Opinion
DOCKET NO. A-0299-14T4
06-14-2016
IN THE MATTER OF STEPHEN DAVIS, MERCER COUNTY DEPARTMENT OF PUBLIC SAFETY.
Matthew R. Dempsky argued the cause for appellant Stephen Davis (Alterman & Associates, LLC, attorneys; Mr. Dempsky, on the briefs). Stephanie Ruggieri D'Amico, Assistant County Counsel, argued the cause for respondent Mercer County Department of Public Safety (Arthur R. Sypek, Jr., County Counsel, attorney; Kristina E. Chubenko, Assistant County Counsel, of counsel and on the brief). Robert Lougy, Acting Attorney General, attorney for respondent Civil Service Commission (Pamela N. Ullman, Deputy Attorney General, on the statement in lieu of brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Hoffman and Leone. On appeal from the New Jersey Civil Service Commission, Docket No. 2011-1462. Matthew R. Dempsky argued the cause for appellant Stephen Davis (Alterman & Associates, LLC, attorneys; Mr. Dempsky, on the briefs). Stephanie Ruggieri D'Amico, Assistant County Counsel, argued the cause for respondent Mercer County Department of Public Safety (Arthur R. Sypek, Jr., County Counsel, attorney; Kristina E. Chubenko, Assistant County Counsel, of counsel and on the brief). Robert Lougy, Acting Attorney General, attorney for respondent Civil Service Commission (Pamela N. Ullman, Deputy Attorney General, on the statement in lieu of brief). PER CURIAM
Corrections Officer Stephen Davis (Davis) appeals from a final determination of the Civil Service Commission (Commission), which upheld a Mercer County Department of Public Safety (Department) fine in an amount equal to a fifteen-day suspension. We affirm.
The following facts are derived from the record. Davis was employed as a Mercer County Corrections Officer for over twenty-two years. For some months prior to the date of the underlying incident, Mercer County Corrections personnel — namely, Lieutenant Boné and Officer Price — had been delivering packets of updated Standard Operating Procedures (SOPs) to the nearly 300 officers who work in the Mercer County Correction Center. It was common knowledge that the SOPs were being disseminated, but a number of officers had discovered and reported inaccuracies with documents in the SOP packets.
On July 16, 2009, Officer Price attempted to distribute SOPs to various officers, including Davis. Davis refused to sign the acknowledgement form, which stated: "[I] have received the SOP's and . . . [I] will read all issued SOP's". Officer Price reported this incident to Lieutenant Boné. At approximately 1:30 p.m., Lieutenant Boné called Davis' phone extension and spoke with him about the SOPs. He informed Davis "if he wasn't going to sign the SOP's, that he would need to write a report . . . [b]y the end of the business day which would have been 3 p.m." Lieutenant Boné later testified, "I think [Davis] said he understood, there was no problem, and I was expecting [his report] that day." Ultimately, Lieutenant Boné never received an incident report from Davis, nor did Davis sign for the SOPs that day. Rather, Davis finally signed for the SOPs on September 4, 2009, nearly two months after this incident.
On August 11, 2009, the Department served Davis with a Preliminary Notice of Disciplinary Action (PNDA) dated July 28, 2009, charging Davis with: conduct unbecoming a public employee, N.J.A.C. 4A:2-2.3(a)(6), insubordination, N.J.A.C. 4A:2-2.3(a)(2), and other sufficient cause, N.J.A.C. 4A:2-2.3(a)(11). The other sufficient cause was specified as a Step 1 violation of a rule, regulation, policy, procedure, order, or administrative decision, SOP 004, and a Step 2 violation for insubordination, including intentional disobedience or refusal to accept reasonable order, assaulting or resisting authority, or disrespect or use of insulting or abusive language to a supervisor. The PNDA sought a fifteen-day suspension or an equivalent fine. On September 15, 2010, the Department issued a Final Notice of Disciplinary Action (FNDA) dated September 9, 2010, which sustained the charges and imposed a fine of $4,566.90, an amount equal to a fifteen-day suspension.
