IN THE MATTER OF MICKEY YOUNG, ETC. (NEW JERSEY CIVIL SERVICE COMMISSION)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0400-20
IN THE MATTER OF MICKEY
YOUNG, WOODBINE APPROVED FOR PUBLICATION
DEVELOPMENTAL CENTER,
DEPARTMENT OF HUMAN March 10, 2022
SERVICES. APPELLATE DIVISION
___________________________
Argued November 15, 2021 – Decided March 10, 2022
Before Judges Messano, Accurso and Rose.
On appeal from the New Jersey Civil Service
Commission, Docket No. 2020-1186.
Arnold Shep Cohen argued the cause for appellant
Mickey Young (Oxfeld Cohen, PC, attorneys; Arnold
Shep Cohen, of counsel and on the briefs).
Francis X. Baker, Deputy Attorney General, argued
the cause for respondent Woodbine Developmental
Center, Department of Human Services (Andrew J.
Bruck, Acting Attorney General, attorney; Melissa H.
Raksa, Assistant Attorney General, of counsel; Francis
X. Baker, on the brief).
Andrew J. Bruck, Acting Attorney General, attorney
for respondent New Jersey Civil Service Commission
(Eric A. Reid, Deputy Attorney General, on the
statement in lieu of brief).
The opinion of the court was delivered by
ROSE, J.A.D.
Mickey Young appeals from a final administrative action of the Civil
Service Commission, finding it lacked subject matter jurisdiction over Young's
administrative appeal from a reduced suspension imposed by the Department
of Human Services. The sole issue raised on appeal is whether an appointing
authority may unilaterally reduce a sanction from major to minor discipline
after the employee is served with a Final Notice of Disciplinary Action
(FNDA), thereby divesting the Commission of jurisdiction. Because we
conclude the Department's action was consonant with the governing statutory
and regulatory schemes, we affirm the Commission's decision dismissing
Young's administrative appeal.
I.
The facts are straightforward and, for purposes of this appeal, are largely
undisputed. Young is employed as a painter at the Woodbine Developmental
Center, a facility operated by the Department for men with developmental
disabilities. Young also is a member of the International Federation of
Professional & Technical Engineers, Local 195 (Union).
Within a two-month period in 2016, Young was issued two Preliminary
Notices of Disciplinary Action (PNDA) for separate acts of misconduct.
Following a consolidated disciplinary hearing, the Department issued
corresponding FNDAs, upholding the charges and sanctions. Because the
A-0400-20
2
penalties for each action exceeded five days, they were deemed major
disciplinary matters, entitling Young to appeal the decisions to the
Commission pursuant to N.J.S.A. 11A:2-14. The Commission transmitted
Young's timely appeal to the Office of Administrative Law (OAL) as contested
cases. An Administrative Law Judge (ALJ) conducted a hearing and
recommended reversal of the charges and sanctions. In its final November 26,
2018 decision, the Commission upheld the ALJ's initial decision.
Four days later, on November 30, 2018, Young sent a disparaging email
to Steven Katz, the legal specialist who represented the Department at the
hearing before the ALJ. Referencing Young's favorable outcome on the
charges, the email repeatedly stated Katz was a "loser." The email triggered
the charges at issue.
Accordingly, on December 10, 2018, the Department served Young with
a PNDA, proposing a fifteen-day suspension for the following offenses:
conduct unbecoming a public employee, N.J.A.C. 4A:2-2.3(a)(6); other
sufficient cause, N.J.A.C. 4A:2-2.3(a)(12); and verbal abuse of a patient,
client, resident, or employee, Administrative Order 4:08-C-4.1. Following a
departmental hearing in September 2019, the hearing officer upheld the
charges and sanction, and an FNDA was issued on October 17, 2019. Young's
A-0400-20
3
ensuing appeal to the Commission was transmitted to the OAL as a contested
case.
Exercising "managerial discretion," the Department reconsidered
Young's penalty and – three months prior to the September 2020 hearing date –
reduced his suspension to five days. The charges remained unchanged.
