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December 9, 2014


Submitted November 13, 2014 Decided

Before Judges Alvarez and Maven.

On appeal from the New Jersey Civil Service Commission, No. 2012-1355.

Fusco & Macaluso Partners, LLC, attorneys for appellant Patricia Kines (Amie E. Dicola, on the briefs).

Anna P. Pereira, Corporation Counsel, attorney for respondent City of Newark (Alison Brown Jones, Assistant Corporation Counsel, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent New Jersey Civil Service Commission (Pamela N. Ullman, Deputy Attorney General, on the statement in lieu of brief).


Patricia Kines, a twenty-four-year veteran with the Newark Police Department's Communication Unit, appeals from the July 31, 2013 final decision of the Civil Service Commission (the Commission) imposing two thirty-working-day suspensions as penalties for excessive absenteeism, N.J.A.C. 4A:2-2.3(a)(4). We affirm.

We briefly summarize the record developed during the hearing that followed transmission of the matter to the Office of Administrative Law (OAL) under the Administrative Procedure Act, N.J.S.A. 52:14B-1 to -15, and the Uniform Administrative Procedure Rules, N.J.A.C. 1:1-1.1 to -21.6. Sergeant James Lopez testified that in 2008, Kines took a total of twenty-four days of sick time, which were combined with scheduled days off, or a Friday, Saturday, Sunday, or Monday, thereby extending Kines's off-days. In 2009, in addition to taking almost four months of sick days because of a slip and fall while on duty, Kines again took additional days which resulted in her being "counseled about her sick time" on June 27, 2009.

Less than a year later, on February 2, 2010, because Kines had taken an additional twelve days on five separate occasions during the six months that followed her counseling, she was placed on the "medical certification list," requiring her to produce a doctor's note for any sick day. Lopez considered the sick days to be suspect because they bordered scheduled days off.

Sergeant Grissel Nieves-Hall testified that in 2010, during a nine-month period, Kines took eleven days of sick time. Nieves-Hall also noted that the sick days extended days she already had off on most of those occasions. In January 2011, Kines was notified of an incipient disciplinary investigation into her absences.

Sergeant Louis Mendez reviewed Kines's sick leave covering the period after she was placed on medical certification. Since that date, she had called out sick twenty-seven days in 2010, and an additional twenty-one days since she was charged for the earlier absences on January 14, 2011, for a total of forty-eight days through June 30, 2011. Kines had actually called in sick thirteen days in the three months before she was charged, and twelve days in the three months after she was charged. Mendez opined that twenty-one sick days over a six-month period was excessive. As a result, he recommended that she be charged.

Kines testified that once she was placed on the medical certification list, she always provided doctors' notes for each sick day that she used. She explained that she suffers from a number of chronic conditions that make it impossible for her not to take sick leave, ranging from asthma to persistent chronic pain from the slip and fall. Kines occasionally takes painkillers for the condition which make her too drowsy to work. She is allergic to penicillin and many of the antibiotics she has been previously prescribed are no longer effective.

Before 2009, Kines had the following disciplinary actions taken against her: three for "inefficiency," two regarding sick leave, two for "accessibility," and one AWOL complaint. Her prior disciplinary history extended from 2000 to 2007.

The administrative law judge (ALJ) found that Kines was genuinely unable to perform her duties during the time period in question, specifically concluding that she did not take sick leave "to extend days she already had off." He also considered her prior disciplinary history not to be significant, as she was only counseled for chronic inefficiency and excessive absenteeism. Applying the doctrine of progressive discipline, he ruled that one thirty-day suspension, not the two periods imposed by the Department, sufficed as discipline.

The Commission disagreed, as a threshold issue, because progressive discipline is not an immutable rule to be followed without question, relying upon Carter v. Bordentown, 191 N.J. 474 (2007). Additionally, the Commission observed that the two thirty-working-day suspensions dovetailed with the "two separate periods of time where the appellant's chronic and excessive absenteeism unduly burdened the appointing authority and her fellow Police Officers." Appellant was counseled regarding her use of sick leave both on June 27, 2009, and again on February 5, 2010, then placed on the medical certification list three days later. Nonetheless, her absenteeism did not improve over the subsequent six months.

