Opinion
DOCKET NO. A-0791-12T4
11-21-2014
IN THE MATTER OF ALFRED N. AREZZO, CITY OF HOBOKEN.
Connell Foley LLP, attorneys for appellant Alfred N. Arezzo (John P. Lacey, of counsel and on the brief). Weiner Lesniak LLP, attorneys for respondent City of Hoboken (Mark A. Tabakin, of counsel; Jeanne Ann McManus, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent Civil Service Commission (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Todd A. Wigder, Deputy Attorney General, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Grall, Waugh and Nugent. On appeal from the Civil Service Commission, Docket No. 2011-3567. Connell Foley LLP, attorneys for appellant Alfred N. Arezzo (John P. Lacey, of counsel and on the brief). Weiner Lesniak LLP, attorneys for respondent City of Hoboken (Mark A. Tabakin, of counsel; Jeanne Ann McManus, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent Civil Service Commission (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Todd A. Wigder, Deputy Attorney General, on the brief). The opinion of the court was delivered by NUGENT, J.A.D.
Appellant Alfred N. Arezzo, formerly a construction official for the City of Hoboken, appeals from the Civil Service Commission (CSC)'s final decision upholding his suspension and removal from office. The Commission accepted an Administrative Law Judge (ALJ)'s recommendation to suspend appellant for six months for insubordination and conduct unbecoming a public employee, rejected the ALJ's recommendation to modify the sanction for appellant's destruction of city property from removal to a six-month suspension, and upheld the City's removal of appellant from office.
In this appeal, appellant contends the CSC's final decision should be reversed for three reasons: first, the City disciplined him not for insubordination and destruction of city property, but rather as retaliation for engaging in protected activity; second, the City had no authority to discipline him because only the State may discipline construction officials based on actions relating to their duties; and third, the city failed to prove either that he engaged in the specific conduct alleged or that progressive discipline was considered. Having considered appellant's arguments in light of the record and controlling law, we reject them. The ALJ's factual determinations that appellant was disciplined for conduct unrelated to his duties as a construction official, findings adopted by the Commission, are supported by sufficient credible evidence in the record. The CSC's decision concerning removal of appellant from office is neither arbitrary nor capricious. Accordingly, we affirm.
The disciplinary proceedings against appellant began during his thirty-fourth year as the City's construction code official when the City served him with a preliminary notice of disciplinary action (PNDA) and suspended him for thirty days. The PNDA charged appellant with violating three subsections of N.J.A.C. 4A:2-2.3(a), the civil service administrative code provision that enumerates causes for major discipline: (a)(2), insubordination; (a)(6), conduct unbecoming a public employee; and (a)(11), other sufficient cause (collectively, the "first PNDA charges").
In a two-page addendum to the PNDA, the City included "[s]pecifications." These recounted that appellant disregarded three memoranda directing him and his subordinates to attend any one of six scheduled mandatory "[a]nti-[s]exual [h]arassment" training sessions. The specifications also alleged that in response to the third memorandum, written by City Business Administrator Arch Liston, appellant sent Liston a memorandum that began, "Your attitude and adverse approach to this office is unacceptable, this office operates under state law with mandates for same and accommodations must be made." Appellant's memorandum accused Liston of lack of cooperation with appellant's office on other matters, reminded Liston that appellant's office was "revenue producing," and requested that Liston contact appellant with "accommodating times" in the "pm hours only, so that appointments for inspections can be made to accommodate this seminar and not in the am hours when this office services the public."
When Liston sent another memorandum directing appellant and his personnel to attend the final training session, appellant responded with a memorandum that, among other things, thanked Liston for "putting into writing your incompetence in running your office," reminded Liston that "[t]his office is controlled by the State of New Jersey and not by you[,]" and threatened to file a lawsuit against Liston and the City if Liston continued to "harass or threaten [him] with any disciplinary or termination action[.]" Appellant insisted that Liston accommodate appellant's office by scheduling an afternoon training session. Appellant concluded his memo this way: "Please refrain from sending any further ridiculous memos as this office is too busy and this is time consuming."