Because the penalty no longer exceeded a five-day suspension, the Department
claimed the matter was rendered a minor disciplinary action under the
governing statutes and regulations, divesting the Commission of jurisdiction
and eliminating Young's right to a hearing before the OAL. The Department
noted Young's right to appeal minor disciplinary actions instead was governed
by the collective negotiations agreement (CNA) between the State and the
Union, which provides, in relevant part:
1. There is hereby established a Joint
Union/Management Panel [(JUMP)] consisting of two
(2) individuals selected by the State and two (2)
individuals selected by the Union and a third party
neutral mutually selected by the parties. The purpose
of this panel is to review appeals from Departmental
determinations upholding disciplinary suspensions of
one (1) through five (5) days.
....
5. The panel considerations shall be based upon
the Department or Agency Head or designee's decision
and any documents that have been made a part of the
record of the matter before such Department or
Agency Head or designee. The State and Union panel
A-0400-20
4
members shall discuss each matter on the agenda and
with the assistance of the neutral panel member,
attempt to jointly resolve the appeal. Where the State
and Union panel members agree, the appeal shall be
dismissed or upheld, or the involved penalty may be
reduced. Where the State and Union panel members
do not agree as to the disposition of the appeal, the
neutral panel member will determine whether the
matter raises issues which may warrant submission to
arbitration. In the event the neutral [panel member]
determines that the matter does not raise issues which
may warrant submission to arbitration, such
determination shall be final and the matter closed.
In June 2020, the Department moved for summary decision, seeking to
dismiss Young's appeal for lack of jurisdiction. Young objected, arguing the
Department's "power grab" improperly divested the Commission and, as such,
the OAL of jurisdiction, therefore depriving Young a hearing on the merits.
Following full briefing, another ALJ issued a cogent initial decision.
Finding no issues of fact precluded a decision as a matter of law, the ALJ
surveyed the controlling case law and relevant provisions of the Civil Service
Act, N.J.S.A. 11A:1-1 to -12-6, and its regulations. Reasoning the
Department's "inherent right" to reduce Young's penalty to five days
constituted minor discipline pursuant to N.J.A.C. 4A:2-3.1(a), and the CNA
established an appeal process for minor discipline under N.J.A.C. 4A:2 -3.2(a),
the ALJ concluded Young had no right of appeal to the Commission.
Accordingly, the ALJ granted the Department's motion.
A-0400-20
5
The Commission thereafter considered Young's exceptions and the
Department's reply and conducted an independent review of the record. In its
September 10, 2020 final decision, the Commission accepted the ALJ's initial
decision, dismissing Young's appeal for lack of jurisdiction. This appeal
followed.
On appeal, Young argues the Department's reduction in penalty was
prohibited under the Act and violated his right to due process. He contends the
Act and accompanying regulations make clear that upon issuing an FNDA,
"the appointing authority becomes a litigant" and "cannot unilaterally modify a
penalty." Young further asserts the appeal procedure for minor disciplinary
actions set forth in the CNA does not guarantee a hearing, and even if a
hearing were granted, the arbitrator determines guilt or innocence, not a
change in penalty. As such, Young claims he is left with no recourse to
remove the charges from his personnel file.
II.
Our limited review of an agency decision is well settled. See Russo v.
Bd. of Trs., Police & Firemen's Retirement Sys., 206 N.J. 14, 27 (2011).
Ordinarily, we defer to the Commissioner's determination unless it was
"arbitrary, capricious, or unreasonable." Melnyk v. Bd. of Educ. of the Delsea
Reg'l High Sch. Dist., 241 N.J. 31, 40 (2020). Thus, "an appellate court
A-0400-20
6
ordinarily should not disturb an administrative agency's determinations or
findings unless there is a clear showing that (1) the agency did not follow the
law; (2) the decision was arbitrary, capricious, or unreasonable; or (3) the
decision was not supported by substantial evidence." In re Virtua-West Jersey
Hosp. Voorhees for a Certificate of Need, 194 N.J. 413, 422 (2008); see also
In re Stallworth, 208 N.J. 182, 194 (2011). "When an agency's decision meets
those criteria, then a court owes substantial deference to the agency's expertise
and superior knowledge of a particular field." In re Herrmann, 192 N.J. 19, 28
(2007). The party challenging the administrative action bears the burden of
demonstrating the agency has not made that showing. Lavezzi v. State, 219
N.J. 163, 171 (2014).
