Brady V Board of Review 152 Nj 197 704 a2d 547 (1997

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• Supreme Court of New Jersey.
• 2007
• July
• IN RE HERRMANN

• IN RE HERRMANN Supreme Court of New Jersey. (Jul 16, 2007) Jul 16, 2007
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192 N.J. 19 926 A.2d 350

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• Reduced to its essence, the issue in this appeal is whether the Appellate Division exceeded the proper telescopic of its review when it reversed the penalization imposed by the MSB. We start then by acknowledging the well-recognized principles of judicial review of authoritative agency actions. The telescopic of that review is limited. Come across In re Carter, 191 North.J. 474, 482, 924 A.2d 525 (2007). An administrative bureau's final quasi-judicial conclusion will be sustained unless there is a articulate showing that it is capricious, capricious, or unreasonable, or that it lacks fair support in the record. Come across Campbell five. Dep't of Civil Serv., 39 North.J. 556, 562, 189 A.2nd 712 (1963). Three channels of research inform the appellate review function:Go to
• That deferential standard applies to the review of disciplinary sanctions too. See Knoble five. Waterfront Comm'n of N.Y. Harbor, 67 N.J. 427, 431-32, 341 A.2d 593 (1975); run across more often than not 37 New Jersey Do, Authoritative Police and Practice, § 328, at 333-34 (Steven L. Lefelt) (1d ed. 1988) (hereinafter Lefelt). A reviewing courtroom should alter a sanction imposed by an administrative bureau only "when necessary to bring the agency'south action into conformity with its delegated say-so. The Court has no power to deed independently every bit an administrative tribunal or to substitute its judgment for that of the agency." In re Polk, xc North.J. 550, 578, 449 A.2d seven (1982); see also Lefelt, supra, at 334 (stating aforementioned and that "[a]fter reviewing the statutory authority and the tape, if the court concludes that the sanction is not illegal or unreasonable, the sanction will be affirmed"). In low-cal of the deference owed to such determinations, when reviewing administrative sanctions, "the examination . . . is whether such penalization is so disproportionate to the offense, in low-cal of all the circumstances, as to exist shocking to one'due south sense of fairness.'" Polk, supra, 90 Northward.J. at 578, 449 A.2d seven (citing Pell v. Bd. of Educ., 34 Northward.Y.second 222, 233, 356 N.Y.S.2nd 833, 313 N.Eastward.2d 321 (1974)). The threshold of "shocking" the courtroom's sense of fairness is a difficult 1, not met whenever the court would have reached a dissimilar result.Go to

• (1) whether the bureau'due south activity violates express or unsaid legislative policies, that is, did the agency follow the police force; (2) whether the record contains substantial prove to support the findings on which the bureau based its activeness; and (3) whether in applying the legislative policies to the facts, the agency conspicuously erred in reaching a conclusion that could non reasonably have been fabricated on a showing of the relevant factors.

  [ Mazza v. Bd. of Trs., 143 North.J. 22, 25, 667 A.2nd 1052 (1995) (citing Campbell, supra, 39 Northward.J. at 562, 189 A.second 712).]

