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On July 20, 2010, the Appellate Division decided In the Matter of Latief Dickerson, Hudson County, Docket No.: A-1323-08T2. In the case, Latief Dickerson appealed from a final decision of the Civil Service Commission (“Commission”) terminating his employment as a corrections officer with the Hudson County Department of Corrections (“Department”).

On May 5, 2006, the Department served a Preliminary Notice of Disciplinary Action on Dickerson charging him with: (1) incompetency, inefficiency or failure to perform duties; (2) insubordination; (3) conduct unbecoming an employee; and (4) neglect of duty. These charges stemmed from Dickerson’s failure to satisfy mandatory training requirements and to obtain permission for his outside employment, as well as his arrest in Tuxedo, New York for various motor vehicle violations and criminal possession of a firearm.

Following a departmental hearing, Dickerson received a Final Notice of Disciplinary Action on July 19, 2006, finding him guilty of the charges and ordering his removal from office effective immediately. Dickerson contested the decision and requested a hearing before the Office of Administrative Law. That hearing was held on January 2 and March 12, 2008, before an Administrative Law Judge (“ALJ”).

After the hearings, the ALJ determined that the Department failed to sustain its burden in sustaining the charges against Dickerson with the exception of conduct unbecoming a public employee by driving a motor vehicle while unlicensed. However, given Dickerson’s extensive prior disciplinary history, the ALJ ordered that Dickerson be fined 90 working days’ pay.

The Commission, upon its de novo review of the record, disagreed with the ALJ’s decision and upheld the Department’s decision to terminate Dickerson’s employment. This appeal followed.

On appeal, Dickerson argued that the Commission erred in failing to affirm the decision of the ALJ. Specifically, Dickerson contended that the Commission imposed an improper standard of review when it stated that it did not “agree” with the ALJ’s determination. Rather, Dickerson argued the Commission has the authority to modify or reverse the decision of the ALJ if the decision was not supported by credible evidence in the record or was otherwise arbitrary.

After considering Dickerson’s arguments, the Appellate Division affirmed the Commission’s determination and sustained the removal. The Court found the Commission’s decision comported with the applicable law regarding the review of ALJ decisions and was supported by sufficient credible evidence in the record. Specifically, the Court found, in rejecting and modifying the ALJ’s findings and conclusions, the Commission stated with particularity the reasons for doing so and made new findings supported by competent and credible evidence in the record.

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On May 18, 2010, the Appellate Division decided In the Matter of Linda Reid, Riverfront State Prison, Docket No.: A-3145-08T2. In the case, Linda Reid appealed from the final determination of the Civil Service Commission sustaining the charges of: (1) conduct unbecoming a public employee; and (2) filing a false report; and the sanction of removal from her position as a Senior Corrections Officer at Riverfront State Prison.

Reid began working as a corrections officer at Riverfront State Prison on July 26, 2002. As a result of an incident occurring on August 6, 2005, she was charged with assaulting an inmate and filing a false report in which she represented she had been the victim. The charges were sustained at a departmental hearing and on April 25, 2007, she was removed from employment. Following an appeal, the contested case was transmitted to the Office of Administrative Law, wherein a hearing was conducted on April 30, 2008.

Testimony and evidence were presented by Captain Tommy Stahl regarding the internal affairs investigation, which concluded that Reid had assaulted an inmate and misrepresented that she was the victim; Officers Cherril Davis and Dyshella Kee who were eyewitnesses to the incident and reported that the inmate used profanity towards Reid but did not strike her, and that Reid beat the inmate and falsely claimed he assaulted her; and nurse Evelyn Mamuyac who observed only a slight swelling on Reid’s right cheek and lower lip. Reid testified on her own behalf stating that the inmate used profanities indicating he had to use the restroom after which an argument ensued and the inmate pushed her and hit her in the face, causing swelling to the right side of her face and lip and resulting in a scar under her right eye. She further testified to her exemplary performance assessment review from June 15, 2004 through June 15, 2005.

On November 14, 2008, an Administrative Law Judge (“ALJ”) issued an initial decision, making express credibility assessments and finding Reid engaged in the charged conduct. Based on several inconsistencies in Reid’s testimony, the ALJ discredited her version of the events as self-serving. In determining the appropriate sanction, the ALJ considered Reid’s status as a Senior Corrections Officer, which “subjects her to a higher standard of conduct and responsibility than is required of other public employees.” Consequently, the ALJ found this conduct so egregious as to warrant removal despite the absence of a disciplinary history. On January 16, 2009, the Commission issued a final determination adopting the ALJ’s initial decision as to the charges and the sanction of removal. This appeal ensued.