"A party may move for summary decision upon all or any of the
substantive issues in a contested case." N.J.A.C. 1:1-12.5(a). The standard for
summary decision motions pursuant to N.J.A.C. 1:1-12.5 is "substantially the
same as that governing a motion under Rule 4:46-2 for summary judgment in
civil litigation." L.A. v. Bd. of Educ. of Trenton, 221 N.J. 192, 203 (2015)
(internal quotation marks omitted). The motion may be granted if the record
"show[s] that there is no genuine issue as to any material fact challenged and
that the moving party is entitled to prevail as a matter of law." N.J.A.C. 1:1 -
12.5(b); see also R. 4:46-2(c); Brill v. Guardian Life Ins. Co. of America, 142
A-0400-20
7
N.J. 520, 528-29 (1995). "Because an agency's determination on summary
decision is a legal determination, our review is de novo." L.A., 221 N.J. at
204.
A reviewing court is "in no way bound by [an] agency's interpretation of
a statute or its determination of a strictly legal issue." Allstars Auto. Grp., Inc.
v. N.J. Motor Vehicle Comm'n, 234 N.J. 150, 158 (2018) (alteration in
original) (internal quotation marks omitted). Nonetheless, "[w]e will overturn
an agency's interpretation of a statute it implements only when it is 'plainly
unreasonable.'" In re Comm'r's Failure to Adopt 861 CPT Codes, 358 N.J.
Super. 135, 149 (App. Div. 2003) (quoting Merin v. Maglaki, 126 N.J. 430,
437 (1992)). We thus afford "substantial deference to the interpretation of the
agency charged with enforcing an act." Ibid.Along those same lines, "appellate review of an agency's choice of
sanction is limited." In re License Issued to Zahl, 186 N.J. 341, 353 (2006).
Courts "will modify a sanction 'only when necessary to bring the agency's
action into conformity with its delegated authority,'" such as, when "'the
agency has mistakenly exercised its discretion or misperceived its own
statutory authority.'" Id. at 353-54 (quoting In re Polk License Revocation, 90
N.J. 550, 578 (1982)).
A-0400-20
8
Guided by these principles, we turn to the relevant sections of the Act
and its accompanying regulations pertaining to the discipline of public
employees. A review of these sections makes clear the Legislature's intent to
differentiate between the appeal rights for those employees subject to
suspensions greater than five days from those suspended for a shorter period.
See N.J.S.A. 11A:2-14.1 The regulation promulgated by the Commission is in
accord. See N.J.A.C. 4A:2-2.9(b).
The Legislature expressly defined the appeal process by reference to the
length of suspension, i.e., "five days or less." N.J.S.A. 11A:2-16.2 The
accompanying regulation tracks the same timeframe including, within the
definition of minor discipline, a suspension of "five working days or less."
N.J.A.C. 4A:2-3.1(a). By comparison, employees suspended for more than
five days, enjoy a right of appeal of the appointing authority's decision to the
Commission pursuant to N.J.S.A. 11A:2-14, which may hear the appeal or
refer the matter to the OAL under N.J.A.C. 4A:2-2.9(b).
1
An employee served with a suspension of five days or less may also appeal
to the Commission if the "employee's aggregate number of days suspended or
fined in any one calendar year is [fifteen] days or more." N.J.S.A. 11A:2-14.
2
Pursuant to the definition set forth in N.J.A.C. 4A:2-2.2(c), the
Commission's use of the term "'days,' shall mean working days, unless
otherwise stated."