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• When an bureau'south decision meets those criteria, then a courtroom owes substantial deference to the agency's expertise and superior knowledge of a particular field. Come across In re License Issued to Zahl, 186 N.J. 341, 353, 895 A.2d 437 (2006); Brady 5. Bd. of Review, 152 Due north.J. 197, 210, 704 A.2d 547 (1997); Greenwood v. State Police Preparation Ctr., 127 N.J. 500, 513, 606 A.2d 336 (1992). Deference controls fifty-fifty if the court would take reached a dissimilar result in the first case. Encounter In re Taylor, 158 N.J. 644, 657, 731 A.2d 35 (1999).Go to
• Thus, progressive field of study has been bypassed when an employee engages in severe misconduct, particularly when the employee's position involves public safe and the misconduct causes risk of damage to persons or property. See, e.one thousand., Henry v. Rahway Land Prison, 81 Northward.J. 571, 580, 410 A.2d 686 (1980); Bowden 5. Bayside Country Prison, 268 N.J.Super. 301, 306, 633 A.2d 577 (App.Div. 1993), certif. denied, 135 N.J. 469, 640 A.2d 850 (1994). In Henry, supra, this Court stated that falsification of a report by a prison employee could subvert order and subject in a prison house. 81 N.J. at 580, 410 A.2d 686. Nosotros concluded that the Ceremonious Service Commission failed to adequately consider the seriousness of the charges and, therefore, held that the Commission's conclusion to reduce the Section of Corrections' penalty of removal to that of a ninety-24-hour interval intermission was arbitrary, capricious, and unreasonable. Ibid.; see also Bowden, supra, 268 N.J.Super, at 306, 633 A.second 577 (progressive discipline not applicable when correction officer's carte playing with inmates subverted discipline at prison).Go to
• The court concluded by emphasizing that, "[a]s a general rule, in reviewing administrative bureau decisions, we accord substantial deference to an bureau caput's choice of remedy or sanction, seeing it as a matter of broad discretion, . . . especially where considerations of public policy are implicated." Id. at 482, 702 A.2d 1298 (citing In re Scioscia, 216 N.J.Super. 644, 660, 524 A.2nd 855 (App.Div.), certif. denied, 107 North.J. 652, 527 A.2d 471 (1987)).Go to
• Since Bock, the concept of progressive bailiwick has been utilized in two ways when determining the advisable penalization for present misconduct. Beginning, principles of progressive subject can back up the imposition of a more astringent penalty for a public employee who engages in habitual misconduct. Come across, eastward.m., In re Hall, 335 N.J.Super. 45, 46, 51, 760 A.2d 1148 (App.Div. 2000) (reinstating town's dismissal of police officer for conduct unbecoming when MSB did not give sufficient weight to officer's previous violations).Get to
• Although progressive subject area is a recognized and accepted principle that has currency in the MSB's sensitive task of meting out an advisable penalty to classified employees in the public sector, that is non to say that incremental subject is a principle that must be practical in every disciplinary setting. To the contrary, judicial decisions have recognized that progressive discipline is not a necessary consideration when reviewing an bureau caput's choice of penalisation when the misconduct is severe, when it is unbecoming to the employee'south position or renders the employee unsuitable for continuation in the position, or when application of the principle would be contrary to the public involvement.Become to
• Indeed, the information gathered in a worker'south investigation must be submitted to the court in back up of an activeness for parental termination or guardianship. Come across Due north.J.S.A. 30:4C-16. Such reports containing a worker'southward first-hand knowledge of the case are treated by the courts as "supplying] a reasonably high degree of reliability as to the accuracy of the facts contained therein." A.W., supra, 103 Due north.J. at 595 n. ane, 512 A.2d 438 (quoting In re Guardianship of Cope, 106 Due north.J.Super. 336, 344, 255 A.second 798 (App.Div. 1969)).Go to

• We believe that . . . the terms should be held to comprehend an employee'south reasonably recent history of promotions, commendations and the like on the ane hand and, on the other, formally adjudicated disciplinary actions as well as instances of misconduct informally adjudicated, and so to speak, past having been previously chosen to the attention of and admitted by the employee.

  [ Id. at 523-24, 186 A.2d 97.]

