IN THE MATTER OF CAROL FOX, BOROUGH OF KEYPORT POLICE DEPARTMENT (NEW JERSEY CIVIL SERVICE COMMISSION) ( 2019 )


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  •                             NOT FOR PUBLICATION WITHOUT THE
    APPROVAL OF THE APPELLATE DIVISION
    This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
    internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
    SUPERIOR COURT OF NEW JERSEY
    APPELLATE DIVISION
    DOCKET NO. A-4092-17T3
    IN THE MATTER OF CAROL
    FOX, BOROUGH OF KEYPORT
    POLICE DEPARTMENT.
    _____________________________
    Submitted June 4, 2019 – Decided August 8, 2019
    Before Judge Hoffman and Geiger.
    On appeal from the New Jersey Civil Service
    Commission, Docket No. 2018-1033.
    Di Francesco Bateman Kunzman Davis Lehrer &
    Flaum, PC, attorneys for appellant Carol Fox (Richard
    Paul Flaum and Robert Philip Manetta, on the briefs).
    Mc Manimon Scotland & Baumann LLC, attorneys for
    respondent Borough of Keyport Police Department
    (Leslie G. London and Thaddeus John Del Guercio, on
    the brief).
    Gurbir S. Grewal, Attorney General, attorney for
    respondent Civil Service Commission (George Norman
    Cohen, Deputy Attorney General, on the statement in
    lieu of brief).
    PER CURIAM
    Carol Fox appeals from a final determination of the Civil Service
    Commission (Commission) terminating her position as a communications
    officer / dispatcher (dispatcher) with the Borough of Keyport Police Department
    (department) for leaving her dispatch post prior to her relief arriving, in violation
    of specific rules and department policies and practices.          The Commission
    adopted the decision of the Administrative Law Judge (ALJ). We affirm.
    Because ALJ Sarah G. Crowley comprehensively detailed the relevant
    factual and procedural history in her written opinion, we briefly recount those
    facts necessary to provide context for our decision.
    Fox was a dispatcher with the department for thirteen years. The duties
    of the dispatchers are to answer the telephone and dispatch police and fire
    departments to emergencies. Dispatchers also log every fifteen minutes what a
    prisoner is doing if there is a prisoner in the holding cell. It is undisputed that
    Fox left her post on July 26, 2017 prior to being relieved, leaving a prisoner and
    the emergency phone desk unattended.          Prior to leaving, the rules require
    dispatchers to wait for their relief and then provide an update on any
    developments that occurred during their twelve-hour shifts.
    A-4092-17T3
    2
    On August 29, 2017, Fox was served a Preliminary Notice of Disciplinary
    Action (PNDA) and was suspended with pay pending a Loudermill1 hearing for
    incompetency, inefficiency or failure to perform duties, chronic or excessive
    absenteeism or lateness, neglect of duty, and other sufficient causes in violation
    of N.J.A.C. 4A:2-2.3.
    A week later, Fox participated in a Loudermill hearing before the Keyport
    Borough Council.        The borough administrator issued a Final Notice of
    Disciplinary Action (FNDA) on September 20, 2017, imposing the penalty of
    removal and termination, effective immediately. Fox appealed her termination
    and the matter was transferred to the Office of Administrative Law (OAL) as a
    contested case.
    The ALJ presided over a one-day hearing. She considered testimony from
    seven witnesses, including Fox. In her written decision, the ALJ stated that Fox
    testified:
    She is familiar with the rules and regulations governing
    the department with respect to the job duties. . . .
    [Dispatchers] are required to fill in the log sheet with
    anything that happens. [Fox] was working . . . on July
    26, 2017. Her shift ended at 6:30 a.m. and [officers]
    Dixon, Salvatore, McCartin, and Hassmiller were in the
    office. She stopped and said goodbye to them and left.
    She never asked who was relieving her, and did not seek
    1
    Cleveland Bd. of Educ. v. Loudermill, 
    470 U.S. 532
    , 546 (1985).
    A-4092-17T3
    3
    permission to leave her post before her replacement
    arrived. She knew that the usual relief, Gallagher[,]
    was on vacation, but she did not know who was
    supposed to relieve her and she did not ask. She
    testified that she just assumed they knew someone
    needed to relieve the dispatch.
    . . . . [Fox] testified that [the officers in the office]
    should have known no one was at dispatch because she
    had said goodbye and Gallagher was off. She also said
    it was a onetime oversight.
    In her written decision, the ALJ determined that the department satisfied
    its burden of proof by a preponderance of the competent and credible evidence.