In addition to notifying appellant of his thirty-day suspension, the PNDA directed appellant to return all keys in his possession and all city-issued items, including his computer and cell phone. Appellant returned the latter items in what the City alleged were altered conditions. That resulted in the City filing additional disciplinary charges.
The City served appellant with a second PNDA dated ten days after the first PNDA. The second PNDA proposed to remove appellant from office. The PNDA charged appellant with insubordination, conduct unbecoming a public employee, misuse of public property, and other sufficient cause (collectively, the "second PNDA charges"). The specifications alleged that following appellant's suspension, he returned his city-issued cell phone without its SIM card and his city-issued laptop computer without its original hard drive. The specifications also alleged the "cell broadband card is missing."
The City informed appellant of his right to a hearing, but he did not request one. The City sustained all charges in both PNDAs, imposed the disciplinary sanctions that it had proposed, and removed appellant from office on the last day of his thirty-day suspension.
Appellant filed an administrative appeal, which was transmitted to the Office of Administrative Law for a hearing as a contested case. Following eight non-consecutive days of hearings over eight months during which appellant, Liston, and two others testified, the ALJ issued a written decision. The ALJ sustained the first PNDA charges but recommended the discipline be changed from a thirty-day to a six-month suspension. The ALJ also sustained the second PNDA charges though he found that appellant did not take the cell broadband card. The ALJ recommended that the discipline for the second PNDA charges be modified from removal to a six-month suspension.
Appellant and the City filed exceptions and cross-exceptions to the ALJ's decision. The CSC accepted and adopted the ALJ's findings of fact as well as his recommendation to modify the thirty-day suspension on the first PNDA charges to six months. The CSC rejected the ALJ's recommendation to modify appellant's removal for the second PNDA charges to six months and upheld appellant's removal. Appellant filed this appeal from the CSC's final decision.
In the hearings before the ALJ, appellant claimed Liston's treatment of him was a "power play" that violated the law. He pointed out that the City had made arrangements to accommodate police and firemen by having them attend the sexual harassment training seminar during the afternoon. When appellant had requested the same accommodation, it was denied.
Appellant also claimed that once the City established the number of weekly hours its construction code office was to operate, it was prohibited by statute from designating the specific hours the construction official was to work. This decision was solely the construction official's to make. By insisting that appellant attend a seminar during the morning hours when the construction official's office was open, the City was unduly interfering with the construction official's duties and prerogative under the State's Uniform Construction Code Act (UCCA), N.J.S.A. 52:27D-119 to -141. Moreover, the City had no authority to discipline appellant because he was acting solely in the capacity as a State construction official, and therefore was subject to discipline only under the provisions of the UCCA.
Appellant argued that by complaining about Liston violating the UCCA, he, appellant, was engaging in "whistle blowing" activity under the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8, and that the City had violated CEPA by disciplining him for his whistle blowing activity. Lastly, appellant argued that the disciplinary charges were factually frivolous. He denied misusing or damaging city property.
Based on the evidence presented at the hearing and his credibility determinations, the ALJ rejected appellant's arguments. The ALJ found that the UCCA did not control the City's employment practices and that the City had the right to conduct anti-sexual harassment training seminars and to require employees to attend such seminars. After recounting the exchange of memos between appellant and Liston as well as conversations between them and their staffs, the ALJ noted that appellant's attorney had sent a letter to the City acknowledging that appellant "either discarded or destroyed" the SIM card for the cell phone and the laptop computer hard drive.
The ALJ specifically rejected appellant's argument that he had no discretion to attend the training seminar during the morning because he had to be in his office during the posted morning hours. The ALJ based that finding on the testimony of appellant's former secretary, who had explained that code officials were regularly absent from the construction office during the "posted hours" for any number of reasons, such as being sick, being on vacation, using personal days, or being in training. Appellant's former secretary also explained that there was no office practice prohibiting a sub-code official from performing a review outside of the posted hours and that if many code enforcers were absent, either the secretaries would not schedule meetings or reviews would be rescheduled. The ALJ found explicitly that disrupting the office for a two-hour training session would have been no more disruptive than what the construction office usually experienced.