A-0400-20
9
N.J.S.A. 11A:2-16 permits a Civil Service employee to appeal a
suspension of five days or less "pursuant to an alternate appeal procedure
where provided by a negotiated contract provision." The corresponding
regulation provides, in relevant part: "Minor discipline may be appealed to the
Commission under a negotiated labor agreement." N.J.A.C. 4A:2-3.7(a).
Where, as here, the "procedures are established by a negotiated agreement,
such agreement shall be the applicable appeal process." N.J.A.C. 4A:2-3.2(a).
Notwithstanding the relevant provisions of the Act and its regulations,
Young argues that on issuing an FNDA, "the appointing authority becomes a
litigant," and the penalty set forth in the FNDA can be changed only by the
agreement of the parties or the Commission's final decision. To support his
position, Young cites N.J.S.A. 11A:2-14 and N.J.A.C. 4A:2-2.6(d). Both
provisions require the appointing authority to furnish the employee with an
FNDA "within [twenty] days of the [appointing authority's disciplinary]
hearing," but neither prohibits the appointing authority from reducing a penalty
after the FNDA is issued. Thus, Young's interpretation of the statute and
regulation finds no support in their plain meaning.
A statute's plain language "is the 'best indicator' of legislative intent."
State v. Rodriguez, 238 N.J. 105, 113 (2019) (quoting DiProspero v. Penn, 183
N.J. 477, 492 (2005)). Courts construe a statute's plain language "in context
A-0400-20
10
with related provisions so as to give sense to the legislation as a whole."
DiProspero, 183 N.J. at 492; see also N. Jersey Media Grp., Inc. v. Twp. of
Lyndhurst, 229 N.J. 541, 570 (2017). "If the plain language leads to a clear
and unambiguous result, then our interpretative process is over." Richardson
v. Bd. of Trs., Police & Firemen's Retirement Sys., 192 N.J. 189, 195 (2007).
It is not the court's function to "presume that the Legislature intended
something other than that expressed by way of the plain language." O'Connell
v. State, 171 N.J. 484, 488 (2002).
Courts interpret regulations in the same manner as statutes. In re
Eastwick Coll. LPN-to-RN Bridge Program, 225 N.J. 533, 542 (2016). "In our
interpretation of regulations, we give effect to their plain language." In re
M.M., 463 N.J. Super. 128, 138 (App. Div. 2020).
The "paramount goal" is ascertaining the regulator's intent, which is
generally found in the regulation's "actual language." U.S. Bank, N.A. v.
Hough, 210 N.J. 187, 199 (2012). The words of a regulation should be given
"their ordinary and commonsense meaning." In re Election Law Enf't Comm'n
Advisory Op. No. 01-2008, 201 N.J. 254, 263 (2010) (internal quotation marks
omitted). Courts should presume the drafter "intended the words it chose and
the plain and ordinary meaning ascribed to those words." Paff v. Galloway
Twp., 229 N.J. 340, 353 (2017).
A-0400-20
11
In the present matter, the governing statute and regulation are clear. The
appointing authority must issue its FNDA within the time constraints set forth
in N.J.S.A. 11A:2-14 and N.J.A.C. 4A:2-2.6(d). No language in these sections
of the Act or the Administrative Code prohibits an appointing authority from
reducing a penalty after the FNDA is issued. Rather, they establish the
procedure by which an appointing authority must issue an FNDA. Because the
terms of the statute and regulation are clear, we decline to construe them to
mean anything beyond their plain terms. See O'Connell, 171 N.J. at 488.
Not surprisingly, Young has not cited any case law – and our
independent research has not revealed any – that supports his interpretation.
Instead, Young's citation to the Court's decision in In re Hendrickson, 235 N.J.
145 (2018), is misplaced. At issue in Hendrickson was "the appropriate level
of deference to be afforded to an ALJ's disciplinary decision that becomes a
final agency determination through the deemed-adopted provision of N.J.S.A.
52:14B-10(c)," which outlines the procedures for contested cases before the
OAL. Id. at 157. While the Court recognized the Commission's authority to
"'adopt, reject or modify' the ALJ's findings and render a final decision" under
N.J.S.A. 52:14B-10(c), the Court did not hold that only the Commission may
modify the penalty sought by the appointing authority. Id. at 153.