    She characterized all of the witnesses' testimony as "honest and sincere," and
    found "[t]he facts surrounding the charges are undisputed." Namely, Fox did
    "not dispute that she left her post at dispatch prior to being relieved on July 26,
    2017." The ALJ determined the "fact that she stopped and said good[]bye to
    everyone, including her supervisor does not relieve[] her of the obligation of
    waiting for relief before leaving her post."     The ALJ concluded that Fox's
    conduct was "in violation of the rules and regulations and engaged in
    incompetency, inefficiency, neglect of duty and other sufficient cause."
    The ALJ then determined that "the penalty of removal is appropriate given
    the egregious nature of the offense of just leaving an important post without
    securing relief, which could have resulted in life threatening consequence for
    A-4092-17T3
    4
    the public trying to call in an emergency and the prisoner who was left without
    supervision." In reaching this penalty, the ALJ cited several aggravating factors:
    One factor is that [Fox] continued to try to justify
    leaving her post by claiming she said good[]bye first
    and that it was a "one time" oversight. [Fox's seven]
    prior offenses of neglect of duty and/or incompetency
    are further aggravat[ing] factors.
    In considering the former charges against Fox for incompetency, inefficiency
    and neglect of duty in her analysis, the ALJ reasoned that an employee's "past
    record may be considered when determining the appropriate penalty for the
    current offense." (quoting In re Phillips, 
    11 N.J. 567
    , 581 (1990)).
    On April 6, 2018, the Commission adopted the ALJ's findings of fact and
    conclusions of law.
    On appeal, Fox contends the decision of the Commission to terminate her
    was arbitrary, capricious, and not reasonably proportional to the offense. We
    disagree.
    Appellate review of an administrative agency decision is limited. In re
    Herrmann, 
    192 N.J. 19
    , 27 (2007). A strong presumption of reasonableness
    attaches to the Commission's decision. In re Carroll, 
    339 N.J. Super. 429
    , 437
    (App. Div. 2001). Appellant has the burden to demonstrate grounds for reversal.
    McGowan v. N.J. State Parole Bd., 
    347 N.J. Super. 544
    , 563 (App. Div. 2002).
    A-4092-17T3
    5
    Appellate courts generally defer to final agency actions, only "reversing
    those actions if they are 'arbitrary, capricious or unreasonable or [if the action]
    is not supported by substantial credible evidence in the record as a whole.'" N.J.
    Soc'y for the Prevention of Cruelty to Animals v. N.J. Dep't of Agric., 
    196 N.J. 366
    , 384-85 (2008) (quoting Henry v. Rahway State Prison, 
    81 N.J. 571
    , 579-
    80 (1980) (alteration in original)).        Under the arbitrary, capricious, and
    unreasonable standard, our scope of review is guided by three major inqui ries:
    (1) whether the agency's decision conforms with the relevant law; (2) whether
    the decision is supported by substantial credible evidence in the record; and (3)
    whether in applying the law to the facts, the administrative agency clearly erred
    in reaching its conclusion. In re Stallworth, 
    208 N.J. 182
    , 194 (2011).
    When an agency decision satisfies such criteria, we accord substantial
    deference to the agency's fact-finding and legal conclusions, acknowledging the
    agency's "expertise and superior knowledge of a particular field."          Circus
    Liquors, Inc. v. Governing Body of Middletown Twp., 
    199 N.J. 1
    , 10 (2009)
    (quoting Greenwood v. State Police Training Ctr., 
    127 N.J. 500
    , 513 (1992)).
    We will not substitute our judgment for the agency's even though we might have
    reached a different conclusion. 
    Stallworth, 208 N.J. at 194
    ; see also In re Taylor,
    
    158 N.J. 644
    , 656 (1999).
    A-4092-17T3
    6
    Our deference to agency decisions "applies to the review of disciplinary
    sanctions as well." 
    Herrmann, 192 N.J. at 28
    . "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
    (quoting In re Polk, 
    90 N.J. 550
    , 578 (1982)).
    Having considered Fox's arguments in light of the record on appeal and
    our limited standard of review, we affirm the Commission's final determination
    substantially for the reasons expressed by the ALJ. The Commission's final
    determination is supported by sufficient credible evidence on the record as a
    whole. R. 2:11-3(e)(1)(D). Fox's arguments are without sufficient merit to
    warrant further discussion. R. 2:11-3(e)(1)(E).
    Affirmed.
    A-4092-17T3
    7