"Other sufficient cause" has been subsequently recodified as N.J.A.C. 4A:2-2.3(a)(12). --------
Davis filed an appeal with the Commission, which was transmitted to the Office of Administrative Law (OAL). The matter was assigned to Administrative Law Judge Ronald W. Reba (the ALJ). At the hearing, Davis testified that he did not sign for the SOPs because he heard there were problems with them, and he wanted time to review and ensure his packet was correct. Davis confirmed his conversation with Lieutenant Boné, testifying that Lieutenant Boné told him, "If you're not going to sign the SOP's, give me a report by 3 o'clock." Davis, however, stated with certainty he told Lieutenant Boné that he was not refusing to sign for them, despite what Officer Price had said.
Davis testified that he became frustrated over Officer Price not affording him the same opportunity as other officers to review the SOPs. He also stated he did not believe he had to submit a report at 3:00 p.m., because he intended to sign for the SOPs in the future. Davis explained that he and Officer Price had a "testy relationship," and there had been another similar incident between them, also involving the SOPs. Officer Rodriguez also testified on behalf of Davis. He confirmed that there were errors with the SOPs, and in his personal experience, Officer Price permitted him to review them and sign for them several days later after they had been corrected.
Captain Bearden testified on behalf of Mercer County, and explained that he drafted the PNDA and, among other things, handled disciplinary matters. He prepared the PNDA based on Lieutenant Boné's incident report after receiving that submission and meeting with the warden, and confirmed this was Davis' second offense for insubordination. Pursuant to the Mercer County Table of Offenses and Penalties, a second offense for insubordination calls for a fifteen-day suspension.
In addition, Davis was charged with violating a rule or regulation, specifically SOP 004, which required him to obey the order and then appeal. Captain Bearden explained that the charges were based on Davis' failure to comply with the directive and order given by Lieutenant Boné. He further clarified that there are proper procedures Davis should have followed upon receiving an order from a superior officer that he believed was improper, illegal, or immoral. First, the subordinate officer should bring it to the attention of the superior. If the order is not rescinded, the subordinate officer must obey the order and then appeal it to the next authority. This can be accomplished through a grievance process outlined in the officer's contract.
On May 28, 2014, the ALJ's initial decision upheld the disciplinary charges. The ALJ concluded that Davis' conduct constituted conduct unbecoming a public employee, finding:
[Davis] declined to accept and sign for documents that hundreds of his fellow officers had already accepted without prejudice to them, and he purposely did not follow a direct order to submit a report regarding his refusal to sign by the deadline given by his lieutenant, even after acknowledging the directive and stating that he would comply with it.Additionally, the ALJ determined Davis' conduct constituted insubordination and other sufficient cause:
Officer Davis acquiesced to Lieutenant Boné that he knew what was expected of him by the end of the work day, but did not comply with the directive. He intentionally disobeyed a reasonable directive to explain in writing his decision not to sign for the SOP packet that day. I find it unbelievable that an officer working in a paramilitary organization for more than twenty years would not understand the necessity of following orders and corrections center procedures.Finally, the ALJ concluded the discipline imposed by the appointing authority — namely, a fine equivalent to a suspension of fifteen-working days, or $4,566.90 — was appropriate, given that Davis' disciplinary history consists of a three-day suspension in October 2004 for insubordination. The decision was adopted by the Commission in its July 30, 2014 final administrative action. This appeal followed.
On appeal, Davis argues:
POINT I
THE CIVIL SERVICE COMMISSION'S FINAL ADMINISTRATIVE DETERMINATION WAS ARBITRARY, CAPRICIOUS, AND UNREASONABLE, AS THE SUBSTANTIAL CREDIBLE EVIDENCE IN THE RECORD CANNOT SUPPORT THE COUNTY'S CHARGES AGAINST OFFICER DAVIS BY A PREPONDERENCE OF THE EVIDENCE.