On appeal, Reid challenged the agency’s determination on the charges as not based on sufficient credible evidence in the record. She further contended the penalty of removal is not reflective of progressive discipline and, as such, the sanction should be reduced.

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On December 24, 2009, the Appellate Division decided In the Matter of Eugene I. Otto, Police Department, Township of Irvington, Docket No.: A-1112-08T3. In the case, Eugene Otto appealed from a final decision of the Civil Service Commission finding that his removal as a member of the Irvington Police Department was justified and dismissing his appeal.

On February 1, 2006, Otto was served with fifteen separate disciplinary charges for violating various provisions of the Irvington Police Manual. Various offenses were alleged, including withholding information, failing to perform his duties, insubordination, using derogatory terms, and being untruthful. Following a departmental hearing, all the charges were sustained, and Otto was removed from the force. 

Otto appealed to the Merit System Board, now known as the Civil Service Commission, and a hearing was held before an administrative law judge who sustained the following charges: one count of conduct unbecoming a public employee, two counts of being untruthful, and one count of using derogatory terms. The administrative law judge also concluded that there was insufficient evidence to sustain the remaining charges and they were dismissed. He also concluded that the charge of using derogatory language was not of sufficient import to warrant significant discipline, but the remaining charges constituted “mutinous and disruptive behavior” that, in light of Otto’s disciplinary hearing, warranted his dismissal from the force. The Civil Service Commission agreed.  This appeal followed.

On appeal, Otto contended that the charges against him should have been dismissed as untimely, that certain evidence was insufficient to support the charges against him, and that the punishment of dismissal was arbitrary and capricious. The Appellate Division found: (1) the disciplinary charges were timely filed within 45 days of the prosecutor’s office advising the township that it had determined that Otto’s statements were not truthful; (2) Otto’s actions constituted conduct unbecoming a public employee; (3) Otto’s charges that that department chief had deliberately shirked his responsibilities and acted out of improper racial motivations was not protected speech and therefore was not speech for which he could not be disciplined; and (4) the sanction of removal was not unduly severe give Otto’s disciplinary record and the gravity of the offenses.  As such, the Court affirmed the Civil Service Commission’s decision.

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On June 8, 2009, 2009, the Appellate Division decided In the Matter of Tanya Johnson, Docket No.: A-0482-07T2. In the case, Tanya Johnson appealed from a final decision of the Merit System Board (“Board”) terminating her employment as a parole officer recruit.

In her position as a recruit, Johnson was required to complete a Police Training Commission (“PTC”) course. She began the basic course on January 9, 2006. On March 24, 2006, she failed a test for unarmed defensive tactics. She was given remediation training, but on March 29, Johnson failed the test again and was dismissed from the PTC course.

On the same date, March 29, 2006, Johnson was served with a notice of dismissal from her position as a parole officer recruit. On March 31, 2006, she was served with a preliminary notice of disciplinary action for failure to comply with N.J.A.C. 4A:2-2.3(a)(11), which required her to successfully complete all of the instructional areas of the training cycle. She was removed effective April 4, 2006, and a departmental hearing was held on July 19, 2006. The charge was sustained.

Johnson appealed to the Department of Corrections (“DOC”) Training Academy on April 20, 2006. The Training Academy, however, was not the proper venue for the appeal and Johnson’s counsel was advised that the appeal had been filed with the wrong party and had to be filed with the PTC. The appeal was not sent to the proper venue until almost a year after her dismissal, however.

Ultimately, the matter was referred to the Office of Administrative Law (“OAL”) and, thereafter, the appointing authority moved to dismiss on the grounds that the appeal was not timely filed with the PTC. The administrative law judge (“ALJ”) granted the motion and the matter was dismissed with prejudice. Johnson appealed to the Board and the Board affirmed the ALJ’s dismissal of the appeal. However, the Board dismissed the appeal without prejudice. This appeal ensued.

Since the dismissal of the appeal was without prejudice, the Appellate Division held the matter was not ripe for appeal because it did not know whether Johnson was ultimately successful in having the PTC accept her untimely appeal. Although Johnson argued that the Court should order a preliminary hearing on the merits, the Court determined it could not do so since Johnson has not complied with the procedural requirements for an administrative hearing. Accordingly, the Court dismissed the appeal without prejudice because is interlocutory.     

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