  See likewise In re Phillips, 117 North.J. 567, 581, 569 A.2d 807 (1990) (stating that "[a]lthough we recognize that a tribunal may not consider an employee's past tape to prove a present charge, . . . that past record may be considered when determining the appropriate penalty for the current offense" (internal citations omitted)); In re Morrison, 216 N.J.Super. 143, 160, 523 A.2d 238 (App.Div. 1987) (acknowledging officer's past record admissible for penalty determination); Twp. of Moorestown v. Armstrong, 89 N.J.Super. 560, 567, 215 A.2d 775 (App.Div. 1965) (holding past record of police officeholder usable only for guidance in determining appropriate punishment for nowadays offense), certif. denied, 47 N.J. eighty, 219 A.2d 417 (1966).Go to
• As the same cases reflect, progressive discipline is a worthy principle but it is not subject to universal application when determining a disciplined employee'southward quantum of discipline. This is an case when the MSB did not apply progressive discipline. As a affair of course, we accord substantial deference to the MSB's selection of sanction. That option is fabricated weightier when, as in this instance, it is the penalty imposed past the appointing authorisation and affirmed by the ALJ. Moreover, we cannot say that the MSB'due south penalization is so wide of the mark as to justify this Court's substitution of its judgment.Go to
• Family Services Specialist trainee Tammy Herrmann was charged by her employer, the Division of Youth and Family Services (DYFS), with bear unbecoming a public employee based on her deportment during an investigation into an allegation of child corruption. DYFS sought to cease her employment. Following a hearing earlier an authoritative constabulary judge (ALJ) in which the charge and punishment were sustained, the Merit System Board (MSB) affirmed Herrmann'south dismissal. On appeal, however, the Appellate Division reversed the dismissal sanction. In re Tammy Herrmann, 387 N.J. Super. 450, 459, 904 A 2nd 764 (2006). The panel adamant that the principle of progressive discipline had vibrancy in this setting and ordered that some lesser penalty than termination be considered on remand. Ibid. We granted the petition for certification filed on behalf of DYFS and the Department of Personnel, 189 N.J. 104, 912 A.2d 1264 (2006), and now reverse and reinstate the punishment imposed by the MSB. Because termination was supported past the record and was neither illegal nor an unreasonable do of the MSB's broad discretion, meet N.J.South.A. 11A:2-6, we defer to the agency caput'south penalty determination. The Appellate Division impermissibly substituted its judgment concerning the proper punishment to be applied and thereby exceeded its say-so.Go to
• Herrmann'due south interactions with J.M. lie at the heart of this disciplinary matter. The ALJ heard divergent accounts most it from the witnesses. In the terminate, the ALJ credited DYFS's witnesses every bit credible, consistent, and believable. Conversely, he did not find Herrmann's explanation to be apparent or believable.Go to
• In conclusion, the MSB decision recognized legitimate public policy reasons for non insisting that DYFS retain an employee who, in then short a time, lost the trust of her employer. The Appellate Sectionalization impermissibly imposed its own judgment as to the proper penalty in this affair when the MSB's penalty could not be said to exist either illegal or unreasonable, allow alone "shocking" any sense of fairness. Therefore, we hold that the Appellate Sectionalisation'due south reversal of Herrmann's removal was in error.Get to
• On August 6, 2001, Herrmann went to the M. home to meet with the family. Co-ordinate to Mrs. G., Herrmann interviewed her for forty-five minutes before stating the purpose of her visit. Once she informed Mrs. M. that there had been an allegation of abuse and that she intended to interview the children individually, Mrs. Chiliad. offered her bedroom, which was air-conditioned, as a comfortable place for conducting the interviews. Mrs. M. showed her the room, specifically drawing Herrmann'due south attention to the presence, in the closet, of oxygen equipment used to treat D.Thousand.'s asthma and Q.T.'s medical conditions. Herrmann talked with each of the four children in the bedroom over the next several hours. Just when Herrmann was about to leave did J.Thousand. finally admit that he started the burn.Go to
• Pursuant to N.J.S.A. 52:14B-10(c), an ALJ conducted a hearing and rendered an Initial Decision setting along his recommended findings of fact and conclusions of constabulary that determined that Herrmann had engaged in conduct unbecoming a public employee. The ALJ discounted the importance of resolving the dispute over the location of the lighter incident, finding it to be immaterial because "the fact that respondent did it at all places in serious incertitude her judgment and her power to properly perform her assigned duties." He found that Herrmann'south actions were unsafe and, further, concluded that the Division had proven that Herrmann'south actions undermined the public trust in and credibility of DYFS.Get to
