopt the ALJ's recommendation that the removal be reversed. Instead, in a final decision dated December 9, the Commission concluded that the Department had sustained the charges and entered the final administrative action terminating Wilkinson.

In making its decision, the Commission emphasized that "employees in psychiatric institutions are expected to exercise appropriate self-restraint when working with patients who cannot necessarily exercise personal restraint due to their conditions." The Commission determined that J.M. did not grab Wilkinson's keys prior to the push, but that, even if he had, a push was not a "necessary or appropriate response" to J.M.'s action.

Based on its review of the videotape and the record, the Commission made the following findings:

1. On September 7, 2008, in the hallway prior to the incident, J.M. can be seen exiting his room in the presence of Ausby, who appears to be attempting to persuade J.M. to move to the day room. [Wilkinson], who is walking down the hallway, walks in between Ausby and J.M. and exchanges words with J.M. Although [Wilkinson] proceeds past J.M. and Ausby, he turns around and returns to the area.

 

2. J.M. enters the day room with Ausby, when [Wilkinson] again enters the day room and exchanges words with J.M. Both [Wilkinson] and J.M. are gesturing during this exchange.

 

3. [Wilkinson] exits the day room and returns a few seconds later with Allen. At this point, [Wilkinson] and Allen walk past J.M. to the middle of the room.

 

4. [Wilkinson] turns toward J.M. while in the middle of the day room and appears to be speaking and gesturing to J.M.

 

5. [Wilkinson] walks toward J.M. J.M.'s hands are in front of him, with his right hand on the right side of his chest and his left hand across his waist near his abdomen.

 

6. J.M. moves slightly toward [Wilkinson], and [Wilkinson] leans forward and pushes J.M. strongly, propelling him backward. What appears to be [Wilkinson's] keychain is visible at this moment while [Wilkinson] and J.M. are separating.

 

7. Ausby steps in between [Wilkinson] and J.M., and [Wilkinson] and Ausby proceed to restrain J.M.

 

The Commission then explained in considerable detail the observations it made while reviewing the video evidence. After explaining that it disagreed with the ALJ's characterization of the videos which it was able to watch in "real-time" by adjusting the speed, the Commission made the following additional findings:

All three Commission members present at the meeting agreed that the videotape captured sufficient visual evidence which demonstrated that [Wilkinson] was the aggressor in this situation and . . . that his actions rose to the level of physical abuse. Further, notwithstanding J.M.'s conduct toward [Wilkinson], employees in psychiatric institutions are expected to exercise appropriate self-restraint when working with patients who cannot necessarily exercise personal restraint due to their conditions.

 

The Commission emphasizes that [Wilkinson]'s actions, as captured on the videotape, are not consistent with the claims that he was attempting to restrain J.M., as allegedly ordered by Allen, or that he was attempting to disarm J.M., who had allegedly grabbed [Wilkinson]'s keys. Initially, before [Wilkinson] returns to confront J.M., Allen can be seen walking away with her back turned, which is inconsistent with the claim that she ordered [Wilkinson] to restrain J.M. The video contains visual evidence that [Wilkinson] pushed J.M. away from him with significant force; clearly, if [Wilkinson] was attempting to restrain J.M., he would not have done so in a way that moved the patient away from him. Further, while the video reflects that [Wilkinson]'s retractable keychain was extended between him and J.M. while the two separated after the push, there is no evidence that J.M. attempted to grab the keys prior to the push. In this regard, when [Wilkinson] and J.M. approach each other, J.M.'s right hand is resting on the right side of his chest, and his left arm, which was closest to the area of [Wilkinson]'s keys, was [lying] across his abdomen, his hand resting near his right hip. Even assuming, arguendo, that J.M. reached for [Wilkinson]'s keys prior to the push, the Commission is not convinced that the push was a necessary or appropriate response to the grabbing of the keys. It would seem that the more appropriate response would have been to focus on J.M.'s left hand and attempt to remove the keys from his hand. Further, it cannot be ignored that [Wilkinson] repeatedly placed himself in proximity to J.M. As [Wilkinson] did not testify, it is not clear why, if J.M. was being combative and directing insults toward him, he would continue to return to confront J.M., first in the hallway and then twice in the day room, rather than removing himself from the situation. The Commission finds that [Wilkinson] had every opportunity to avoid a physical confrontation with J.M., but he instead chose to continue to confront the agitated patient.

