NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1536-16T2
WILLIAM HANCE,
Respondent,
v.
TOWNSHIP OF MONTVILLE,
Appellant.
___________________________________
Argued May 1, 2018 – Decided September 5, 2018
Before Judges Mawla and DeAlmeida.
On appeal from the New Jersey Civil Service
Commission, Docket No. 2015-2332.
Adam S. Abramson-Schneider argued the cause
for appellant (Cleary Giacobbe Alfieri Jacobs,
LLC, attorneys; Matthew J. Giacobbe, of
counsel; Adam S. Abramson-Schneider, on the
brief).
Joel M. Bacher argued the cause for respondent
(Joel M. Bacher and Timothy J. Foley, on the
brief).
PER CURIAM
Montville Township (Township) appeals from a decision of the
Civil Service Commission (Commission) dismissing several
disciplinary charges against its employee William Hance, as well
as the discipline the Commission imposed on Hance on the single
charge it sustained, and the award of attorney's fees and costs
against the Township. We affirm.
I.
The following facts are taken from the record. In 2014,
Hance had been a civil-service employee for twenty-four years, the
last nineteen of which as a truck driver in the Township Department
of Public Works (DPW). In that position, Hance patched potholes,
cut grass, dragged and groomed ballfields, and picked up garbage.
He was scheduled to work Monday through Friday, from 7:00 a.m.
until 3:30 p.m. His workday included one thirty-minute lunch
break and two fifteen-minute coffee breaks.
Hance testified that public works employees were expected to
work eight hours a day, but were only assigned six hours of work
per day. According to Hance, employees were expected to fill
their remaining workday with extended breaks. He testified that
he always completed the jobs he was assigned, and then drove around
town to fill the remainder of his time.
During 2014, John Perry became the Township's Director of
Public Works and Water and Sewer Utilities. Perry received reports
of DPW employees taking extended breaks. He held an October 22,
2014 meeting during which he informed employees of the complaints
he had received, reminded them about the Township's break policy,
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and warned them that they would be disciplined if caught violating
the policy.
Hance was at the meeting and understood Perry's instructions.
However, he continued to take extended breaks as he had in the
past. Perry documented what he alleged were extended breaks taken
by Hance on sixteen days between November 7 and December 23, 2014,
by cross-referencing GPS data tracking the movements of the
Township trucks Hance was assigned to drive with Hance's log
sheets. Hance denied that he took the specific breaks on the
specific days alleged by Perry, but acknowledged taking extended
breaks.
On December 26, 2014, the Township served Hance with a
Preliminary Notice of Disciplinary Action charging him with: (1)
incompetency, inefficiency, or failure to perform duties, N.J.A.C.
4A:2-2.3(a)(1); (2) chronic or excessive absenteeism or lateness,
N.J.A.C. 4A:2-2.3(a)(4); (3) conduct unbecoming a public employee,
N.J.A.C. 4A:2-2.3(a)(6); and (4) neglect of duty, N.J.A.C. 4A:2-
2.3(a)(7). Hance requested a departmental hearing.
After the departmental hearing, the Township sustained all
charges against Hance. On January 5, 2015, the Township issued
Hance a Final Notice of Disciplinary Action (FNDA) terminating his
employment effective immediately. On January 21, 2015, Hance
appealed the FNDA to the Commission.
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On February 20, 2015, the Commission transmitted the matter
to the Office of Administrative Law for a hearing. An
Administrative Law Judge (ALJ) held a hearing on April 21, 2016.
In an August 31, 2016 written decision, the ALJ sustained only the
charge of conduct unbecoming a public employee. Although noting
that Hance disputed the specific times and dates of the alleged
extended breaks, the ALJ found
[w]hether or not Hance took these specific
breaks in these exact amounts is academic,
because the fact remains that Hance admitted
that he spent approximately two hours per day
on break, some of it outside Montville, and
it is this admission for which Hance will be
disciplined.
Notably, the ALJ concluded that the record contained no evidence
that Hance ever failed to complete tasks assigned to him each day,
or that additional tasks would have been assigned to him if he had
reported that he had completed his work rather than taking extended
breaks to fill the remainder of his time. The ALJ dismissed the
remaining charges, finding that the Township did not meet its
evidentiary burden on those allegations.
On the single charge sustained at the hearing, the ALJ
determined that Hance should be suspended for fifteen days without
pay. He reasoned that termination was inappropriate because Hance
had no prior disciplinary record, and his conduct did not concern
public safety or cause a risk of harm to persons or property.
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Furthermore, the ALJ found that two other DPW employees who
violated the Township's break policy were suspended for fifteen
days without pay. Finally, the ALJ ordered the Township to pay
Hance's attorney's fees and costs on the dismissed charges.
The Township filed exceptions with the Commission pursuant
to N.J.S.A. 52:14B-10. The Township disputed the ALJ's
determination that the record did not support the dismissed
charges. In addition, the Township challenged the adequacy of the
discipline recommended on the single sustained charge, argued that
the ALJ improperly relied on discipline imposed on other employees,
and awarded Hance attorney's fees and costs in contravention of
Commission regulations.
