IN THE MATTER OF ALEX NAVAS, TOWN OF WEST NEW YORK (NEW JERSEY CIVIL SERVICE COMMISSION)

NOT FOR PUBLICATION WITHOUT THE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-4786-18
IN THE MATTER OF
ALEX NAVAS,
TOWN OF WEST NEW YORK
Submitted January 13, 2021 – Decided April 19, 2021
Before Judges Alvarez and Geiger.
On appeal from the New Jersey Civil Service
Commission, Docket No. 2018-1279.
DeCotiis, FitzPatrick, Cole & Giblin, LLP, attorneys
for appellant Town of West New York (Andrés Acebo,
of counsel; Gregory J. Hazley, on the briefs).
Weissman & Mintz, LLC, attorneys for respondent
Alex Navas (Jason L. Jones, on the brief).
Gurbir S. Grewal, Attorney General, attorney for
respondent State of New Jersey Civil Service
Commission (Melissa H. Raksa, Assistant Attorney
General and Dominic L. Giova, Deputy Attorney
General, on the brief).
PER CURIAM
The Town of West New York (the Town) appeals the Civil Service
Commission's (CSC) June 27, 2019 final agency decision partially reversing an
Administrative Law Judge's (ALJ) decision. We affirm in part, and reverse and
remand in part.
Alex Navas, a Department of Public Works (Department) sanitation
inspector, had disciplinary charges sustained against him which resulted in a
thirty-day suspension. The final notice of disciplinary action (FNDA) states:
On 05/01/17, you did not follow proper protocol with
respect to construction debris that you removed from
222 67[th] Street. Specifically, you removed the
construction debris which was left on the side walk
located in front of 222 67th Street without notifying the
resident that he has two hours to remove the debris or
make arrangements for the debris to be removed. When
you returned to the [Department] garage with the debris
in your truck, you were advised by . . . Ms. Baldeo of
the proper protocol and told to return the debris to 222
67th Street. You were also told to notify the resident
of his responsibility to remove the debris from the
sidewalk. You did not return all of the debris to this
address and placed some in the [Department] garage
and some at other properties.
Additionally, on May 15, 2017, Silvio Acosta, Director
of the Department of Public Works assigned you to
investigate a list of violations at various properties in
the Town of West New York. However, you refused
Mr. Acosta's directive.
On or about May 19, 2017[,] you were ordered by
Supervisor Ramon Lago to take action regarding pallets
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located on 49th and Bergenline, which were there for
more than 10 days. Specifically, you were directed to
investigate for a possible violation. Yet, you did not
take any action with respect to the violation in direct
insubordination of your superiors and endangering the
residents of the Town.
Navas appealed, and the matter was transmitted to the Office of
Administrative Law for hearing as a contested case. See N.J.S.A. 52:14B-1 to
B-15, and 52:14F-1 to F-13.
Navas and various members of the Department testified at the hearing.
The ALJ found by a preponderance of the credible evidence that charges of
insubordination, neglect of duty, and conduct unbecoming an employee should
be sustained as to the May 1, 2017, and May 15, 2017 incidents. The ALJ also
determined that charges resulting from the May 19, 2017 incident were not
established, and accordingly modified the thirty-day suspension penalty to
twenty days.
The CSC affirmed the ALJ's decision as to the May 19, 2017 charge. It
concurred that "the appointing authority did not establish by a preponderance of
the evidence that the appellant refused a supervisor's order to investigate for a
possible violation or to 'take any action' regarding pallets left outside a particular
address." With regard to the May 1, 2017 incident, however, the CSC
considered the order that was issued for Navas to return the construction debris
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to the sidewalk where he found it to be "unfathomable." The order "was in no
way in the best interest of the public." Therefore, it reversed that finding.
Nor did the CSC agree with the ALJ's decision regarding the May 15, 2017
incident. The CSC concluded the FNDA alleged conduct different from that
addressed at the initial and the administrative law hearings. The FNDA "made
no mention of [Navas's] failure to issue summonses, and . . . the ALJ found no
evidence that the appellant was ever given a list of violations of various
properties to investigate . . . ." Thus, the CSC concluded that charge could not
be sustained.
The conduct that led to these proceedings can be briefly described. On
May 1, 2017, the Department's administrative assistant Marileidys Baldeo
directed Navas to the address noted on the FNDA, where bags of construction
material had been left on a sidewalk; the Department had received a complaint
about them. Navas went to the address and spoke with the elderly homeowner,
who had an injured ankle. Navas claimed he had been previously told that the
Department would remove similar materials. As a courtesy, Navas placed eight
to ten bags in his pickup and drove back to the Department garage. Upon arrival,
Baldeo told Navas that the Department Director, Silvio Acosta, wanted him to
return the bags. The caller who made the initial complaint had forwarded a
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video of the removal of the bags, and was now complaining that Navas had taken
them. Acosta testified that to remove a homeowner's construction debris
violated Department policy. Navas allegedly returned only some of the bags,
dumped some at a different residence, and discarded the remaining bags in a
Department trash container. Navas testified to the contrary, that he had taken
the bags because of the homeowner's age and health, but that he had returned
them to their original location.
