IN THE MATTER OF MICHAEL MULCAHY (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NOT FOR PUBLICATION WITHOUT THE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-2891-16T1
IN THE MATTER OF MICHAEL
MULCAHY, MICHAEL SMITH,
and CITY OF BAYONNE.
______________________________
Submitted February 27, 2019 – Decided March 28, 2019
Before Judges Accurso, Vernoia and Moynihan.
On appeal from the New Jersey Civil Service
Commission, Docket No. 2016-819.
Joel S. Silberman, attorney for appellant Michael
Mulcahy.
Christine Finnegan, attorney for appellant Michael
Smith, joins in briefs of appellant Michael Mulcahy.
Roth D'Aquanni, LLC, attorneys for respondent City of
Bayonne (Allan C. Roth, on the brief).
Gurbir S. Grewal, Attorney General, attorney for
respondent Civil Service Commission (Melissa Dutton
Schaffer, Assistant Attorney General, of counsel;
Pamela N. Ullman, Deputy Attorney General, on the
brief).
PER CURIAM
Petitioners Michael Mulcahy and Michael Smith appeal from the Civil
Service Commission's February 10, 2017 final decision rejecting their challenge
to the City of Bayonne's decision laying them off from their Municipal Services
Department (MSD) positions. We affirm.
Bayonne hired Mulcahy in 2011 as a housing inspector and Smith in 2012
as a field representative. They worked in the MSD enforcing Bayonne's property
maintenance and municipal codes. On May 25, 2015, Bayonne submitted a
layoff plan to the Commission stating in part that "[d]ue to reasons of economy
and severe budget shortfalls," it intended to lay off Mulcahy, Smith and their
co-employee in the MSD, Gary Parlatti. The plan described pre-layoff actions
taken by Bayonne to lessen the impact of the proposed layoffs on permanent
employees, such as reviewing overtime requests, eliminating intern positions,
and reviewing expense accounts.
On June 1, 2015, the Commission approved the layoff plan and Bayonne
served Mulcahy and Smith with notices laying them off effective July 17, 2015.
Mulcahy and Smith challenged the layoffs, claiming Bayonne did not lay them
off in good faith for reasons of efficiency or economy. 1 See N.J.A.C. 4A:8-
1
Gary Parlatti exercised bumping rights and was demoted to a different
position. Parlatti joined Mulcahy's and Smith's challenge to the layoffs in the
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1.1(a). The Commission referred the matter to the Office of Administrative Law
for a hearing before an administrative law judge (ALJ).
Following the hearing, the ALJ issued a written decision finding Mulcahy,
Smith and Parlatti "performed property code enforcement for Bayonne and
handled citizen complaints" by "respond[ing] to complaints and issu[ing]
warnings, and summonses when appropriate, for code violations." The ALJ
further found that following the layoffs, Bayonne "hired in excess of 100 new
employees," "continued to hire seasonal employees" and never offered Mulcahy
or Smith a seasonal employee position.
The ALJ noted that Bayonne relied on an alleged change in its property
code enforcement philosophy to support its claim that there was a reduced need
for employees performing Mulcahy's, Smith's and Parlatti's MSD job duties.
The ALJ noted it was "not disputed that Bayonne had a budget deficit and needed
to cut costs," but found the change in code enforcement philosophy was "never
articulated" in a memorandum or meeting with the employees and there was "no
credible evidence that this change in philosophy was put in place."
proceedings before the administrative law judge and Commission but has not
participated in the appeal of the Commission's final decision.
A-2891-16T1
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The ALJ found the testimony of Robert Wondolowski, MSD's director at
the time of the layoffs, and Joseph DeMarco, Bayonne's City Administrator, was
not credible. Wondolowski and DeMarco testified the layoffs resulted from a
reduced need for the code enforcement duties previously performed by Mulcahy,
Smith and Parlatti because, following the election of Mayor Jimmy Davis in
2014, Bayonne changed its code enforcement philosophy due to complaints from
Bayonne's citizens. More particularly, the code enforcement philosophy
changed from actively seeking out violations of Bayonne's property maintenance
ordinances and aggressively ticketing violators until the violations were
resolved, to responding only to citizen complaints about alleged violations.