A-0400-20
12
As the Department noted in its responding brief, N.J.A.C. 4A:2-2.9(c)
also empowers the Commission to "reverse or modify the action of the
appointing authority." Importantly, however, neither N.J.S.A. 52:14B-10(c)
nor N.J.A.C. 4A:2-2.9(c) proscribes the appointing authority's inherent
discretion to reduce a penalty after an FNDA has been issued to a Civil Service
employee.
Accordingly, we reject Young's contention that the Department
unlawfully reduced his penalty after the FNDA was issued. Nothing in the
record indicates Young challenged the applicability of the Act, the
Administrative Code, or the validity of the CNA, all of which are dispositive
of the Commission's jurisdiction.
We also find unavailing Young's argument that the Department's action
violated his right to due process. To support his claim, Young cites our
decision in Hammond v. Monmouth County Sheriff's Department, 317 N.J.
Super. 199 (App. Div. 1999). Unlike the present matter, however, the issue on
appeal in Hammond concerned the appointing authority's prosecution of
charges it had dismissed after the departmental disciplinary hearing. Id. at
204-05. Simply stated, we concluded an appointing authority may not add
charges to the FNDA, reasoning to hold otherwise would "surcharge the right
A-0400-20
13
to appeal with a cost which violates any decent sense of due process or fair
play." Id. at 206.
Conversely, in the present matter, following issuance of the FNDA, the
Department reduced Young's penalty. The Department did not add new
charges or otherwise amend the existing offenses and, as such, the appointing
authority did not run afoul of our decision in Hammond, or otherwise infringe
on Young's due process rights. Pursuant to the CNA, Young was free to file
an appeal with JUMP. Although Young takes issue with the JUMP process, it
is undisputed he received proper notice of the charges against him and was
afforded the opportunity to defend against the charges at a full and fair
departmental hearing. "As long as principles of basic fairness are observed
and adequate procedural protections afforded, the requirements of
administrative due process have been met." Kelly v. Sterr, 62 N.J. 105, 107
(1973); see also In re Kallen, 92 N.J. 14, 25 (1983).
We therefore conclude Young received adequate notice and an
opportunity to be heard to satisfy administrative due process. Indeed, Young
does not appear to have suffered any meaningful disadvantage by the reduction
in penalty; he no longer faces major discipline, and he retains the right to
challenge the charges and his five-day suspension in accordance with the
CNA.
A-0400-20
14
Moreover, Young's assertion that the appeal process set forth in the CNA
denies him the opportunity to remove the charges from his personnel file
because JUMP can only reduce the penalty is incorrect. The CNA expressly
provides JUMP may affirm or dismiss an appeal of a minor disciplinary
sanction as well as reduce a penalty. Young's misgivings about the adequacy
of the appeal process set forth in the CNA should be directed to the Union and
the State, which negotiated the agreement and are not parties to this appeal.
Thus, the issue is not properly before us. In any event, the record is devoid of
any evidence that JUMP will not consider Young's appeal pursuant to the
procedures set forth in the CNA.
We conclude the Department permissibly exercised its inherent
discretion in reducing Young's penalty to a five-day suspension, thereby
divesting the Commission of jurisdiction under the Act and its accompanying
regulations, and eliminating the right to a hearing before the OAL on the
resulting minor disciplinary action. See Peper v. Princeton Univ. Bd. of Trs.,
77 N.J. 55, 65 (1978) (reiterating the well-established principle "that a court
cannot hear a case as to which it lacks subject matter jurisdiction even t hough
all parties thereto desire an adjudication on the merits"); see also Murray v.
Comcast Corp., 457 N.J. Super. 464, 470 (App. Div. 2019). Having conducted
a de novo review of the record and governing legal principles, L.A., 221 N.J.
A-0400-20
15
at 204, we are satisfied the Commission properly upheld the ALJ's initial
decision, dismissing Young's complaint on summary decision for lack of
subject matter jurisdiction.
Affirmed.
A-0400-20
16