The ALJ concluded, "[a]s was clearly evident during the hearing, [the] appellant and Liston were having a power struggle." The ALJ also concluded that for "non-code-related matters Liston was appellant's superior" and that appellant's actions in response to Liston's directives as well as appellant's testimony "show[ed] a clear disdain for his superior[.]" Finding that "[t]his is clearly a case [where] personality conflicts got in the way of the orderly and rather routine scheduling of a seminar by the City[,]" and emphasizing that Liston was not without fault, the ALJ determined that appellant "went too far when [he] sent the . . . memo to Liston calling him 'incompetent' and describing Liston's memos . . . as 'ridiculous.'"
Although the ALJ found that appellant's attorney had sent a letter to the City admitting appellant "either discarded or destroyed" the SIM card and hard drive, he also noted the testimony of the City's former information technology specialist. He explained that it was not improper for an employee to retain information on a SIM card and that the hard drive appellant installed could be considered to have enhanced the laptop because it had greater capacity than the original hard drive. As previously noted, the ALJ recommended that appellant receive six-month suspensions for both the first and second PNDA charges. The CSC accepted the first recommendation, but rejected the second, upholding appellant's removal from office. We now review the CSC's decision.
Our review of final administrative agency decisions is "limited." In re Stallworth, 208 N.J. 182, 194 (2011) (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579 (1980)) (citing In re Carter, 191 N.J. 474, 482 (2007)). A strong presumption of reasonableness attaches to such decisions. In re Carroll, 339 N.J. Super. 429, 437 (App. Div.), (quoting In re Vey, 272 N.J. Super. 199, 205 (App. Div. 1993), aff'd, 135 N.J. 306 (1994)), certif. denied, 170 N.J. 85 (2001). Consequently, we generally defer to final agency actions, only "reversing those actions if they are 'arbitrary, capricious or unreasonable[.]'" N.J. SPCA v. N.J. Dep't of Agric, 196 N.J. 366, 384-85 (2008) (quoting Henry, supra, 81 N.J. at 579-80).
Under the arbitrary, capricious, and unreasonable standard, our scope of review is guided by three major inquiries: (1) whether the agency's decision conforms with 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. Stallworth, supra, 208 N.J. at 194. "The burden of demonstrating that the agency's action was arbitrary, capricious or unreasonable rests upon the [party] challenging the administrative action." In re Arenas, 385 N.J. Super. 440, 443-44 (App. Div.), certif. denied, 188 N.J. 219 (2006) (citing McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 563 (App. Div. 2002)); Barone v. Dep't of Human Servs., Div. of Med. Assistance & Health Servs., 210 N.J. Super. 276, 285 (App. Div. 1986), aff'd, 107 N.J. 355 (1987).
The deferential standard of review "applies to the review of disciplinary sanctions as well." In re Herrmann, 192 N.J. 19, 28 (2007) (citing Knoble v. Waterfront Comm'n of N.Y. Harbor, 67 N.J. 427, 431-32 (1975)). "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 (alteration in original) (internal quotation marks omitted) (citing In re Polk, 90 N.J. 550, 578 (1982)). "The threshold of 'shocking' the court's sense of fairness is a difficult one, not met whenever the court would have reached a different result." Id. at 29.
With those principles in mind, we turn to appellant's first argument: the City's discipline of appellant constituted retaliation for engaging in protected activity, and therefore, enforcing it would violate CEPA. The argument is factually flawed and without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(E).
The ALJ found as a fact that the City disciplined appellant for insubordination and for misuse of city property, not for engaging in protected activity. The ALJ specifically rejected appellant's claim that he could not attend sexual harassment training because of his morning construction official duties, finding, in effect, that appellant's claim was a pretext and that he refused to attend morning training sessions because he was engaged in a power struggle with Liston. As the ALJ noted, "[t]his is clearly a case [where] personality conflicts got in the way of the orderly and rather routine scheduling of a seminar by the City." The ALJ's factual determinations, which the CSC adopted, were fully supported by sufficient credible evidence in the record as a whole. R. 2:11-3(e)(1)(D). Accordingly, we reject appellant's arguments that he was disciplined in retaliation for refusing to let sexual harassment training interfere with his construction code enforcement duties.