• On Herrmann's appeal to the Appellate Division, the panel affirmed the MSB conclusion that Herrmann had committed conduct unbecoming a public employee, but vacated Herrmann's removal from her position. In re Tammy Herrmann, supra, 387 N.J.Super. at 459, 904 A.2nd 764. According to the panel, it could not "conclude that the discharge sanction in this matter was warranted by the only accuse lodged against the employee: the unmarried instance of excessive and ill-considered conduct involving the cigarette lighter." Id. at 456-57, 904 A.second 764. The incident "was not then evocative of personal shortcomings as to be sufficiently inconsistent with the duties of the position to warrant dismissal in the absenteeism of any other admissible by tape of employee misconduct." Id. at 458, 904 A.2d 764. Noting that discharge tin be appropriate notwithstanding the lack of a prior disciplinary tape when the human action or acts charged are so egregious or pervasive as to merit discharge, the panel notwithstanding found that Herrmann's acts did not warrant such a punishment. Id. at 458-59, 904 A.2d 764. Appropriately, the panel remanded for reconsideration of a proper sanction with the added direction that the MSB should impose a punishment "better suited to the charge that was filed and sustained." Id. at 459, 904 A.2d 764.Go to
• The second employ to which the principle of progressive discipline has been put is to mitigate the penalty for a current crime. It is in that sense that the MSB cites the principle of progressive discipline when it downgrades a penalisation for an employee who has a substantial record of employment that is largely or totally unblemished by significant disciplinary infractions. See, e.grand., In re Saniuk, 2002 WL 32590661 (North.J. Adm.) (MSB reduced forty-five-day suspension to written reprimand because of employee'due south long record of public service without any major disciplinary infractions). In Stein v. Segmentation of Youth and Family Services, for example, an ALJ recommended reduction of a penalty of removal for a DYFS worker who had been charged with improperly divulging confidential data, constituting deport unbecoming a public employee, N.J.A.C. 4A:ii-2.3(a)(6). 2003 WL 21362739 (N.J. Adm.). The ALJ found the worker'south record from years of service in his position to be "more than commendable" and, in fact, "exemplary," id. at *6, and concluded that the employee's high performance ratings and praise from supervisors warranted a suspension instead of removal, id. at *7.Become to
• Our appellate courts besides have upheld dismissal of employees, without regard to whether the employees have had substantial past disciplinary records, for engaging in deport that is unbecoming to the position. For example, in Division of State Police v. Jiras, the Appellate Division affirmed a State Trooper's dismissal for an unprovoked assault on a prisoner. 305 Due north.J.Super. 476, 478, 482, 702 A.second 1298 (App.Div. 1997). The court determined the infraction was "so serious as to go to the heart of his chapters to part appropriately equally a Country [T]rooper." Id. at 481, 702 A.2d 1298. The court found no obligation to consider a range of penalties based on the employee's past record, or to insist on an incremental sanction. Ibid. Rather, considering the State Police's need to maintain order and discipline among its troopers, the court cited its duty not to substitute its judgment for that of the Superintendent. Ibid. The panel explained thatGo to
• We reverse the Appellate Division judgment in respect of the penalty to be imposed and reinstate the MSB's penalty removing Herrmann from her position.Go to
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• Only the quantum of punishment, and not the sufficiency of the testify in support of the disciplinary charge, is in issue in this entreatment. Therefore, we recite the groundwork evidence to the accuse every bit credited by the ALJ and affirmed by the MSB.Become to
• Mrs. Thou. testified that she was left speechless when she heard well-nigh Herrmann's dangerous action of having an open up flame in close proximity to oxygen equipment. Notwithstanding, although she was upset, Mrs. M. did not protestation at the fourth dimension because Herrmann was threatening to have her children away. Mr. and Mrs. Chiliad. ultimately signed the case management plan that Herrmann had presented to them, but considering they were distressed with DYFS'due south actions, they hired an chaser to claiming the plan. On the day that a hearing apropos the G. family unit's plan was scheduled to have place in Superior Court, a deputy chaser general (DAG) representing DYFS, and Herrmann'due south supervisor, Ms. Stafford-Curl, learned for the first fourth dimension that Herrmann had waved a lit cigarette lighter in front of J.M.'southward face. The newly revealed information was problematic to each, as they explained in their testimony.Go to
• Recently, in In re Carter, supra, 191 N.J. at 483, 924 A.2d 525, we traced the principle of progressive discipline back to West New York v. Bock, 38 N.J. 500, 186 A.2d 97 (1962). In Bock, supra, this Court best-selling that discipline based in function on the consideration of by misconduct can be a factor in the determination of the appropriate penalty for present misconduct. Id. at 522. Bock involved a firefighter who was dismissed from public service based on a blueprint of tardiness that took into consideration the employee's prior disciplinary record. Id. at 503-06, 186 A.2d 97. Nosotros affirmed imposition of the sanction of dismissal and stated that an employee's past record tin exist a relevant consideration when determining the reasonableness of the penalty imposed. Id. at 523, 186 A.2d 97. Our reasoning expanded on the ceremoniousness of progressive discipline for sure types of employment infractions:

