IN THE MATTER OF JOAO BARBOSA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0T1

IN THE MATTER OF JOAO BARBOSA,

CITY OF NEWARK, POLICE DEPARTMENT.

__________________________________

May 20, 2015

Submitted December 8, 2014 Decided

Before Judges Lihotz and Rothstadt.

On appeal from the Civil Service Commission, Docket No. 2012-2798.

Fusco and Macaluso Partners, LLC, attorneys for appellant Joao Barbosa (Darryl M. Saunders and Amie E. DiCola, on the briefs).

Anna P.Pereira, CorporationCounsel, attorney for respondent City of Newark (Kenneth G. Calhoun, Assistant Corporation Counsel, on the brief).

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

PER CURIAM

Appellant, Joao Barbosa, a former Newark police officer, appeals from respondent Civil Service Commission's (CSC) final agency determination upholding appellant's termination from his employment based upon his repeated violation of respondent, City of Newark's police department's sick leave policy. On appeal, he argues his termination was excessive punishment and violated Attorney General guidelines. We disagree and affirm.

We discern the undisputed facts from the evidence presented at appellant's hearing before an administrative law judge (ALJ).

On December 19, 2011, appellant was scheduled to work the night shift. He did not report for work, but notified the department he would be out sick due to a migraine headache. On the same night, another police officer saw appellant at a local bar, although he did not see appellant drinking or behaving in an intoxicated manner.

This was the third time appellant called out sick when he was not ill or otherwise incapacitated. The department suspended appellant for ten days after his first violation, and sixty days after the second. After this third episode, an internal investigation into appellant's conduct ensued.

Appellant did not deny the allegations. Rather, he explained that after he called out sick at 10:00 p.m., he started to feel better. He believed that if he went out that night he would feel even better. However, appellant understood, that if he did go out after calling out sick, he would be in violation of the department's policy because he was obligated to report to work if he felt better.

After completing its investigation, the department served appellant with a preliminary notice of disciplinary action, alleging he violated various regulations. Specifically, the notice stated he violated the prohibition against (1) an officer leaving his or her residence after calling out sick without permission of a department physician; (2) an officer feigning illness; (3) having unauthorized absences, which occur when an officer absents himself or herself from duty in an improper manner; and (4) malingering. In response, appellant requested a departmental hearing, which was granted. After the hearing, the department sent appellant a notice of its final determination sustaining the charges against him and terminating appellant from his position as a police officer. Appellant appealed that determination by requesting a hearing before an ALJ.

At the hearing before the ALJ, three police officers from the department and appellant testified. The ALJ considered the evidence and found appellant "feigned a migraine headache" and appellant "was less than truthful with his supervisor." As a result, the ALJ found appellant violated each of the regulations and, based on his prior history of similar conduct, appellant's termination was warranted. The CSC later reviewed the record, accepted and adopted the ALJ's findings and conclusions, including appellant's removal from his position.

We have "a limited role" in the review of final administrative agency decisions. In re Stallworth, 208 N.J. 182, 194 (2011) (citation and internal quotation marks omitted). "In order to reverse an agency's judgment, an appellate court must find the agency's decision to be 'arbitrary, capricious, or unreasonable, or [ ] not supported by substantial credible evidence in the record as a whole.'" Ibid. (alteration in original) (citations and internal quotation marks omitted). 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. Ibid.

"The application of those principles is not limited to whether a violation warranting discipline has been proven; this deferential standard applies to the review of disciplinary sanctions as well." Id. at 195 (citations and internal quotation marks omitted). In the context of sanctions imposed after a public employee's disciplinary hearing, we will not disturb the penalty unless it is "so utterly disproportionate to the offense as to amount to a clear abuse of discretion." City of Newark v. Massey, 93 N.J. Super. 317, 324-25 (App. Div. 1967) (citation and internal quotation marks omitted). "Accordingly, when reviewing administrative sanctions, appellate courts should consider whether the punishment is so disproportionate to the offense, in the light of all of the circumstances, as to be shocking to one's sense of fairness." Stallworth, supra, 208 N.J. at 195 (citation and internal quotation marks omitted). "'If a reviewing court concludes that a decision of the [CSC] is arbitrary, the court may either finally determine the matter by fixing the appropriate penalty or remand it to the [CSC] for redetermination.'" Id. at 194 (citations and internal quotation marks omitted).

