IN THE MATTER OF AH'KALEEM FORD, HUDSON COUNTY(CIVIL SERVICE COMMISSION) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE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-4106-13T4
IN THE MATTER OF
AH'KALEEM FORD,
HUDSON COUNTY.
_______________________________
Submitted February 1, 2017 – Decided August 28, 2017
Before Judges Fuentes and Carroll.
On appeal from the New Jersey Civil Service
Commission, Docket No. 2014-640.
Ah'Kaleem Ford, appellant pro se.
Chasan Leyner & Lamparello, attorneys for
respondent County of Hudson (Cindy Nan
Vogelman, of counsel and on the brief; Qing
H. Guo, on the brief).
Christopher S. Porrino, Attorney General,
attorney for the New Jersey Civil Service
Commission (Pamela N. Ullman, Deputy Attorney
General, on the statement in lieu of brief).
PER CURIAM
On December 18, 2011, officers from the Bloomfield Police
Department arrested Ah'Kaleem Ford and charged him with simple
assault, N.J.S.A. 2C:12-1a(1),1 of his paramour, who was also the
mother of his then three-month-old son. In addition, the victim
filed a complaint under the Prevention of Domestic Violence Act
(PDVA), N.J.S.A. 2C:25-17 to -35, and obtained a temporary
restraining order (TRO) against Ford. At the time, Ford was
employed by Hudson County (the County) as a Corrections Officer.
On December 20, 2011, the County issued a Preliminary Notice of
Disciplinary Action (PNDA) charging Ford with insubordination,
N.J.A.C. 4A:2-2.3(a)(2); conduct unbecoming a public employee,
N.J.A.C. 4A:2-2.3(a)(6); neglect of duty, N.J.A.C. 4A:2-2.3(a)(7);
inability to perform duties, N.J.A.C. 4A:2-2.3(a)(3); and other
sufficient cause, N.J.A.C. 4A:2-2.3(a)(12).
On January 4, 2012, the County conducted a departmental
hearing and issued a Final Notice of Disciplinary Action (FNDA)
suspending Ford from duty pending the outcome of his charge of
simple assault, a disorderly persons offense. Following the
dismissal of the simple assault charge, the County conducted
another departmental hearing on April 23, 2012. In a decision
dated April 30, 2012, the Hearing Officer found "the County [had]
1
According to information obtained from the Bloomfield Police
Department, at approximately 11:43 p.m. on December 18, 2011, Ford
physically assaulted the victim by twisting her arm, throwing her
to the ground, and striking her in the face with a house phone,
causing her to have a swollen lip.
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sustained all charges contained [in the PDNA dated December 20,
2011.]" The Hearing Officer ordered that Ford be suspended for
six months, with credit for the intervening period of suspension.
Ford's return to active duty was also conditioned upon passing a
psychological "fitness for duty" test.
Ford failed to appear for his first "fit to return to duty"
appointment with Dr. Robert Kanen, the County's psychologist. He
arrived fifteen minutes late for his second appointment on May 17,
2012. According to Dr. Kanen, Ford was uncooperative and defiant
from the start. Ford refused to answer even the most basic
questions about his then current personal situation. His behavior
was both confrontational and irrational. As Dr. Kanen noted in
his May 21, 2012 report: "Within five minutes of the psychological
fitness for duty evaluation, Ah'Kaleem Ford was uncooperative,
hostile, and oppositional. When questions were asked of him, he
began to throw back the questions on this examiner[,] asking me
'What do you think?'" Dr. Kanen found Ford unfit to perform the
duties of a Corrections Officer.
As a result of his behavior during the psychological
evaluation, the County served Ford with a second PDNA on July 17,
2012. This time, the County charged Ford with insubordination,
N.J.A.C. 4A:2-2.3(a)(2); inability to perform duties, N.J.A.C.
4A:2-2.3(a)(3); and other sufficient cause, N.J.A.C. 4A:2-
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2.3(a)(12). These charges were presented to a Hearing Officer at
a departmental hearing conducted on September 25, 2012. In a
Final Decision dated October 12, 2012, the Hearing Officer
terminated Ford from his position as a Corrections Officer
"effective immediately."
Ford appealed both his initial suspension from duty,
commencing on June 8, 2012, and his final termination. The
Commission consolidated these issues and referred the matter for
an evidentiary hearing before an Administrative Law Judge (ALJ).
The County and Ford presented evidence to the ALJ over the course
of several hearing dates. The ALJ issued an Initial Decision on
May 22, 2013, in which he upheld the suspension of "132 working
days or six calendar months" based on "conduct unbecoming resulting
from an allegation of simple assault against [Ford's]
girlfriend[.]" The ALJ reversed the sanction related to Ford's
"psychological unfitness for duty and other charges[.]" The ALJ
ordered the County to reinstate Ford "to his position of Senior
Corrections Officer with back pay from June 22, 2012."
In a Final Decision issued on August 15, 2013, the Commission
reported that at a meeting held on July 31, 2013, it accepted and
adopted the ALJ's Findings of Fact and upheld the 132-working-day
suspension, but modified the ALJ's recommendation to reverse the
removal. In this regard, the Commission ordered that the reversal
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of Ford's removal was contingent upon his successful completion
of a new psychological fitness for duty examination. With respect
to the mental health professional who would perform this new
evaluation, the Commission stated: "The selection of the
psychiatrist or psychologist shall be by agreement of both parties
within 30 days of the date of this decision. The appointing
authority [the County] shall pay for the cost of this evaluation."
Represented by counsel, Ford requested the Commission to
reconsider its July 31, 2013 decision. In an opinion issued on
March 27, 2014, the Commission described the history of the case
and then stated the standard of review that applies in determining
a request for reconsideration:
A petition for reconsideration shall be in
writing signed by the petitioner or his or her
representative and must show the following:
1. The new evidence or additional information
not presented at the original proceeding,
which would change the outcome[,] and the
reasons that such evidence was not presented
at the original proceeding; or
2. That a clear material error has occurred.
[N.J.A.C. 4A:2-1.6(b)(1)–(2).]
The Commission found that Ford's petition for reconsideration
"raised several procedural challenges regarding the disciplinary
actions" which were not raised as exceptions to the ALJ's Initial
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Decision.2 Ford did not provide any explanation for his failure
to raise these alleged procedural irregularities in a timely
fashion. The Commission noted that these deficiencies alone
provided sufficient grounds to deny Ford's request for
reconsideration.
Notwithstanding this procedural bar, the Commission found
that Ford's argument predicated on the County's failure to comply
with N.J.S.A. 40A:14-149.2 was substantively without merit. The
statute provides:
If a suspended police officer is found not
guilty at trial, the charges are dismissed[,]
or the prosecution is terminated, said officer
shall be reinstated to his position and shall
be entitled to recover all pay withheld during
the period of suspension subject to any
disciplinary proceedings or administrative
action.
[Ibid. (emphasis added).]
2
On the final page of the Initial Decision, immediately above the
ALJ's signature, there is the following statement:
Within thirteen days from the date on which
this recommended decision was mailed to the
parties, any party may file written exceptions
with the DIRECTOR, DIVISION OF APPEALS AND
REGULATORY AFFAIRS, UNIT H, CIVIL SERVICE
COMMISSION, 44 South Clinton Avenue, P.O. Box
312, Trenton, New Jersey 08625-0312, marked
"Attention: Exceptions." A copy of any
exceptions must be sent to the Judge and to
the other parties.
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A plain reading of the statute illustrates that as a County
Corrections Officer, the provisions of N.J.S.A. 40A:14-149.2 do
not apply to Ford. The Commission thereafter reviewed and
rejected other facially specious arguments raised by Ford.
The Commission also addressed the County's request for the
imposition of sanctions against Ford for his failure to comply
with the portion of the Commission's Final Decision requiring the
parties to select, within 30 days of the date of the Decision, a
mutually acceptable mental health professional to conduct a
fitness for duty evaluation. In this respect, the Commission
found:
It is unrebutted in the record that the
appointing authority attempted to comply with
the Commission's order by providing the names
of four doctors to the appellant, but, other
than his one counter-proposal, the appellant
has taken no action to obtain the required
fitness for duty evaluation. Regardless,
since the matter of his petition for
reconsideration has now been adjudicated, the
Commission will offer the appellant one more
opportunity to complete the required fitness
for duty examination.
As a means of bypassing Ford's uncooperative behavior, the
Commission selected Dr. Susan A. Furnari, D.Ed. and ordered Ford
to schedule an appointment with Dr. Furnari "for a fitness for
duty evaluation." The Commission reaffirmed its earlier ruling
that if Dr. Furnari found Ford was fit for duty, "without
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qualification," he would be "immediately reinstated to his
position." However, he would not be entitled to back pay for the
period between July 31, 2013 and the date of this order, March 27,
2014. The Commission stated as follows: "If [Ford] fails to obtain
and/or schedule the required fitness for duty evaluation, as
specified in this decision, the Commission orders that [Ford] be
removed effective September 25, 2012."
On April 21, 2014, Ford filed a pro se Notice of Appeal with
this court challenging the Commission's March 27, 2014 decision
denying his petition for reconsideration. In his pro se brief,
Ford argues the Commission erred in finding the provisions of
N.J.S.A. 40A:14-149.2 do not apply to him. We disagree and affirm.
As an appellate court, we apply a deferential standard of
review to disciplinary decisions made by the Commission. See In
re Stallworth, 208 N.J. 182, 194–95 (2011) (citations omitted).
In order to reverse a final decision of the Commission, an
appellant must demonstrate that the decision was arbitrary,
capricious, or unreasonable. Id. at 194. To reach this
conclusion, we must consider and apply the following factors:
(1) whether the agency's action violates
express or implied legislative policies, that
is, did the agency follow the law; (2) whether
the record contains substantial evidence to
support the findings on which the agency based
its action; and (3) whether in applying the
legislative policies to the facts, the agency
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clearly erred in reaching a conclusion that
could not reasonably have been made on a
showing of the relevant factors.
[Ibid. (quoting In re Carter, 191 N.J. 474,
482–83 (2007)).]
In cases involving disciplinary actions in particular, we are
prohibited from substituting our judgment for that of the
Commission, even if, considering the same facts, we would have
reached a different result. Ibid. (quoting Carter, supra, 191
N.J. at 483).
Against this standard of review, we discern no legal basis
to disturb the Commission's March 27, 2014 decision.
Affirmed.
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