The statutory deadline for the Commission to issue its final
decision initially was October 15, 2016. The Commission secured
an extension of that deadline to November 29, 2016. Because one
of the three Commission members was recused from hearing this
matter, the Commission lacked a quorum to decide the Township's
exceptions. See N.J.S.A. 11A:2-3. Although the Commission sought
the consent of the parties to secure a second forty-five-day
extension pursuant to N.J.S.A. 52:14B-10(c), Hance did not consent
to the second extension. Therefore, under N.J.S.A. 52:14B-10(c),
the ALJ's decision was deemed adopted by the Commission. This
appeal followed.
5 A-1536-16T2
II.
Typically, where an agency issues a final decision, our review
is limited. Lavezzi v. State, 219 N.J. 163, 172 (2014). We will
not disturb the final determination of an agency unless shown that
it was "arbitrary, capricious or unreasonable, or it is not
supported by substantial credible evidence in the record as a
whole." Id. at 171 (citing Prado v. State, 186 N.J. 413, 427
(2006)). This highly deferential standard reflects the
Commission's expertise in administering its legislative authority.
In re Stallworth, 208 N.J. 182, 194 (2011).
Recently, we held that where the decision under review was
not independently issued by the Commission, but "deemed adopted"
by operation of N.J.S.A. 52:14B-10(c), it "should not be reviewed
deferentially." In re Hendrickson, 451 N.J. Super. 262, 273 (App.
Div.), certif. granted, 231 N.J. 143 (2017). Instead, "the
familiar standard of review for bench trials" will apply. Ibid.
"The ALJ's factual findings will be affirmed to the extent they
are supported by substantial credible evidence in the record. No
deference will be accorded to h[is] legal conclusions; they will
be reviewed de novo." Ibid. (citing Zaman v. Felton, 219 N.J.
199, 215-16 (2014)). The Township has the burden of proof,
N.J.S.A. 11A:2-21 and N.J.A.C. 4A:2-1.4, and must establish the
6 A-1536-16T2
truth of the charges by a preponderance of the evidence. In re
Polk, 90 N.J. 550, 560 (1982).
After a careful review of the record and applicable legal
precedents we conclude that the record contains substantial
credible evidence to support the ALJ's findings of fact and
conclusions of law. It is undisputed that Hance took longer breaks
than permitted by Township policy. In addition, there is ample
evidence in the record supporting the finding that during the
excessive breaks Hance left the Township in violation of its
policy. These findings support the ALJ's conclusion that Hance
engaged in conduct unbecoming a public employee.
We disagree with the Township's argument that the ALJ erred
by not concluding that Hance engaged in chronic or excessive
absenteeism or lateness, N.J.A.C. 4A:2-2.3(a)(4). Absenteeism
does not apply here, as there is no allegation or evidence in the
record that Hance failed to report to work on any date. Nor is
there any evidence that Hance ever arrived to work after his
scheduled start time, obviating a charge of chronic lateness. We
are not convinced that excessive breaks amount to either an absence
from work or a late return to work within the meaning of N.J.A.C.
4A:2-2.3(a)(4).
Similarly, we reject the Township's argument that the ALJ
erred by not concluding that Hance neglected his duties pursuant
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to N.J.A.C. 4A:2-2.3(a)(7). There is substantial credible
evidence in the record supporting the ALJ's conclusion that Hance
performed the tasks assigned to him each day of work. The Township
did not produce evidence that Hance had a duty to inform his
supervisor that he had time to complete additional assignments.
To the contrary, the ALJ found that for many years a lack of work
at the DPW resulted in employees, including Hance, being assigned
six hours of work for eight-hour days.
We also find that the ALJ properly considered Hance's prior
disciplinary record, the severity of the offense, and the public
interest when determining the sanction imposed. Under the well-
established concept of progressive discipline, an employee's first
infraction that does not threaten public safety, endanger persons
or property, constitute severe misconduct, or render the employee
unsuitable to continue in his position, will rarely support
termination. In re Herrmann, 192 N.J. 19, 33 (2007). The fifteen-
day suspension without pay imposed here is not "so disproportionate
to the offense, in the light of all of the circumstances, as to
be shocking to one's sense of fairness." Stallworth, 208 N.J. at
195 (quoting In re Carter, 191 N.J. 474, 484-85 (2007)). To the
contrary, the sanction is an appropriate and measured response to
Hance's infraction.
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Finally, we find no abuse of discretion in the ALJ's award
of attorney's fees and costs to Hance, who prevailed on most of
the charges brought by the Township, and retained his employment
despite the Township's attempt to secure his termination. See
N.J.A.C. 4A2-1.5(b).
We have considered the other arguments raised on appeal, and
conclude they lack sufficient merit to warrant discussion in a
written opinion. R. 2:11-3(e)(1)(E).1
Affirmed.
1
Having determined that the ALJ's determination satisfies the
less deferential standard applicable under Hendrickson, we need
not address Hance's argument that the holding in Hendrickson should
not be applied retroactively to this appeal.
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