The Commission found that Wilkinson's actions constituted physical abuse. It concluded that the standard of malicious intent established in In re Taylor, 158 N.J. 644 (1999) was not applicable in this case because the definition of physical abuse had been changed to eliminate that requirement after Taylor was decided. The Commission also concluded that Wilkinson's physical abuse of J.M. amounted to conduct unbecoming a public employee. Finally, the Commission determined that Wilkinson's removal was appropriate under the circumstances, especially in light of his prior disciplinary history. This appeal followed.

II.

On appeal, Wilkinson argues that (1) the Commission's decision is arbitrary, capricious, and unreasonable, (2) the Commission misinterpreted the standards for finding "physical abuse" and "conduct unbecoming a public employee" as a matter of law, and (3) the penalty was inappropriate in the context of progressive discipline.

A.

Our scope of review of an administrative agency's final determination is limited. In re Carter, 191 N.J. 474, 482 (2007). We accord a "strong presumption of reasonableness" to the agency's exercise of its statutorily delegated responsibilities. City of Newark v. Natural Res. Council, 82 N.J. 530, 539, cert. denied, 449 U.S. 983, 101 S. Ct. 400, 66 L. Ed. 2d 245 (1980). The burden of showing that the agency's action was arbitrary, unreasonable, or capricious rests upon the appellant. See Barone v. Dep't of Human Servs., Div. of Med. Assistance & Health Servs., 210 N.J. Super. 276, 285 (App. Div. 1986), aff'd, 107 N.J. 355 (1987).

The reviewing court "should not disturb an administrative agency's determinations or findings unless there is a clear showing that (1) the agency did not follow the law; (2) the decision was arbitrary, capricious, or unreasonable; or (3) the decision was not supported by substantial evidence." In re Virtua-West Jersey Hosp. Voorhees, 194 N.J. 413, 422 (2008); see also Circus Liquors, Inc. v. Governing Body of Middletown Twp., 199 N.J. 1, 9-10 (2009).

Absent arbitrary, unreasonable, or capricious action, or a lack of support in the record, "[a]n administrative agency's final quasi-judicial decision will be sustained." In re Herrmann, 192 N.J. 19, 27-28 (2007) (citing Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963)). The court "may not vacate an agency determination because of doubts as to its wisdom or because the record may support more than one result," but is "obliged to give due deference to the view of those charged with the responsibility of implementing legislative programs." In re N.J. Pinelands Comm'n Resolution PC4-00-89, 356 N.J. Super. 363, 372 (App. Div.) (citing Brady v. Bd. of Review, 152 N.J. 197, 210 (1997)), certif. denied, 176 N.J. 281 (2003).

In reviewing administrative adjudications, an appellate court must undertake 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) (citing Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85, 93 (1973)). "If the Appellate Division is satisfied after its review that the evidence and the inferences to be drawn therefrom support the agency head's decision, then it must affirm even if the court feels that it would have reached a different result itself." Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 588 (1988). If, however, our review of the record leads us to conclude that the agency's finding is clearly erroneous, the decision is not entitled to judicial deference and must be set aside. L.M. v. Div. of Med. Assistance & Health Servs., 140 N.J. 480, 490 (1995). We may not simply rubber-stamp an agency's decision. Taylor,supra, 158 N.J. at 657.

Although an appellate court is "in no way bound by the agency's interpretation of a statute or its determination of a strictly legal issue," Mayflower, supra, 64 N.J.at 93, if substantial evidence supports the agency's decision, "a court may not substitute its own judgment for the agency's even though the court might have reached a different result," Greenwood v. State Police Training Ctr., 127 N.J.500, 513 (1992) (citing Clowes, supra, 109 N.J.at 587).

 

B.

We start our analysis with the question of whether the Commission misapplied the law with respect to the terms "physical abuse" or "conduct unbecoming a public employee."