The ALJ concluded "Bayonne did not effectuate the layoffs due to reasons
of economy and severe budget shortfalls" and "[t]here is no credible evidence
that [the] change in philosophy was put into place." The ALJ found that
Bayonne had not done what it indicated it would do in its layoff plan and,
although the evidence did not "establish[] why Bayonne wished to remove
[Mulcahy and Smith] . . . it is clear that the purpose of the layoff plan was their
removal, and not for purposes of economy or budget shortfalls." The ALJ
recommended that Mulcahy and Smith be restored to their respective positions
A-2891-16T1
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with back pay, "subject to mitigation for income earned during" the period
following the layoffs.
Bayonne filed exceptions to the ALJ's decision. In the Commission's final
decision, it declined to adopt the ALJ's findings and concluded the ALJ's
credibility determinations as to Wondolowski and DeMarco were not supported
by the evidentiary record. The Commission recognized an ALJ "is generally in
a better position to determine the credibility and veracity of the witnesses," and
that it "appropriately gives due deference to such determinations." The
Commission further observed that it may only reject or modify an ALJ's
"findings of fact as to issues of credibility of lay witness testimony [if] it is first
determined from a review of the record that the findings are arbitrary, capricious
or unreasonable or are not supported by sufficient, competent and credible
evidence in the record." See N.J.S.A. 52:14B-10(c). The Commission,
however, determined the ALJ's credibility determinations are not supported by
sufficient credible evidence in the record, and found Wondolowski's and
DeMarco's testimony credible.
The ALJ found Wondolowski's testimony was not credible because
Wondolowski testified on direct examination "he did not speak with . . .
DeMarco regarding layoffs," but on cross-examination said he discussed "the
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budget and possibility of layoffs" with DeMarco. But the Commission
concluded the ALJ's findings are not supported by the record. Wondolowski
was asked during direct examination if DeMarco ever spoke to him "about laying
[Mulcahy and Smith] off." In response, Wondolowski said, "[w]e talked about
our budgets and where there were inefficiencies," but he never denied discussing
layoffs. As explained by the Commission, when Wondolowski was asked on
cross-examination if he ever had a "conversation with . . . DeMarco regarding
the potential layoffs," he testified "there were discussions about what [they]
needed to do as far as the budgets and layoffs, yes." The Commission did not
find Wondolowski's testimony inconsistent and rejected the ALJ's determination
that it was.
The ALJ also found Wondolowski testified that he did not know about a
change in philosophy regarding property maintenance enforcement, but actually
he only denied discussing a philosophy of "not enforc[ing] the [p]roperty
[m]aintenance [c]odes." The Commission noted the ALJ stated that on direct
examination Wondolowski said he did not tell Mulcahy and Smith to stop
writing tickets for property maintenance violations, but the record shows
Wondolowski was never asked about that issue on direct examination. In sum,
the Commission determined the ALJ's finding Wondolowski was not credible
A-2891-16T1
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was based on findings of fact about his testimony that were bereft of support in
the record.
The Commission similarly found the ALJ's credibility determination
concerning DeMarco was undermined by the record. The ALJ observed that
DeMarco's "testimony was straightforward and direct," but concluded his
testimony that the layoffs resulted from a change in the property maintenance
enforcement philosophy was not credible because there was no corroborative
evidence of the change. More particularly, the ALJ noted that there was no
memorandum concerning the change or meetings during which it was discussed
and that "[a]ll other witnesses, including . . . Wondolowski, were unaware of the
change in philosophy."