  While a single instance may non be sufficient, numerous occurrences over a reasonably short space of time, even though sporadic, may show an attitude of indifference amounting to neglect of duty. Such behave is particularly serious on the part of employees whose job is to protect the public safety and where [they] serve precise shifts to afford continuous protection.

  [ Id. at 522, 186 A.2d 97.]

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• In a classic instance of such use of progressive bailiwick, the Appellate Division cited to an employee'southward history of escalating penalties when it affirmed the MSB'due south termination of a police officer in In re Morrison, supra, 216 N.J.Super, at 147, 160-61, 523 A.2d 238. Morrison had a substantial history of disciplinary suspensions over his seventeen-yr career, with the most recent and weighty suspension (thirty days plus loss of 20 vacation days) occurring only three and a half years earlier. Id. at 160, 523 A.2d 238. That poor tape, coupled with the most recent incident that led to charges relating to an abort fabricated by Morrison tardily i evening, was held to support the MSB's dismissal of the officer. Id. at 160-61, 523 A.2d 238. Every bit the Appellate Division explained, although termination is not lightly imposed, it was non arbitrary, capricious, or unreasonable for the MSB to dismiss Morrison in view of his tape of many prior suspensions, topped off past his latest misdeed. Id. at 161, 523 A.2d 238.Go to
• In reversing, the Appellate Sectionalization stated that the MSB's decision to reduce removal to a six-month suspension was clearly mistaken on that tape and "was so plainly unwarranted that the interests of justice demand intervention and correction." Id. at 332, 707 A.2d 165. Noting that the MSB failed to "requite sufficient weight to Gaines' appalling disciplinary tape," id. at 333, 707 A.second 165, the court concluded that Gaines' employment records showed "habitual misconduct," "an overriding indifference to his employment responsibilities," and "advise that rehabilitation is, at best, a very remote prospect," ibid. The court reasoned that "[thousand]anagement is high among present priorities" of the state-operated school district and that sound operations crave supervisors to manage their employees. Ibid. (citing Land v. Funicello, lx Due north.J. 60, 69, 286 A.2d 55 (Weintraub, C.J., concurring), cert. denied, 408 U.South. 942, 92 S.Ct. 2849, 33 50.Ed.2nd 766 (1972)). Further, the Appellate Partitioning recognized that "a work force cannot exist constructive unless it responds to direction," ibid., and that "[t]he public and, more particularly, the schoolhouse children of the Metropolis of Newark deserve no less," id. at 334, 707 A.second 165. Plain, our case police recognizes that the existence of a dismal disciplinary record can support an appointing authority's decision to rid itself of a problematic employee based on charges that, merely for the past record, ordinarily would have resulted in a bottom sanction.Go to
• Finally, the Appellate Partitioning also has constitute notions of progressive discipline inapplicable when disciplinary charges against a public employee have demonstrated lack of competence or unfitness for a position. Run into Klusaritz v. Greatcoat May County, 387 N.J.Super. 305, 316, 318, 903 A.2d 1095 (App.Div. 2006) (holding that accountant's incompetence warranted dismissal), certif. denied, 191 N.J. 318, 923 A.2nd 232 (2007). In reversing the MSB's insistence on progressive discipline, reverse to the wishes of the appointing say-so, the Klusaritz panel stated that "[t]he [MSB's] application of progressive bailiwick in this context is misplaced and contrary to the public interest." Id. at 317, 903 A.2d 1095. The court determined that Klusaritz'southward prior record is "of no moment" because his lack of competence to perform the chore rendered him unsuitable for the job and subject to termination by the county. Id. at 316, 903 A.2d 1095.Go to

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