NOT FOR PUBLICATION WITHOUT THE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-0329-15T4
IN THE MATTER OF N.L.1,
Respondent,
v.
OCEAN COUNTY BOARD OF SOCIAL
SERVICES,
Appellant.
_____________________________________________________
Submitted May 16, 2017 – Decided June 23, 2017
Before Judges Vernoia and Moynihan.
On appeal from the Civil Service Commission,
Agency No. 2014-0901.
Sweeney & Sheehan, P.C., attorneys for
appellant (Barbara A. O'Connell, on the
briefs).
Secare & Hensel, attorneys for respondent
(Steven Secare, on the brief).
Christopher S. Porrino, Attorney General,
attorney for respondent The New Jersey Civil
Service Commission (Valentina M. DiPippo,
Deputy Attorney General, on the statement in
lieu of brief).
1
We use initials to protect respondent's privacy.
PER CURIAM
The Ocean County Board of Social Services (Board) appeals the
determination of the Civil Service Commission (Commission)
reducing the suspension of the Board's employee, N.L., from sixty
days to thirty days. The Board contends that the reduction of the
sanction was "arbitrary, capricious, unreasonable, and unsupported
by substantial credible evidence . . . because the [original]
suspension was not so disproportionate to the offense to be
shocking to one's sense of fairness." We disagree and affirm.
The Board concedes that the facts found by the administrative
law judge (ALJ), and outlined in the Commission's decision, "are
not in dispute and have not been appealed." As a Human Services
Specialist 2 employed by the Board, N.L. interacted with and
processed applications submitted by people seeking program
benefits. On August 30, 2014, individuals in the Board's waiting
room ridiculed another client, seen by N.L. that day, because the
client is transgender. N.L. found the ridicule directed at the
client abhorrent, and posted messages in support of the client on
Facebook that evening. The postings revealed the ridiculed
client's nickname, and that N.L. worked for the Board. N.L. also
made derogatory comments about the individuals in the waiting
room. The postings were seen by N.L.'s Facebook "friends" and by
2 A-0329-15T4
others, including an assistant administrator of social work
employed by the Board, who was not N.L.'s Facebook "friend."
The Board suspended N.L. for sixty days for breaching client
confidentiality by revealing the client's nickname, and for
conduct unbecoming an employee based on her derogatory postings
about the clients in the waiting room. N.L. filed an appeal.
The ALJ concluded the Board proved N.L. breached the Board's
confidentiality policy because she revealed the client's nickname,
which "could indirectly [have led] to the identification of the
client." The ALJ also ruled that the Board did not establish that
N.L. violated any other policy, including that pertaining to
conduct unbecoming an employee. Applying the concept of
progressive discipline, the ALJ found numerous mitigating factors,
including:
the fact that the rules are not very clear
regarding confidentiality and disclosure and
there is very little training in this regard.
Furthermore, the implications of social media
are novel to everyone. In further mitigation
is the fact that there was absolutely no
intention on [N.L.'s] part to violate the
privacy rights of the client. On the
contrary, [N.L.] was speaking in defense of
the client.
The ALJ considered that N.L. did not have any other disciplinary
infractions over the course of her five-year employment with the
Board. Noting that breaches of confidentiality could not be taken
3 A-0329-15T4
lightly, the ALJ found the balance of aggravating and mitigating
factors warranted reducing the suspension to ten days.
The Board filed exceptions with the Commission, which, after
a de novo review, found N.L. breached client confidentiality, and
that her "vulgar comments" on Facebook constituted conduct
unbecoming an employee. The Commission also conducted a de novo
review of the sanction and imposed a thirty-day suspension, from
which the Board appeals.
Our review is limited. Only if we find the Commission's
decision arbitrary, unreasonable or capricious, or unsupported by
substantial, credible evidence in the record, can we reverse it.
In re Stallworth, 208 N.J. 182, 194 (2011). Although we may have
reached a different decision, we may not impose our views on the
Commission. Ibid. Our deference extends to sanctions imposed by
the Commission. Id. at 195. Our consideration is limited to
"whether the 'punishment is so disproportionate to the offense,
in light of all of the circumstances, as to be shocking to one's
sense of fairness.'" Id. (quoting In re Carter, 191 N.J. 474, 484
(2007)).
The reasons cited by the Commission for increasing the
suspension imposed by the ALJ, and increasing that meted out by
the Board, are sound; the reasons are supported by the undisputed
4 A-0329-15T4
record and the reduction of the sixty-day suspension to thirty
days is not arbitrary, capricious or unreasonable.
The Board cannot reasonably contend that progressive
discipline is inappropriate in this case when the sixty-day
suspension the Board originally imposed, and now seeks
reinstatement of, followed the concept. This is not a case where
the Board sought permanent dismissal of N.L., and that penalty was
reduced. See Carter, supra, 191 N.J. 474 (2007) (upholding
termination, instead of progressive discipline, of police officer
found asleep on duty on three consecutive dates; dismissal was
warranted in light of public safety concerns). Obviously, the
Board did not consider N.L.'s infraction to be so serious that
progressive discipline be set aside, and she be terminated. Nor
is this a case involving an employee's lack of competence or
fitness to perform job duties. See Klusaritz v. Cape May County,
387 N.J. Super. 305, 316 (App. Div. 2006) (finding termination was
warranted when employee could not perform accounting duties),
certif. denied, 191 N.J. 318 (2007).
The Commission considered the nature of the charge, the
concept of progressive discipline and the employee's prior record.
It found the Board's penalty too harsh in light of N.L.'s previous
unblemished disciplinary record, and the ALJ's sanction too
lenient because the judge minimized the breach of confidentiality
5 A-0329-15T4
by accepting N.L.'s explanation that she thought she was sharing
her comment only with friends, a reason belied by the access to
the comments gained by those who were not "friends." The
Commission's decision properly balanced the relevant factors and
the reduction of the sanction will not be disturbed.
Affirmed.
6 A-0329-15T4