NOT FOR PUBLICATION WITHOUT THE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-1708-16T2
IN THE MATTER OF
ERIC HANDELMAN,
NEW JERSEY DEPARTMENT
OF TRANSPORTATION.
_______________________
Argued May 2, 2018 – Decided June 25, 2018
Before Judges Fuentes, Koblitz, and Suter.
On appeal from the Civil Service Commission,
Docket No. 2016-718.
Daniel J. Zirrith argued the cause for
appellant Eric Handelman (Law Offices of
Daniel J. Zirrith, LLC, attorneys; Daniel J.
Zirrith, of counsel and on the brief).
Joshua Cohn, Deputy Attorney General, argued
the cause for respondent New Jersey Department
of Transportation (Gubir S. Grewal, Attorney
General, attorney; Melissa H. Raksa, Assistant
Attorney General, of counsel; Nonee Lee
Wagner, Deputy Attorney General, on the
brief).
Gubir S. Grewal, Attorney General, attorney
for respondent Civil Service Commission (Alan
C. Stephens, Deputy Attorney General, on the
statement in lieu of brief).
PER CURIAM
Eric Handelman appeals the November 30, 2016 Final
Administrative Action of the Civil Service Commission (Commission)
that denied reconsideration of a five workday suspension imposed
by the Department of Transportation (DOT) against Handelman. We
affirm the Commission's final agency decision.
I
Handelman was DOT's Ethics Liaison Officer (ELO), within
DOT's Office of Inspector General (OIG), when Johanna Jones became
the Inspector General in July 2012. She met weekly with Handelman
beginning in October 2012, to ensure that his work aligned "with
OIG priorities." He prepared materials for the meetings that
reported on the status of various types of ethics requests he
received from DOT employees for review as ELO. Jones said later
that Handelman did not advise her of any backlog in these reviews.
On July 17, 2013, DOT's Human Resources Director Jeanne
Victor and Lisa Webber, a Human Resources Manager, told Jones that
Handelman "had not been leading ethics training for new employees
since October 2012," which meant that from October 2012 to July
2013, DOT's 119 new employees had not had ethics training. Shortly
after this, Jones told Handelman to "remediate his omission" and
by early August 2013, he was provided with a spreadsheet of DOT's
employees who needed ethics training.
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In September 2013, Handelman voluntarily transferred out of
the OIG to DOT's Right of Way section. Jones gave him a calendar
that showed his responsibilities for the transition so there would
be an "orderly departure." They agreed Handelman would be
responsible for completing the ethics requests he received for
review before October 4, 2013, but that requests received after
that date would be completed by OIG.
On October 9, 2013, while cleaning out Handelman's office,
OIG staff discovered 1267 unfinished ethics request forms,
submitted to him by DOT employees. These included outside activity
questionnaires, requests for attendance at events, supervisor
conflicts of interest, and pre-hire ethics questionnaires. Jones
also learned that the 119 employees hired from October 2012 to
July 2013, had not yet had ethics training.
On March 6, 2014, DOT served Handelman with a Preliminary
Notice of Disciplinary Action (PNDA), seeking his suspension for
ten days. Although the PNDA was amended three times after that,
each PNDA charged him with neglect of duty, N.J.A.C. 4A:2-2.3(a)(7)
and insubordination, N.J.A.C. 4A:2-2.3(a)(2). The incidents
giving rise to the charges were that he had not performed basic
job responsibilities and did not remediate the deficiencies after
instructed to do so. The third PNDA dated November 26, 2014,
stated that
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[i]t was discovered on October 9, 2013, after
you transferred to another Bureau, that you
had neglected your duties: leaving a
significant amount of incomplete work that you
did not bring to the attention of your
supervisor. You not only neglected your
duties by leaving incomplete work, but you
were insubordinate when you failed to provide
ethics training to new hires, and failed to
complete the processing of Employee's
Certification of Outside Employment or
Activities (PR-102) forms received prior to
your transfer. Either act alone demonstrates
insubordination.
In May 2014, DOT provided Handelman with the documents it
would rely on at the departmental hearing and a list of its
potential witnesses. The materials included a factual summary by
Inspector General Jones that included a description of the 1267
"Undisclosed & Incomplete Work Items" and the names of the
employees who submitted the forms.1 Handelman asked for "specific
document discovery," which included a copy of each of the 1267
incomplete forms, but by that time, DOT had completed the work and
filed the forms in the employees' personnel files. DOT advised
Handelman that personnel records were confidential and their
review and redaction "is burdensome." DOT offered Handelman copies
of completed forms in a "sampling of [five] employees, of your
1
The forms included 425 Outside Activity Questionnaires (PR-102)
forms; 7 Requests for Attendance at Events (AD-270) forms; 88
Supervisory Conflicts of Interest (PR-99) forms; 502 Ethics
Plain Language/Ethics Code forms; and 245 Pre-Hire Ethics
Questionnaires, for a total of 1267.
4 A-1708-16T2
choosing, if that is of assistance to you." Handelman declined,
advising it is "pointless for my defense at a hearing."
A departmental hearing was conducted on December 17, 2014.
Handelman blamed the Human Resources section for not notifying him
about the new hires. He told the Hearing Officer that he had
lost his administrative assistant in May 2013, and "[t]he increased
workload was difficult to manage." The Hearing officer related
that Handelman,
stated he was one person with no staff.
Inspector General Jones had removed all
administrative help from him and he was
overwhelmed with work. As a result[,] he did
not notice that there was a lengthy period of
time building up where new employees had not
been trained. Appellant stated that once he
found out about the untrained employees[,] he
acted quickly to identify and remedy the
situation.
Management told the Hearing Officer that Handelman never sought
out extra resources or indicated he was overwhelmed with work.
The Hearing Officer's findings were summarized in his
"Departmental Disciplinary Decision" issued January 31, 2015. He
rejected DOT's charge of insubordination because DOT had not proven
Handelman had been given any specific orders to complete the ethics
forms. The Hearing Officer found "credible evidence of neglect
of duty in both the new employees not receiving ethics training
and the failure to fully process the required forms." The Hearing
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Officer had "sympathy" for Handelman's argument that he was not
aware a training gap was developing, but as the gap grew greater,
the ELO was responsible to "recognize that a critical need was
not being met" especially once the OIG, where Handelman worked,
received five new employees. The Hearing Officer found the ELO
had to be "proactive to ensure compliance" because ethics training
was "critical."
The Hearing Officer found Jones's testimony to be credible
about work that was not completed. He found there were a
substantial number of form requests that Handelman had not
completed. The Hearing Officer recommended a five-day suspension
"[g]iven the importance of the role of the ELO."
Handelman appealed the suspension to the Commission. It
affirmed on June 23, 2015, finding there was no evidence the
Hearing Officer's credibility judgments were motivated by
"invidious discrimination" or were in violation of the Civil
Service Rules, and that the record supported a lack of abuse of
discretion by the appointing authority.
Handelman asked for reconsideration on August 1, 2015, which
was denied by the Commission in its Final Administrative Action
dated November 30, 2016. It found "not one scintilla of evidence"
that the departmental hearing was motivated by invidious
discrimination or conflicted with the Civil Service Rules.
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On appeal, Handelman contends that he was denied a fair
hearing in two ways. He argues DOT violated its own policies that
mandated a timely investigation and the right to receive notice
of the allegations being investigated prior to discipline. He
argues the hearing was not fair because DOT denied discovery of
the 1267 ethics forms it claimed he did not complete. Handelman
further contends his suspension should be reversed because it was
based on a claim that was raised for the first time at the hearing.
We reject these arguments as lacking merit.
II
We will not interfere with an agency's final decision unless
it is "arbitrary, capricious or unreasonable or it is not supported
by substantial credible evidence in the record as a whole." Henry
v. Rahway State Prison, 81 N.J. 571, 580 (1980). See Russo v. Bd.
of Trs., 206 N.J. 14, 27 (2011). Substantial evidence means "such
evidence as a reasonable mind might accept as adequate to support
a conclusion." In re Public Serv. Elec. & Gas Co., 35 N.J. 358,
376 (1961) (quoting In re Application of Hackensack Water Co., 41
N.J. Super. 408, 419 (App. Div. 1956)). We are not, however,
bound by the "agency's interpretation of a statute or its
determination of a strictly legal issue." Lourdes Med. Ctr. of
Burlington Cty. v. Bd. of Review, 197 N.J. 339, 361 (2009).
7 A-1708-16T2
Here, Handelman appeals from the Commission's final decision
that denied his request for reconsideration. There was nothing
arbitrary, capricious or unreasonable about the Commission's
decision to deny reconsideration or to affirm the five-day
suspension for neglect of duty. See N.J.A.C. 4A:2-1.6(b) ("A
petition for reconsideration . . . must show . . . [t]he new
evidence or additional information not presented at the original
proceeding, which would change the outcome and the reasons that
such evidence was not presented at the original proceeding; or
[t]hat a clear material error has occurred").
Handelman not only failed to present any new information to
the Commission, but there was sufficient evidence to support the
Commission's decision through the testimony of Inspector General
Jones that Handelman did not complete work submitted to him as ELO
before his transfer. The Hearing Officer found Jones's testimony
to be credible. "We . . . give due regard to the agency's
credibility finding." Ardan v. Board of Review, 444 N.J. Super.
576, 584 (App. Div. 2016), aff'd in part, rev'd in part, 231 N.J.
589 (2018). Handelman never rebutted Jones's testimony with other
evidence or testimony; his testimony to the Hearing Officer was
that he was overwhelmed with work once he lost his assistant.
Handelman contends the hearing was unfair because he was not
permitted discovery of the unfinished ethics forms. The forms
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were completed by DOT by the time the PNDA was issued and Handelman
requested discovery. In May 2014, DOT gave Handelman all the
material that it intended to rely on at the hearing. This included
Jones's detailed factual summary and the names of the employees
whose forms Handelman had not completed. He was offered a sample
of the completed forms, but declined them. We discern no violation
of due process by this discovery process.
This case is not like High Horizons Dev. Co. v. State, 120
N.J. 40, 53 (1990), cited by Handelman. There, the agency listed
in its Statement of Items Comprising the record, documents that
had not been disclosed to High Horizons. The Court held that "an
agency is never free to act on undisclosed evidence that parties
have had no opportunity to rebut." High Horizons, 120 N.J. at 53
(citing Brotherhood of R.R. Trainmen v. Palmer, 47 N.J. 482, 487
(1966)). Here, the incomplete forms no longer existed.
There also was sufficient evidence to support the finding
that Handelman neglected his duty by not providing ethics training
for the new employees. According to the factual summary of the
Inspector General's report against Handelman, the OIG was
responsible to "achieve and maintain Department-wide compliance
with all applicable ethics laws and policies." The ELO was the
"primary ethics analyst for [DOT] with program responsibility for
the Ethics Unit." One of his job responsibilities according to
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his Performance Assessment Review (PAR) was to "[a]chieve 100%
Departmental compliance with ethics requirements." Therefore, it
was not arbitrary, capricious or unreasonable for the Commission
to accept the Hearing Officer's finding that Handelman should have
found out about the need to train new hires either through his
superior or through Human Resources.
Handelman argues that the Commission did not apply the law
properly because DOT violated its procedures requiring a timely
investigation before taking disciplinary action. He relies on a
passage from DOT's Policy No. 532 from 2008 that says "[e]very
alleged breach of discipline shall be investigated, including an
opportunity for the accused to explain his/her actions."
We defer to the agency's interpretation of its policy. See
Ciesla v. N.J. Dep't of Health & Sr. Servs., 429 N.J. Super. 127,
148 (App. Div. 2012) ("It is settled that [a]n administrative
agency's interpretation of statutes and regulations within its
implementing and enforcing responsibility is ordinarily entitled
to our deference"). Handelman had notice and an opportunity for
a hearing. DOT conducted a timely investigation and Handelman had
a full opportunity to explain his actions at the departmental
hearing.
Handelman argues that his suspension was based on a new charge
raised at the hearing that he neglected his duty by not providing
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ethics training for new hires between October 2012 and July 2013.
The evidence was that new hires during this period did not receive
this training, and once the Hearing Officer determined the ELO was
responsible, the lack of training was just other work that was
incomplete. He was well aware he was charged with neglect of
duty.
Affirmed.
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