Moreover, contrary to the ALJ's conclusion, the Commission found that appellant's absences strained the appointing authority. The Commission stated: "attendance at work is the most basic duty of an employee, especially in the area of public safety, and employees who cannot maintain an acceptable attendance record can expect to be subject to disciplinary action, up to and including removal." Because chronic absenteeism significantly affects efficiency and morale, the Commission reinstated the initial penalty of two thirty-working-day suspensions. Additionally, the Commission observed that as a police officer, Kines is held to a higher standard of duty that requires the utmost integrity and dependability. This appeal followed.

Kines contends the Commission erred by reinstating the two thirty-day periods, which she asserts was excessive because her absences had no negative impact on the Police Department's functioning. She also argues that the discipline is unwarranted in light of the nature of the offense given the concept of progressive discipline, and that the ALJ found that she was not taking sick days to intentionally extend her time off. Kines characterizes her absences as one period of misconduct for which only one corresponding penalty should be imposed. Kines further asserts that since she provided a doctor's note for each absence and could not improve her sick time usage after she was on the medical certification list, she has demonstrated that her absences resulted from genuine health issues beyond her control.

Our role in reviewing administrative agency decisions is limited. In re Stallworth, 208 N.J. 182, 194 (2011). We affirm such decisions where they are supported by the evidence, even if we may question the wisdom of the decision or would have reached a different result. Ibid. 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). An agency's factual findings are binding upon us when supported by adequate, substantial, and credible evidence. We reverse an agency's decision only if we find it to be "arbitrary, capricious, or unreasonable, or [] not supported by substantial credible evidence in the record as a whole." Stallworth, supra, 208 N.J. at 194 (internal quotation marks omitted). The burden of establishing that agency action is arbitrary, capricious, or unreasonable is on the appellant. Bueno v. Bd. of Trs., 422 N.J. Super. 227, 234 (App. Div. 2011).

In determining whether agency action is arbitrary, capricious, or unreasonable, we ask if it violates express or implied legislative policies, if the record contains substantial evidence supporting the findings on which the agency based its action, and whether in applying the legislative policies to the facts, the agency erred in reaching a conclusion that could not have been reasonably reached. Stallworth, supra, 208 N.J. at 194.

We do not agree with Kines that the availability of overtime funding means her absences did not impose a burden on her department. To the contrary, the difference between overtime and ordinary wages is enough that an employee's consistent absenteeism, requiring overtime or rescheduling of employees, imposes an obvious strain on the system. As the officers who testified on behalf of the Department said, there are serious problems associated with chronic absenteeism, particularly in Kines's unit, the Communications Department, which staffs dispatch and 9-1-1 lines. A schedule disruption can require an employee to simultaneously answer multiple police channels if the position cannot be filled at the last minute.

In any event, the Commission clearly based its findings on substantial evidence in the record. Nothing in its final decision violates any express or implied legislative policies. It did not err in applying legislative policies to the facts.

Kines's periods of absenteeism extended over a course of months after she was counseled for her conduct. That alone warrants the City's imposition of two suspensions, as they mirror two separate time periods during which Kines was warned against additional absences.

Progressive discipline itself is not "a fixed and immutable rule" when "[serious] disciplinary infractions" are at issue. Stallworth, supra, 208 N.J. at 196. The Commission was well within its discretion to reject application of the doctrine in this case, not only because it is not an immutable principle, but because of Kines's status as a police officer and the fact that, years prior, she had received a twenty-day suspension for chronic absenteeism.

Thus we are satisfied that the evidence and inferences drawn therefrom support the Commission's decision. See Campbell v. N.J. Racing Comm'n, 169 N.J. 579, 587 (2001). The Commission's decision was neither mistaken not plainly unwarranted. The interests of justice do not demand intervention and correction. See id. at 587-88.