Appellant next contends that the City did not have the authority to discipline him because the UCCA preempts "the field of every aspect of construction regulation" and prohibits local officials from suspending work terminating a construction official "based on [the official's] interpretation and performance of his mandated duties as set forth in [the UCCA]." He argues that the City had no jurisdiction to compel any construction official to undergo training at a specific time because the Department of Community Affairs is charged with determining the qualifications of construction officials and training them. He also argues that municipalities are statutorily prohibited from setting specific work hours for construction officials and that the UCCA prohibits municipal business administrators from issuing ad hoc orders directing construction officials to attend local seminars at the same time they are required by state law to perform their professional duties.
The factual basis of appellant's arguments is again flawed. Appellant was not executing his duties as a construction official when he disparaged and threatened the business administrator. Nothing in the UCCA required or authorized him to remove a SIM card and hard drive from devices owned by the City. And as we have previously noted, the record amply supports the ALJ's finding that appellant refused to attend sexual harassment training not, as he claims, because the training interfered with the performance duties as a construction official, but rather because of his power struggle and personality conflict with Liston.
We agree that the UCCA preempts municipal jurisdiction over matters of code enforcement as well as discipline of construction officials based on their performance of official activities in code enforcement. Nevertheless, municipalities may discipline construction officials for misconduct unrelated to their official activities in code enforcement. See J.P. Prop., Inc. v. Macy, 183 N.J. Super. 572, 576-577 (Law Div. 1982) (explaining that a township manager in a Faulkner Act municipality may impose discipline for such misconduct as "dishonesty, intoxication and other forms of misbehavior not related to Code enforcement"). Municipalities may not, however, "intru[de] upon any area preempted by the State[.]" Id. at 577. In situations involving preempted activities, "the appropriate response is a request to the Department of Community Affairs to investigate and impose discipline under its regulations." Ibid.
In the case before us, the record demonstrates that the ALJ and CSC were well aware of the distinction between discipline for activities related and unrelated to code enforcement. Our standard of review "requires that [we] defer to the specialized or technical expertise of the agency charged with administration of a regulatory system." In re Virtua-West Jersey Hosp. Voorhees, 194 N.J. 413, 422 (2008) (citing In re Freshwater Wetland Prot. Act Rules, 180 N.J. 478, 488-89 (2004)). Such deference is appropriate here.
Lastly, appellant argues that the City failed to prove he engaged in the specific conduct alleged. Although he also asserts in a point heading in his brief that the City did not consider progressive discipline, he does not elaborate on that assertion in his argument. Rather, he attempts to minimize his conduct, implicitly attacks the ALJ's factual determinations, and recasts two of his previous arguments that the City overstepped its authority and retaliated against him in violation of CEPA.
We are unpersuaded by appellant's final argument. The CSC determined that "[w]ith respect to [appellant's] destruction of City-owned property, the appellant's inappropriate behavior in that matter cannot be tolerated." The CSC found irrelevant that appellant was upset with the situation he faced, and it also found irrelevant that he "improved" the computer by installing a hard drive with more capacity. Noting that the hard drive was a property of the appointing authority and that it was "unknown if the hard drive was the only repository that contained confidential or other valuable information concerning public matters[,]" the CSC determined that it could not "permit the continued employment of an individual who willfully destroys public property, especially if that property may contain important information of public concern[.]" The CSC reasoned that "[s]uch an egregious act by a long term employee in a position of public trust cannot be tolerated and is worthy of removal, especially in light of the appellant's other misconduct in this matter."
The CSC's decision is supported by sufficient credible evidence in the record as a whole, R. 2:11-3(e)(1)(D); is not arbitrary, capricious, or unreasonable, In re Arenas, supra, 385 N.J. Super. at 443-44; and does not involve discipline so disproportionate to the offenses that it is shocking to one's sense of fairness. In re Herrmann, supra, 192 N.J. at 28-29. Appellant's arguments are without sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION