WILLIAM HANCE VS. TOWNSHIP OF MONTVILLE (NEW JERSEY CIVIL SERVICE COMMISSION)

NOT FOR PUBLICATION WITHOUT THE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.

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 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

7 A-1536-16T2
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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