The Commission rejected the ALJ's findings and conclusion concerning
DeMarco's credibility, explaining that "multiple witnesses . . . testified that there
was a change in philosophy from active to passive code enforcement and that
this change went into effect," and they corroborated "DeMarco's testimony
regarding the change in philosophy." The Commission summarized the
testimony of MSD employee Thomas Keyes who explained that prior to Mayor
Davis taking office in 2014, "it was standard practice . . . to write multiple
summonses on a property owner even if the summonses were repetitive," but
A-2891-16T1
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following Mayor Davis taking office, "the program became less punitive and
'went back to the way the job was supposed to be, which was to be rehabilitative
to the neighborhood.'" The Commission also cited the testimony of Laura Kline,
"who worked directly with" Mulcahy and Smith, and understood that following
Mayor Davis taking "office[] there was a determination not to actively look for
property maintenance violations," "there was a change in philosophy" and "she
was in at least one or two meetings where Wondolowski told Keyes[, Mulcahy
and Smith] to stop actively looking for property maintenance violations."
The Commission found that based on the credible evidence presented,
including the testimony of Wondolowski and DeMarco, Bayonne "underwent a
shift in its philosophy as to how it would enforce its property maintenance code,
and [the] change was effected notwithstanding that it was not written." The
Commission noted that Mulcahy acknowledged DeMarco instructed him to slow
down his code enforcement actions, and Bayonne's Chief Financial Officer,
Terrance Malloy, testified Mayor Davis's administration had "a different
philosophy" of property code enforcement than "the [previous] administration"
and "there were no longer roving patrols out looking to write tickets."
The Commission also found that under the changed approach, "Bayonne
did not send employees into the field to look for violations and write tickets,"
A-2891-16T1
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and that it was "reasonable for it to conclude that it no longer needed to maintain
the same staff level." Noting that "an appointing authority has discretion as to
how it runs its operation," the Commission concluded Mulcahy and Smith failed
to sustain their burden of proving Bayonne laid them off in bad faith for reasons
other than efficiency and economy. This appeal followed.
Mulcahy and Smith present the following arguments for our
consideration:
THE CIVIL SERVICE COMMISSION'S DECISION
MUST [BE] OVERTURNED BECAUSE IT IS
ARBITRARY, CAPRICIOUS, UNREASONABLE
AND IS UNSUPPORTED BY THE RECORD
BELOW.
A. THE RECORD CLEARLY ESTABLISHES THAT
BAYONNE DID NOT EFFECTUATE APPELLANT'S
LAYOFF FOR ECONOMY AND EFFICIENCY AS
INDICATED IN THEIR LAYOFF PLAN.
B. THE OAL'S CREDIBILITY DETERMINATIONS
SHOULD NOT HAVE BEEN DISTURBED.
Smith also presents the following argument:
THE INITIAL DECISION IS DEEMED ADOPTED,
N.J.S.A. §52:14b-10(C). DECEMBER 17, 2016 WAS
THE 45TH DAY.
Our scope of review of administrative decisions is limited. In re
Stallworth, 208 N.J. 182, 194 (App. Div. 2011). Appellate courts should not
A-2891-16T1
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disturb an administrative decision unless the court finds it to be arbitrary,
capricious, or unreasonable. Karins v. City of Atl. City, 152 N.J. 532, 540
(1998). "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) (citing
Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)).
We are not persuaded by Mulcahy's and Smith's contention that the
Commission erred by rejecting the ALJ's determination that Wondolowski and
DeMarco were not credible witnesses. An agency head sitting in review of an
ALJ's initial decision cannot "reject or modify any findings of fact as to issues
of credibility of lay witness testimony unless it is first determined from a review
of the record that the findings are arbitrary, capricious, or unreasonable or are
not supported by sufficient, competent, and credible evidence in the record."
N.J.S.A. 52:14B-10(c). Where an agency head rejects or modifies an ALJ's fact
finding or credibility determinations, "the agency head shall state with
particularity the reasons for rejecting the findings and shall make new or
modified findings supported by sufficient, competent, and credible evidence in
the record." Ibid. Overturning an ALJ's fact finding or credibility
determinations cannot be done by merely "relying upon additional evidence
A-2891-16T1
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present in the record." Cavalieri v. Bd. of Trs. of Pub. Emps. Ret. Sys., 368 N.J.
Super. 527, 534 (App. Div. 2004).
Here, the Commission stated with particularity its reasons for rejecting
the ALJ's credibility determinations as to Mulcahy and Smith. See N.J.S.A.
52:14B-10(c). The Commission found the ALJ's determinations were either not
supported by the record or, in some instances, were contradicted by the record.
See ibid. We observe that the Commission did not "simply substitute its
judgment for that of the ALJ's," Cavalieri, 368 N.J. Super. at 534, but instead
relied on credible testimony that directly contradicted the ALJ's credibility
determinations. Our independent review reveals that the record undermines the
ALJ's credibility findings and includes sufficient evidence supporting the
Commission's credibility determinations. We therefore discern no basis to
reverse the Commission's credibility findings or its other findings of fact, all of
which find support in the evidence.
Mulcahy and Smith further argue the Commission's decision should be
reversed because their layoffs were not for reasons of efficiency or economy.
"An appointing authority may institute layoff actions for economy, efficiency,
or other related reasons." N.J.A.C. 4A:8-1.1(a). An employee laid off subject
to this regulation may challenge the termination by asserting "the appointing
A-2891-16T1
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authority laid off . . . the employee . . . for reasons other than economy,
efficiency, or other related reasons." N.J.A.C. 4A:8-2.6(a)(1); see also N.J.S.A.
11A:8-4. A municipality's actions are presumed to be in good faith, see
Schnipper v. Twp. of N. Bergen, 13 N.J. Super. 11, 15 (App. Div. 1951), and
the employee bears the burden of proving that the appointing authority acted in
bad faith by a preponderance of the evidence, N.J.S.A. 11A:8-4. An employee
seeking to establish that an appointing authority acted in bad faith must prove
that the municipality's "design in adopting the [layoff] plan was [not] to
accomplish" economy or efficiency, but "was to effect the removal of a public
employee, protected by civil service, without following the statutory procedure
for removal." Greco v. Smith, 40 N.J. Super. 182, 190 (App. Div. 1956).
There is sufficient credible evidence supporting the Commission's
determination that Mulcahy and Smith failed to sustain their burden of proving
the layoffs were made in bad faith. The evidence the Commission deemed
credible showed that following Mayor Davis's election in 2014, Bayonne's
property maintenance philosophy changed from an aggressive to a more passive
approach. Under the new philosophy, MSD inspectors were no longer required
to seek out and ticket violators, but instead only responded to complaints about
alleged code violations. The change in philosophy resulted in a reduction in the
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need for MSD inspectors. The evidence showed Wondolowski understood the
change in philosophy would require layoffs and that after Mulcahy and Smith
were laid off and Parlatti was transferred, the number of MSD-issued tickets
dropped dramatically.
"[I]t was not the design of the Civil Service Act to perpetuate offices
regardless of whether they [are] needed or not." Amodio v. Civil Serv. Comm'n,
81 N.J. Super. 22, 31 (App. Div. 1963). The testimony and evidence supported
Bayonne's determination that Mulcahy's, Smith's and Parlatti's positions were
unnecessary to complete the MSD's property maintenance enforcement
responsibilities following Bayonne's implementation of the new enforcement
philosophy. As the Commission correctly determined, Mulcahy and Smith
failed to sustain their burden of demonstrating otherwise.
We are not persuaded by Smith's argument that the ALJ's decision should
be deemed adopted by the Commission under N.J.S.A. 52:14B-10(c) because
the Commission did not modify or reject the decision within forty-five days.
Smith's challenge is a limited one: he argues only that the Commission failed
to properly obtain a forty-five-day statutory extension during which it could
reject or modify the ALJ's initial decision.