With respect to physical abuse, Wilkinson relies on Taylor, supra, 158 N.J. at 660-61, in which the Court reversed a finding of patient abuse because the ALJ made no finding that Taylor had acted "maliciously" or that he "intended to cause . . . pain." Wilkinson argues that a finding of physical abuse must, as a matter of law, be based on a determination that the employee acted with malice and intent to harm the patient.

At the time of the incident that gave rise to this matter, the Department's Administrative Order 4:08 defined "physical abuse" as

a physical act directed at an individual, patient, or resident of a type that could tend to cause pain, injury, anguish, and/or suffering. Such acts include, but [are] not limited to, the individual patient or resident being kicked, pinched, bitten, punched, slapped, hit, pushed, dragged, and/or struck, with a thrown or held object.[3]

 

In contrast, the definition at issue in Taylor defined physical abuse as "a malicious act directed toward a patient, resident, client, or employee with the intent to cause pain, injury, suffering or anguish." Taylor, supra, 158 N.J. at 660 (emphasis added).

Because the Court's decision in Taylor was based on the specific language of the prior definition, which is not in the current definition, we conclude that Wilkinson's reliance on Taylor is misplaced. That was the implicit view taken by the ALJ, and the explicit position adopted by the Commission.

Wilkinson also argues that his conduct did not amount to conduct unbecoming a public employee. As Wilkinson himself acknowledges, however, conduct unbecoming is "an elastic [phrase], that has been defined as any conduct which adversely affects the morale or efficiency of [an agency] or which has a tendency to destroy public respect for [agency] employees and confidence in the operation of [agency] services." Karins v. City of Atlantic City, 152 N.J. 532, 554 (1998) (citing In re Emmons, 63 N.J. Super. 136, 140 (1960)) (internal quotation marks and brackets omitted). A charge of conduct unbecoming may be satisfied if "the complained of conduct and its attending circumstances be such as to offend publicly accepted standards of decency." Ibid. (quoting In re Zeber, 156 A.2d 821, 825 (Pa. 1959)). Because (1) the Department has a policy "absolutely prohibit[ing]" patient abuse, and (2) pushing a patient falls within the Department's definition of patient abuse, we conclude that such conduct constitutes "conduct unbecoming."

C.

We now turn to Wilkinson's argument that the Commission's decision was arbitrary, capricious, and unreasonable. The focus of his argument concerns the Commission's rejection of the ALJ's factual conclusions.

An ALJ's factual findings and legal conclusions are not "binding upon [an] agency head, unless otherwise provided by statute." N.J.A.C.1:1-18.1(c). Accordingly, an agency head reviews an ALJ's decision "de novo . . . based on the record" before the ALJ. In re Parlow, 192 N.J. Super. 247, 248 (App. Div. 1983). However, "[a]n agency head reviewing an ALJ's credibility findings relating to a lay witness may not reject or modify these findings unless the agency head explains why the ALJ's findings are arbitrary or not supported by the record." S.D. v. Div. of Med. Assistance & Health Servs., 349 N.J. Super.480, 485 (App. Div. 2002). An agency head may only reject the ALJ's credibility findings after he or she determines "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." N.J.S.A.52:14B-10(c). In doing so, "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." Ibid.

Here, the Commission engaged in an independent assessment of the video evidence and reached a different conclusion than the ALJ. As the Supreme Court held in the context of a criminal case involving the voluntariness of a confession, a reviewing court does not owe the same level of deference to a motion judge's findings of fact if the judge's decision is based primarily on the judge's review of a video of the interrogation that can also be viewed by the appellate court. State v. Diaz-Bridges, 208 N.J. 544, 566 (2011). We assume, without deciding, that the principle established by Diaz-Bridges is at least as applicable in the context of an administrative agency's disagreement with an ALJ's factfinding, given the standard of review articulated in S.D.

Our review of the record, including the video evidence, satisfies us that the Commission's factual determinations are amply supported by the record. Although the video evidence is by no means crystal clear, the Commission's interpretation of the events at issue could fairly be derived from a careful review of that evidence. In addition, although Wilkinson declined to provide his own version of the events, Ausby's observation that Wilkinson approached J.M. and pushed him supports the Commission's decision.

D.

Finally, Wilkinson challenges the Commission's decision to impose the penalty of removal.