The CSC has the authority to employ a variety of disciplinary sanctions, including the removal of an employee, in appropriate circumstances. N.J.S.A. 11A:2-6(a). An ALJ's factual findings and legal conclusions are not "binding upon [the CSC], unless otherwise provided by statute." N.J.A.C. 1:1-18.1(c). Accordingly, the CSC reviews an ALJ's decision "de novo . . . based on the record" before the ALJ. See In re Parlow, 192 N.J. Super. 247, 248 (App. Div. 1983). The CSC may reject or modify legal conclusions as well as fact findings unrelated to witness credibility, but must state its reasons for doing so. N.J.S.A. 52:14B-10(c); N.J.A.C. 1:1-18.6(b).

Appellant argues the CSC's acceptance of the penalty imposed by the ALJ was "disproportionate . . . when compared to the totality of the circumstances." He specifically argues that his "violation and history was not so egregious that it warranted ignoring the concept of progressive discipline." We disagree.

The underpinning of the concept of progressive discipline in public employmentis that a proposed sanction need not be based "on the severity of the current infraction alone." In re Carter, 191 N.J. 474, 483 (2007). Rather, the "appropriate penalty for a subsequent offense" may be based upon the employee's prior discipline for the same or other offenses. Ibid. "Thus, a dismal disciplinary record can support an appointing authority's decision to rid itself of a problematic employee based on charges that, but for the past record, ordinarily would have resulted in a lesser sanction." Stallworth, supra, 208 N.J. at 196 (citations and internal quotation marks omitted).

[A]lthough a single instance of aberrant conduct may not itself be sufficient for dismissal, numerous occurrences over a reasonably short space of time, even though sporadic, may evidence an attitude of indifference amounting to a neglect of duty and, thus, constitute sufficient grounds for termination . . . . [A]n employee's past record could properly be considered in fashioning the appropriate penalty for the current specific offense . . . . [P]ast record [is defined] as an employee's reasonably recent history of promotions, commendations and the like on the one hand and, on the other, formally adjudicated disciplinary actions as well as instances of misconduct informally adjudicated, so to speak, by having been previously called to the attention of and admitted by the employee.

. . . .

[T]he concept of progressive discipline has been utilized in two ways: (1) to ratchet-up or support imposition of a more severe penalty for a public employee who engages in habitual misconduct; and (2) to mitigate the penalty for an employee who has a record largely unblemished by significant disciplinary infractions. On the other hand, progressive discipline is not a fixed and immutable rule to be followed without question because some disciplinary infractions are so serious that removal is appropriate notwithstanding a largely unblemished prior record. Thus, progressive discipline has been bypassed when an employee engages in severe misconduct, especially when the employee's position involves public safety and the misconduct causes risk of harm to persons or property.

[Id. at 195-97 (citations and internal quotation marks omitted).]

Progressive discipline is not necessary "when the misconduct is severe, when it is unbecoming to the employee's position or renders the employee unsuitable for continuation in the position, or when application of the principle would be contrary to the public interest." In re Herrmann, 192 N.J. 19, 33 (2007).

The imposition of sanctions upon police officers warrants special consideration. "In matters involving discipline of police . . . officers, public safety concerns may also bear upon the propriety of the dismissal sanction." Carter, supra, 191 N.J. at 485 (citations omitted). "[A] police officer is a special kind of public employee. His primary duty is to enforce and uphold the law. . . . He represents law and order to the citizenry and must present an image of personal integrity and dependability in order to have the respect of the public." Id. at 486 (citation and internal quotation marks omitted).

Applying these considerations to the facts found by the ALJ and adopted by the CSC, we conclude appellant's arguments lack merit. The ALJ and the CSC appropriately considered not only the nature of appellant's violation but also, under the theory of progressive discipline, his past record for violating the same offenses and his sanctions for each one. Importantly, the ALJ and the CSC relied upon appellant's inability to be truthful about his conduct, especially as it related to his position as a police officer. Under all of the circumstances, we do not find appellant's termination to be shocking or unfair.

Affirmed.