IN THE MATTER OF CAROL FOX, BOROUGH OF KEYPORT POLICE DEPARTMENT (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NOT FOR PUBLICATION WITHOUT THE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-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.
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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).
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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
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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).
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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).
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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.
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