On May 15, 2017, Acosta claimed he gave defendant a list of properties
in violation of waste disposal laws and ordered Navas to write summonses.
Navas had never previously issued a summons without being the person who
investigated the violation. In response, Navas said he wanted to first contact a
union representative, and did so. This prompted a meeting between Navas,
Acosta, the union shop steward, Nelson Rodriguez, and Alain Gomez, during
which Navas requested Acosta put his order in writing. Navas claimed Acosta
refused, saying, "I'm the boss and whatever I say goes." As a result of the
grievance Navas filed, the union instructed its inspectors that, when directed to
issue summonses for violations they did not witness firsthand, they should
record on the summons the name of the person who did. Navas did not write the
summonses.
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On May 19, 2017, Acosta testified that the Department was informed a
pallet was left outside of a building, creating a hazardous condition. He denied
being the supervisor who directed Navas to issue a summons, claiming it was a
now-retired supervisor. In any event, Navas went to the property, explained the
ordinance to the owner, and when he returned an hour later, the owner had
disposed of the pallets. Accordingly, Navas did not issue a summons because
of the owner's timely compliance with his request.
Now on appeal, the Town raises the following points for our
consideration:
POINT I
THE CIVIL SERVICE COMMISSION’S
DETERMINATION TO ELIMINATE NAVAS’
PENALTY WAS ARBITRARY, CAPRICIOUS,
UNREASONABLE, AND UNSUPPORTED BY
SUBSTANTIAL CREDIBLE EVIDENCE IN THE
RECORD.
A. The Commission’s Reversal of Discipline for the
May 1, 2017 Incident Was Arbitrary and Capricious
and Contrary to the Factual Findings of the OAL.
B. Reversal of Discipline for the May 15, 2017 Incident
Was Arbitrary and Capricious and Contrary to the
Factual Findings of the OAL.
POINT II
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THE CIVIL SERVICE COMMISSION FAILED TO
APPLY OR IN ANY WAY CONSIDER THE
CONCEPT OF PROGRESSIVE DISCIPLINE IN
REVIEWING THE ALJ’S FINDINGS.
I.
"Ordinarily, an appellate court will reverse the decision of [an]
administrative agency only if it is arbitrary, capricious or unreasonable or it is
not supported by substantial credible evidence in the record as a whole." Henry
v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). "The precise issue is
whether the findings of the agency could have been reached on substantial
credible evidence in the record, considering the proofs as a whole." In re Hess,
422 N.J. Super. 27, 34 (App. Div. 2011). We affirm, even if convinced we
would have reached a different conclusion. Clowes v. Terminix Intern., Inc.,
109 N.J. 575, 588 (1988).
Where an agency decision is arbitrary or capricious, the court should
remand to the agency for redetermination, however. Henry, 81 N.J. at 580. We
are not bound by an agency's interpretation of the law. Ardan v. Bd. of Rev.,
231 N.J. 589, 604 (2018).
The CSC reviews penalty determinations de novo. Winters v. N. Hudson
Reg'l Fire and Rescue, 212 N.J. 67, 81 (2012). However, "[an] agency head
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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
and Health Servs., 349 N.J. Super. 480, 485 (App. Div. 2002). In this case, the
CSC "[found] that there [was] sufficient evidence in the record to support the
ALJ's credibility determinations." The CSC simply did not, after its de novo
review of the record, agree with the ALJ's recommendations regarding the
charges.
II.
The CSC considered the directive the Department issued for Navas to
return bags of construction debris he had taken from the front of an elderly
homeowner's residence to be "unfathomable." For that reason, the CSC decided
the incident did not merit disciplinary action.
As the CSC also noted, however, the record did not include proof that
Navas knew, prior to the incident, that he should not pick up the construction
materials. No documentation verifying the existence of this policy was
introduced during the hearing. That Department protocol made the property
owner responsible for removing his or her own construction debris is different
than proving that this Department employee knew he was prohibited from
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removing construction debris from a resident's home. It would be u nreasonable
to sustain the charge against Navas if he was unaware of any directive barring
him from picking up the bags.
Once Navas removed the debris, it was not reasonable to order him to put
them back. Thus, Navas's failure to return the bags did not warrant disciplinary
action. As the CSC aptly commented, the incident was not "worthy of a
disciplinary action."
"The Commission may adopt, reject or modify the recommended report
and decision of an administrative law judge." N.J.A.C. 4A:2-2.9(c). This court
"will not upset a determination by the Commission in the absence of a showing
that it was arbitrary, capricious or unreasonable, or that it lacked fair support in
the evidence, or that it violated legislative policies expressed or implied or
implicit in the civil service act." Campbell v. Dep't of Civil Serv., 39 N.J. 556,
562 (1963). Given the facts found by the ALJ, the CSC's determination that the
directive issued to Navas "was in no way in the best interest of the public" was
not arbitrary, capricious or unreasonable. It was supported by the record and
did not violate legislative policies. The decision by the CSC to reverse the ALJ's
determination regarding the May 1 incident should not be disturbed.
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III.
The Town claims the CSC's reversal of the adjudication and penalty
regarding the May 15, 2017 incident was arbitrary and capricious. As we earlier
noted, the FNDA charged that Navas refused Acosta's order to investigate a list
of violations. Despite finding no evidence that he was ever given a list of
violations, the ALJ concluded that Navas's failure to issue summonses in
connection with this incident was insubordination, neglect of duty, and conduct
unbecoming. The CSC in turn reversed the charges because the FNDA did not
allege Navas failed to issue a summons, but rather that he refused to investigate.
Hence the charges did not mirror the conduct which formed the basis of
the ALJ's decision or the testimony at the hearing. This raises the question of
the degree of specificity necessary for an FNDA to fairly describe incidents
giving rise to charges. A preliminary notice of disciplinary action must "set[]
forth the charges and statement of facts supporting the charges (specifications)
. . . ." N.J.A.C. 4A:2-2.5(a).
"Properly stated charges are a [s]ine qua non of a valid disciplinary
proceeding. It is elementary that an employee cannot legally be tried or found
guilty on charges of which he has not been given plain notice by the appointing
authority." Town of West New York v. Bock, 38 N.J. 500, 522 (1962).
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Therefore, "'[p]lain notice' is the standard to be applied when considering the
adequacy of disciplinary charges filed against public employees." Pepe v. Twp.
of Springfield, 337 N.J. Super. 94, 97 (App. Div. 2001).
In Campbell, the appellant argued that "charges outside the scope of the
preliminary notice were improperly considered." 39 N.J. at 580. The court
found, however, the "charges were duly raised before [the] Acting
Commissioner [] and the appellant was then advised that they would be
considered and that he could introduce evidence to meet them." Ibid. The court
further stated: "in any event, the original notice may be considered as having
been amended or supplemented to include them specifically. On [appellant's]
appeal, they were part and parcel of the charges heard [d]e novo by the
Commission which fairly received evidence with respect to them from both
[parties]." Ibid. Therefore, he was not prejudiced. Ibid.In Pepe, a firefighter was charged after perpetrating a false alarm. 337
N.J. Super. at 95-96. The hearing officer disciplined him on several charges not
specified in his Notice of Disciplinary Action and of which Pepe therefore
lacked written notice before the proceedings. Id. at 96-97. The Law Division
judge agreed, but on appeal, the decision was reversed since "the ultimate
conclusion reached by the hearing officer fell well within the four corners of
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those charges and specifications." Id. at 97-98. We decided Pepe had adequate
notice because "the obligation of reporting such a clear violation of the law is
so basic and primary to [plaintiff's] duties . . . ." Id. at 98. In other words, the
technical inadequacies did not nullify the wrong that was suggested in the notice,
and which was litigated and ultimately proven against him.
Thus, the issue here is plain notice. The dispute centered over Acosta's
instruction to Navas to write summonses, and his response that he did not feel
comfortable doing so. Navas clearly understood the instruction because he filed
a grievance. He did not consider it reasonable for an inspector to be called upon
to issue a summons if he did not conduct the initiating inspection. In fact, as a
result of this incident, the union changed the procedure for the issuance of such
summonses, and inspectors were directed to note on the summons the name of
the individual who actually conducted the inspection.
From the hearing testimony, which detailed the incident and its aftermath,
Navas had full notice of the charges and the specifications. Despite the
divergence between the written charge and the testimony, Navas knew the
specific conduct with which he was charged was his refusal to comply with an
order. Under these circumstances, therefore, we remand for the CSC to revisit
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this charge and decide it on the merits. The question should be whether Navas
refused to follow an order, and if so, whether any defenses to the charge exist.
IV.
We do not reach the issue of the impact of progressive discipline on
Navas's penalty. The subject is rendered moot by the fact that the CSC vacated
all charges, and will now be reconsidering one.
Affirmed in part, reversed and remanded in part.
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