The Commission is authorized to "increase or decrease the penalty imposed by the appointing authority, but removal shall not be substituted for a lesser penalty." N.J.S.A. 11A:2-19. An appellate court can only modify a penalty if the Commission's determination was arbitrary, capricious, or unreasonable. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980) (citing Campbell, supra, 39 N.J. at 562). The same standard of deference applies to review of sanctions and penalties. Herrmann, supra, 192 N.J. at 28 (citing Knoble v. Waterfront Comm'n, 67 N.J. 427, 431-32 (1975)).

A reviewing court should alter a sanction imposed by an administrative agency 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. In light of the deference owed to such determinations, when reviewing administrative sanctions, the test [] 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 28-29 (citing In re Polk, 90 N.J. 550, 578 (1982)) (citations and internal quotation marks omitted).]

 

Progressive discipline has evolved in New Jersey to further shield public employees from arbitrary sanctions. Thurber v. City of Burlington, 387 N.J. Super. 279, 303 (App. Div. 2006) (citing West New York v. Bock, 38 N.J. 500, 522-24 (1962)), aff'd, 191 N.J. 487 (2007). Our Supreme Court discussed what should be considered in a progressive-discipline analysis:

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. Bock, supra, 38 N.J. at 524. This includes consideration of the totality of the employee's work performance, including all prior infractions. See Carter, supra, 191 N.J. at 484. As already noted, progressive discipline is a flexible concept, and its application depends on the totality and remoteness of the individual instances of misconduct that comprise the disciplinary record. The number and remoteness or timing of the offenses and their comparative seriousness, together with an analysis of the present conduct, must inform the evaluation of the appropriate penalty. Even where the present conduct alone would not warrant termination, a history of discipline in the reasonably recent past may justify a greater penalty; the number, timing, or seriousness of the previous offenses may make termination the appropriate penalty.

 

[In re Stallworth, 208 N.J. 182, 199 (2011).]

 

In imposing the penalty of removal, the Commission noted that Wilkinson had a record of disciplinary actions:

[Wilkinson]'s actions are sufficiently egregious and warrant his removal even without consideration of his prior employment record. Nevertheless, in this case [his] employment record also reveals two major disciplinary actions (a 30-day suspension in 2002 for engaging in a verbal and physical altercation with a co-worker and a 53-day suspension in 2004 for . . . leaving his assigned work area without permission, falsification and negligence) and several minor disciplines [sic] since his employment commenced in 1999. Finally, as noted above, even if the Commission found that [Wilkinson]'s conduct did not rise to the level of patient abuse and was, rather, inappropriate physical contact, his actions, coupled with this disciplinary history, justify his removal.

 

[(Internal citations omitted).]

 

Wilkinson points to the fact that his most recent major disciplinary action prior to the incident that gave rise to this case occurred in 2004. That event, however, was only four years prior to the incident at issue here. We do not find such a limited time gap to be a compelling reason to forgo our traditional deference to the Commission's penalty decision. New Jersey has a strong public policy "protecting the mentally ill and developmentally disabled from abuse or mistreatment, to which they are particularly vulnerable, often being without the knowledge, ability, or resources to protect or vindicate their civil rights." Fees v. Trow, 105 N.J. 330, 338 (1987). Based upon the totality of the record, the penalty of removal was not disproportionate to the charge, especially in light of Wilkinson's disciplinary history.

Affirmed.

1 Although the investigation, which was not focused on the incident that gave rise to this case, revealed that J.M. exhibited some bruising, it was apparently not the result of the incident involving Wilkinson.

2 The notices of disciplinary action refer to N.J.A.C. 4A:2-2.3(a)(11), which was subsequently recodified as (a)(12). 44 N.J.R. 576(a) (Mar. 5, 2012).

3 The Department's Policy and Procedures for Reporting and Investigating Allegations of Patient Abuse and Professional Misconduct contains a similar, but not identical, definition. It defines "physical abuse" as

a physical act directed at a patient by an employee, volunteer, intern, or consultant/contractor of a type, that could tend to cause pain, injury, anguish, and/or suffering. Such acts include, but are not limited to, the patient being kicked, pinched, bitten, punched, slapped, hit, pushed, dragged and/or struck, with a thrown or held object.

 

[(Emphasis added).]