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N.J.S.A. 52:14B-10(c) provides that "[u]nless the head of the agency
modifies or rejects" an ALJ's decision within forty-five days, it "shall be deemed
adopted as the final decision of the head of the agency." N.J.S.A. 52:14B-10(c).
The statute also allows a "single extension of not more than [forty-five] days"
where "good cause" is shown. 2 Ibid. A request for such an extension "must be
submitted no later than the day on which that time period is to expire." N.J.A.C.
1:1-18.8(b). To request an extension for good cause, the "agency
head . . . [must] sign and forward a proposed order to the Director of the Office
of Administrative Law," who, if he or she approves the request, "shall within
[ten] days of receipt of the proposed order sign the proposed order and return it
to the transmitting agency head, who shall issue the order and cause it to be
served on all parties." N.J.A.C. 1:1-18.8(e). The Commission obtained such an
extension and timely rendered its decision here.
The ALJ issued his decision on November 2, 2016. Under N.J.S.A.
52:14B-10(c), the ALJ's decision would be deemed adopted unless the
Commission modified or rejected the decision within forty-five days, or any
extensions of the initial forty-five-day period. Here, the initial forty-five-day
2
N.J.S.A. 52:14B-10(c) permits additional extensions of time "subject to, and
contingent upon, the unanimous agreement of the parties." No such extension
was obtained or required here.
A-2891-16T1
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period expired on December 17, 2016, but was extended to Monday, December
19, 2016, because December 17, 2016, was a Saturday. See N.J.A.C. 1:1-1.4.
On December 19, 2016, the Commission submitted a proposed order
granting a forty-five-day extension until January 31, 2017, for it to "review the
testimony . . . in order to make a final determination and issue a written
decision." See N.J.A.C. 1:1-18.8(e). Thus, the Commission timely submitted
the extension request to the Director of the Office of Administrative Law within
the initial forty-five day period, see N.J.A.C. 1:1-18.8(b), and the extension was
timely granted by the Director of the Office of Administrative Law on December
20, 2016, within ten days of the request, see N.J.A.C. 1:1-18.8(e). The Director
determined the Commission demonstrated "good cause" for the forty-five-day
extension, and the Commission "mailed [the] executed order to parties" the same
day. See N.J.A.C. 1:1-18.8(e). Thus, the Commission properly requested and
obtained a forty-five-day extension to adopt, reject, or modify the ALJ's initial
decision. See N.J.S.A. 52:14B-10(c).
The Commission also rejected the ALJ's initial decision within the forty-
five-day extension, and petitioners do not argue otherwise. Our Supreme Court
has explained that the Legislature amended N.J.S.A. 52:14B-10(c) "to set a strict
deadline for administrative agencies 'to adopt, reject or modify' an ALJ's
A-2891-16T1
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decision." In re Hendrickson, 235 N.J. 145, 158 (2018) (quoting N.J.S.A.
52:14B-10(c)). "Under the amendment, when the agency does not act within the
forty-five-day statutory timeframe—or within the single extension period not to
exceed forty-five days—the ALJ's decision is 'deemed adopted as the final
decision of the head of the agency.'" Ibid. (emphasis added) (quoting N.J.S.A.
52:14B-10(c)).
Here, the record shows that the Commission acted to reject the ALJ's
initial decision at its meeting "on the [eighteenth] day of January, 2017[]" see
N.J.S.A. 52:14B-10(c), well within the forty-five-day extension deadline that
ended on January 31, 2017. The Commission later formally memorialized its
January 18, 2017 action on February 10, 2018, by publishing its final agency
decision. As we held in Cavalieri, where, as here, an agency "signaled its
intentions to reject the initial decision" within the statutory deadline and "issued
its final decision reasonably promptly thereafter," the ALJ's initial decision is
not deemed adopted pursuant to N.J.S.A. 52:14B-10(c). Cavalieri, 368 N.J.
Super. at 539. We are therefore satisfied there is no basis to conclude the ALJ's
decision should be deemed adopted by the Commission under N.J.S.A. 52:14B -
10(c).
Affirmed.
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