A. Officer Davis Neither Obeyed, Refused to Obey, nor Violated Lieutenant Boné's Conditional Order. The Order Was Extinguished When the Condition Precedent Upon Which it was Predicated — Officer Davis' Refusal to Sign for the SOPs — Never Came Into Existence.
B. Officer Davis' Conduct was not Unbecoming of a Public Employee.
C. There is no Conduct Upon Which The Commission may Sustain a Charge of Other Sufficient Cause for Major Disciplinary Action.
POINT II
IN THE ALTERNATIVE, THE CIVIL SERVICE COMMISSION'S FINAL ADMINISTRATIVE DETERMINATION WAS ARBITRARY, CAPRICIOUS, AND UNREASONABLE, AS THE PENALTY WAS CLEARLY EXCESSIVE, AND UNSUPPORTED BY THE SUBSTANTIAL CREDIBLE EVIDENCE.
We have carefully considered the record and conclude that Davis' arguments are entirely without merit. We affirm substantially for the reasons stated by the Commission in its final decision. R. 2:11-3(e)(1)(D). We add the following comments.
It is well established that "[i]n light of the executive function of administrative agencies, judicial capacity to review administrative actions is severely limited." In re Musick, 143 N.J. 206, 216 (1996). We will intervene "only in those rare circumstances in which an agency action is clearly inconsistent with its statutory mission or other state policy." Ibid.
Our review of a final decision of an administrative agency is limited to three inquiries: (1) whether the agency's action is consistent with the applicable law; (2) whether there is substantial credible evidence in the record to support the factual findings upon which the agency acted; and (3) whether, in applying the law to the facts, "the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors." Ibid. (citing Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963)).
Furthermore, when reviewing an agency's factual findings, "an appellate court may not 'engage in an independent assessment of the evidence as if it were the court of first instance.'" In re Taylor, 158 N.J. 644, 656 (1999) (quoting State v. Locurto, 157 N.J. 463, 471 (1999)). The findings of fact made by an administrative agency are binding on appeal if they are supported by substantial, credible evidence. Id. at 656-57 (citing Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)).
We are satisfied that there is sufficient credible evidence in the record to support the Commission's determination that the Department's charges of conduct unbecoming a public employee, insubordination, and disobedience of an order be sustained. Davis' argument that he did not refuse to sign, but rather intentionally did not sign, is a distinction without a difference. Davis argues that he intended to sign in the future after he reviewed the SOPs for errors; however, that was not one of the two options he was given by his superior officer. That Officer Rodriguez was given that option and found errors does not change the order Davis received, nor does his antagonism with Officer Price. To the contrary, SOP 004 required Davis to obey Lieutenant Boné's order to either sign the SOPs or submit a report by the end of the day, and then appeal to a higher authority.
We are additionally satisfied that the Commission did not act arbitrarily, capriciously, or unreasonably when it decided that Davis' $4,566.90 fine — the equivalent of a fifteen-day suspension, and the required penalty for Davis' second insubordination — was appropriate. See In re Carter, 191 N.J. 474, 483-85 (2007) (discussing the State's progressive discipline concept). The penalty was not "so disproportionate to the offense, in the light of all the circumstances, as to be shocking to one's sense of fairness." In re Revocation of the License of Polk, 90 N.J. 550, 578 (1982) (internal quotation marks omitted). Nor are we persuaded that Davis has been "punished enough" merely by being charged or being passed over for promotions.
We have repeatedly recognized "the importance of maintaining discipline within the paramilitary organization to a police department." Rivell v. Civil Serv. Comm'n, 115 N.J. Super. 64, 72 (App. Div.), certif. denied, 59 N.J. 269 (1971). "Refusal to obey orders and disrespect cannot be tolerated. Such conduct adversely affects the morale and efficiency of the department." Ibid. "As long as one remains a member of [law enforcement], he must comport himself properly and not do any acts which tend to impair the morale and discipline of the [] department." Id. at 71. Davis clearly did not follow proper employee protocol.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION