Opinion
DOCKET NO. A-0699-13T4 DOCKET NO. A-0700-13T4
06-21-2016
IN THE MATTER OF SHAWN PRESSLEY, DEPARTMENT OF CHILDREN AND FAMILIES
Stephen E. Klausner argued the cause for appellant Shawn Pressley. Adam Verone, Deputy Attorney General, argued the cause for respondent Department of Children and Families (Robert Lougy, Acting Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Mr. Verone, Deputy Attorney General, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Lihotz and Nugent. On appeal from the Civil Service Commission, Docket No. 2012-1644 and 2012-3075. Stephen E. Klausner argued the cause for appellant Shawn Pressley. Adam Verone, Deputy Attorney General, argued the cause for respondent Department of Children and Families (Robert Lougy, Acting Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Mr. Verone, Deputy Attorney General, 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
Appellant Shawn Pressley, a former employee of respondent the New Jersey Department of Children and Families (Department), appeals from a final decision of the Civil Service Commission (CSC) addressing two issues arising during the course of his employment. The first concerns the imposition of discipline for misconduct, which the CSC affirmed (A-0699-13). The second challenged appellant's release from employment following a probationary period, which was also upheld (A-0700-13). There were separate hearings conducted in these matters by the Office of Administrative Law before the same Administrative Law Judge (ALJ). At the first hearing, the ALJ considered whether appellant established the Department acted in bad faith by discontinuing his employment following a working "test period." In the second, the ALJ reviewed the disciplinary charges and the penalty imposed. Testimony from four Department employees was essentially the same in both hearings. The testimony of Richard Firrito was provided in the second hearing that reviewed the disciplinary charges and the imposed consequences. Appellant testified on his behalf in both hearings.
We consolidated the appeals to address all issues in a single opinion. Following our review, we affirm both agency decisions.
Appellant was hired as a family service worker for the Department's Passaic North office. His duties included transporting Department clients, some of whom were children. A Final Notice of Disciplinary Action was issued on March 27, 2012. Appellant challenged the determination, which was certified as a contested case, N.J.S.A. 52:14B-1 to 15 (N.J.S.A. 52:14F-1 to 13), and transferred to the Office of Administrative Law for an evidentiary hearing, N.J.A.C. 4A:2-2.9.
Appellant's supervisor testified she received a complaint in June 2011, regarding appellant's performance and conduct that violated the State vehicle policy (the policy). Specifically, a caller informed her appellant was observed driving while using his cell phone. She counseled appellant, reminded him to follow the policy, and issued a written warning. A second complaint, received in July 2011, stated appellant was observed using his cell phone while transporting someone in a State vehicle. Appellant's supervisor again spoke to him. Appellant denied someone was in the car. No action was taken. A third incident was recorded on August 11, 2011, when appellant failed to sign out a vehicle. Appellant testified he did not have time to complete the forms between assignments because he did not want to be late.
The two complaints allege appellant was driving while using his cell phone, although anonymously issued, were reviewed by another Department worker who handles human resources and records and checks vehicle complaints. When she receives a complaint that includes a vehicle number and license, she determines the Department employee assigned to use the vehicle and who was driving at the time of the incident. She also spoke to appellant after the June and July complaints alleging his cell phone use, which he denied.
The final incident resulted from a complaint filed by Richard Firrito, a United States Park Police officer, who, as he drove home from work on Sunday, September 18, 2011, observed a State vehicle driving erratically southbound on the New Jersey Turnpike. Firrito testified the vehicle, occupied by a male African-American driver, also had a child in a rear car-seat, switched lanes to pass traffic, passed him and continued at a high rate of speed. He followed the State vehicle and recorded its license plate number. Firrito estimated the vehicle's speed reached 100 miles per hour during this encounter.
Appellant's supervisor testified the vehicle's mileage records reflected appellant drove 619 miles from September 16 to 19, 2011. When asked, appellant could not account for 300 miles of use. The supervisor completed appellant's progress reports in September and October 2011, issuing an unsatisfactory rating because of the documented incidents. Appellant refused to sign the reports.
Appellant also testified. He noted his position immediately prior to working at the Department's Passaic North office ended when the facility closed. He denied understanding his transfer to the Passaic North office was subject to a probationary "work test" period.
Appellant addressed the complaints received alleging cell phone use and acknowledged he was counseled regarding the policy; however, he denied committing the claimed violations. As to the vehicle use on September 18, he explained the circumstances causing him to take the State vehicle home and admitted he used it to run errands that weekend. Appellant denied having a child in the vehicle, but admitted he was driving a State vehicle on Sunday, which he knew was not permitted. Appellant explained he took the vehicle home because he was to pick up and transport Division clients at 4 a.m. Monday morning, a time when the State van lot was locked. Further, on the preceding Friday, appellant's assignment resulted in his late return making him unable to retrieve his personal car and have another employee drive the State van to his home for assignment on Monday. He drove the State van home, admittedly, without permission, stating he did not understand this action was prohibited.
Appellant received no further violations or complaints after September and requested he be given an additional probationary period. Instead, he was released from employment on November 9, 2011, at the conclusion of the working test period.
The ALJ reviewed the evidence presented during the first hearing. In her April 22, 2013 decision, she concluded the Department acted in bad faith in terminating appellant at the conclusion of his working test period because the facts underpinning alleged unacceptable performance were not witnessed by any of the testifying Department employees. The ALJ also concluded the callers relating driving violations, including the September 18, 2011 incident, were anonymous, yet there were no similar complaints from Department clients. Accepting the totality of the circumstances, the ALJ concluded appellant must be afforded a new working test period.
Two months later, the ALJ concluded the hearing and issued her initial decision regarding appellant's appeal from disciplinary charges arising from the same facts. Firrito testified at this hearing.
Specifically, appellant was charged with:
1. Incompetency, inefficiency or failure to perform duties.
2. Insubordination.
. . . .
6. Conduct unbecoming a public employee.
7. Neglect of duty.
8. Misuse of public property, including motor vehicles.
[N. J.A.C. 4A:2-2.3(a).]
In her June 17, 2013 decision, the ALJ credited Firrito and found appellant was speeding while driving a State vehicle on Sunday to run errands without permission. She concluded the Department met its burden and proved the charge of misuse of State property. However, she found appellant credibly refuted the anonymous reports he used his cell phone while driving, which the Department did not witness. Accordingly, the remaining charges were dismissed. The ALJ also concluded the penalty imposed was too harsh and recommended a three-day suspension.
The Department filed exceptions and appellant filed cross-exceptions. The CSC reviewed the records de novo and issued a final action addressing both matters in a single decision, filed August 15, 2013. Although it adopted the ALJ's factual findings, the CSC rejected her recommendations. Specifically, the CSC rejected the conclusion appellant satisfied his burden of showing that his working test period was conducted in bad faith. Following its review, the CSC concluded the facts reveal sufficient problems during the working test period to justify appellant's release, noting appellant was counseled and issued a formal reprimand. Also, a disciplinary suspension was issued following the September 18, 2011 incident, which directly related to appellant's job performance. The CSC emphasized appellant's conduct could not be minimized and he failed to follow his supervisor's directions, which equated to unsatisfactory job performance. The CSC concluded the Department's release of appellant at the end of his working test period was justified.
On the disciplinary action, the CSC accepted the ALJ's recommendations except the three-day period of suspension, finding a more significant 120-day suspension was appropriate, in light of the offense. Appellant also appealed from this final decision. We consider his challenges.
We note the well-recognized standards that guide our review of agency action. Appellate courts have "a limited role" in the review of administrative agency determinations. In re Stallworth, 208 N.J. 182, 194 (2011) (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579 (1980)); In re Carter, 191 N.J. 474, 482 (2007). "In order to reverse an agency's judgment, an appellate court must find the agency's decision to be 'arbitrary, capricious, or unreasonable, or [ ] not supported by substantial credible evidence in the record as a whole.'" Stallworth, supra, 208 N.J. at 194 (alteration in original) (quoting Henry, supra, 81 N.J. at 579-80 (in turn citing Campbell v. Dep't. of Civil Serv., 39 N.J. 556, 562 (1963))).
In general, appellate review is limited to determining:
(1) whether the agency's action violates express or implied legislative policies, that is, did the agency follow the law; (2) whether the record contains substantial evidence to support the findings on which the agency based its action; and (3) whether in applying the legislative policies 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.
[Carter, supra, 191 N.J. at 482-83 (quoting Mazza v. B[d.] of Trs., Police & Firemen's Retirement Sys., 143 N.J. 22, 25 (1995)).]
"[I]f in reviewing an agency decision an appellate court finds sufficient credible evidence in the record to support the agency's conclusions, that court must uphold those findings even if the court believes that it would have reached a different result." In re Taylor, 158 N.J. 644, 657 (1999); see also Carter, supra, 191 N.J. at 483 (noting that a reviewing court "may not substitute its own judgment for the agency's, even though the court might have reached a different result").
[In re Carluccio, 426 N.J. Super. 15, 24 (App. Div. 2012).]
On appeal, appellant maintains the CSC's decisions to impose a 120-day suspension and uphold his termination at the conclusion of his working test period are arbitrary, capricious and unreasonable, and not supported by substantial evidence. His arguments identify items in Firrito's testimony, such as the color of the van he observed on September 18, the limited description of the occupants, and his failure to detail his traffic enforcement experience, so as to warrant acceptance of his opinion of the purported speed of the vehicle, arguing the heavy reliance on Firrito's credibility was unwarranted. We disagree.
The record contains substantial evidence supporting the CSC's findings. Despite receiving warnings and being counseled regarding the State vehicle policy after the two anonymous telephone complaints, appellant thereafter failed to sign out a vehicle; was unable to account for 300 miles of use; admitted he drove a State vehicle for personal errands; and drove in an erratic manner while speeding. Appellant's position requires he drive almost daily. His inability to abide not only with the Department's vehicle policy, but also with the traffic laws of the State prove he is unwilling or unable to perform the position as required. The record shows prior warnings and directives to familiarize himself with the policy went unheeded. This is amply demonstrated by Firrito's recitation of appellant's driving on September 18, 2011 and proves appellant was insubordinate, committed conduct in violation of his duty, and misused State property.
Importantly, appellant was ably represented by counsel who actively cross-examined Firrito in the administrative hearing. Any discrepancies in Firrito's testimony were not considered significant enough to undermine unchallenged facts regarding appellant's motor vehicle operation on the New Jersey Turnpike. Firrito explained he was driving 65 miles per hour when appellant passed him at a high rate of speed. Whether appellant was actually traveling the 100 miles per hour Firrito estimated is not important because the facts show appellant exceeded the posted speed limit and was weaving between lanes to move ahead of the traffic.
We note Firrito was not offered as an expert witness, rather he presented his observations and lay opinion regarding appellant's speed and quality of driving. See N.J.R.E. 701 ("If a witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences may be admitted if it (a) is rationally based on the perception of the witness and (b) will assist in understanding the witness' testimony or in determining a fact in issue."). The topics fell within the scope of lay opinion as they are ones which require no expert qualifications. State v. McLean, 205 N.J. 438, 458 (2011). Permissible lay opinions include estimates of the speed at which a vehicle was traveling. State v. Locurto, 157 N.J. 463, 471-72 (1999) (permitting lay opinion about speed of vehicle based upon observation); see also Pierson v. Frederickson, 102 N.J. Super. 156, 161-63 (App. Div. 1968) (permitting lay opinion about a vehicle's speed based upon auditory perception).
Regarding Firrito's credibility, appellant next suggests he was denied due process, in part, because Firrito was "inappropriately treated . . . with the special respect that is improperly provided to a witness who is not testifying as a police officer." This argument lacks sufficient merit to warrant extensive discussion in our opinion. R. 2:11-3(e)(1)(E). We add these brief comments.
Appellant misconstrues State v. Frisby, 174 N.J. 583, 595-96 (2002), which disallowed one testifying police officer from vouching for the credibility of another. No such thing occurred here. Firrito related his observational testimony, nothing more. No other Department witness vouched for his credibility. Further, the ALJ's credibility findings acknowledged Firrito's police experience regarding traffic enforcement, to which Firrito testified. Although appellant testified and denied he was speeding or that a child was in the vehicle, he did not deny he was driving a State vehicle in the area and at the time identified by Firrito, and could not refute the van held the license plate reported by Firrito on September 18. The ALJ believed Firrito, not appellant. Firrito's testimony was not found credible because he was a police officer, but because of the uncontroverted facts he related.
Appellant also challenges the use of "hearsay documents" that included statements from anonymous callers. Appellant argues he was denied the right to confront these witnesses. We are not persuaded.
Hearsay is not prohibited in agency actions, if corroborated. The reports from anonymous complainants were relevant to show appellant was previously counseled, warned, and given the policy. These hearsay statements were not the foundation of the disciplinary charges or appellant's release at the conclusion of his probationary period. They were corroborative of his disregard of the policy after being counseled and warned.
We conclude the CSC's final decision to impose a 120-day disciplinary suspension for the September 18, 2011 incident is supported by substantial credible evidence in the record and is not arbitrary, capricious or unreasonable. We also conclude the CSC properly concluded the Department did not act in bad faith when releasing appellant following his working test period because appellant engaged in improper dangerous conduct in disregard of the motor vehicle laws on September 18, despite being counseled and warned. Further, although told to abide by the policy, appellant disregarded it, using a State vehicle for his personal use and not complying with required record keeping.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION