Alex Navas, CSC Docket No. 2018-1279

BackgroundThe appeal of Alex Navas, a Laborer 1 with the Department of Public Safety, Town of West New York, of his 30 working day suspension, on charges, was heard by Administrative Law Judge Susana E. Guerrero (ALJ), who rendered her initial decision on April 25, 2019. Exceptions were filed on behalf of the appellant and a reply to exceptions was filed on behalf of the appointing authority.

AnalysisHaving considered the record and the attached ALJ’s initial decision, and having made an independent evaluation of the record, the Civil Service Commission (Commission), at its meeting on June 12, 2019, did not adopt the ALJ’s recommendation to modify the 30 working day suspension to a 20 working day suspension. Rather, the Commission reversed the 30 working day suspension.

DISCUSSION

The appellant was charged with incompetency, inefficiency or failure to perform duties, insubordination, conduct unbecoming a public employee, neglect of duty, misuse of public property and other sufficient cause. Specifically, the appointing authority asserted that the appellant did not follow proper procedure for removing debris from a construction site and did not inform the resident it was their responsibility to remove the debris. Additionally, on two separate occasions, the appellant failed to follow the orders of supervisors. Upon the appellant’s appeal, the matter was transmitted to the Office of Administrative Law (OAL) for a hearing as a contested case.

Administrative Law JudgeThe ALJ set forth in her initial decision that the specifications of the charges sustained in the Final Notice of Disciplinary Action (FNDA) filed against the appellant concerned three separate incidents. The first allegation was that on May 1, 2017, the appellant did not follow proper protocol with respect to construction debris that he removed from a side walk without notifying the resident that he had two hours to remove the debris or make arrangements for the debris to be removed. When the appellant returned to the Department of Public Works’ (DPW) garage with the debris in his truck, he was advised of the proper protocol for handling construction debris by Marileidys Baldeo, Secretary, and that per the directive from Silvio Acosta, Director, DPW, he was to return the debris. He was also told to notify the resident of his responsibility to remove the debris from the sidewalk. The FNDA alleged that the appellant failed to return all the debris in direct violation of DPW protocol.

AnalysisThe second incident listed on the FNDA occurred on May 15, 2017. In that matter, the appointing authority alleged that Acosta assigned the appellant to investigate a list of violations at various properties and the appellant refused the directive. The third incident occurred on May 19, 2017. Specifically, the appointing authority alleged that the appellant was ordered by supervisor Ramon Lago to take action regarding pallets being left on the street for more than 10 days. Although the appellant was directed to investigate for a possible violation, the appointing authority claimed that he did not take any action.

Administrative Law JudgeThe ALJ found that Baldeo had received a complaint from resident that a number of bags containing construction material were left outside near his home. The appellant was directed by Baldeo to conduct an inspection, speak with the homeowner, and if necessary ask that the bags be removed. After speaking with the resident, the appellant removed the bags of construction debris and placed them in his truck. The ALJ found Baldeo testified credibly regarding advising the appellant that he was not permitted to pick up construction material and that per Acosta’s directive he should return the bags back where he found them. Baldeo testified that she had reviewed surveillance video showing the appellant placing several garbage bags in the DPW’s garage container after he had been directed to return the bags. Baldeo also testified that she examined the contents of the bags left in the DPW container and confirmed that they contained construction debris. Although the appellant testified that he complied with Baldeo’s directive and returned all of the bags, the ALJ found Baldeo’s testimony was more credible regarding the handling of the bags. The ALJ found that at least some of the bags collected by the appellant were not returned but were placed in the DPW container, contrary to Acosta’s direction and department protocol concerning the handling of construction debris.

With regard to the May 15, 2017, incident, the ALJ found no evidence that the appellant was ever given a list of violations of various properties to investigate, as indicated in the FNDA. However, the ALJ indicates that the appellant conceded that he did not issue a summons despite being directed to do to do so. In this regard, Acosta testified that he asked the appellant to issue the summonses after a supervisor had already investigated the property and found there to be a violation.

Further, the ALJ found that on May 19, 2017, the appellant was ordered by supervisor Lago to investigate a particular address where pallets were left outside the building. The ALJ determined that the appellant testified credibly that he presented to that building, spoke with the store owner concerning the pallets found on the sidewalk, and that the pallets were removed by the owner shortly thereafter. Thus, the ALJ found that the appellant did take action in response to Lago’s direction by investigating the matter and directing the store owner to remove the pallets.

AnalysisBased on the foregoing, the ALJ found that the appointing authority had proven by a preponderance of the credible evidence the charges of insubordination, neglect of duty, and conduct unbecoming a public employee, with regard to the appellant’s conduct on May 1, 2017. Additionally, the ALJ concluded that the appointing authority had proven, by a preponderance of credible evidence, that appellant’s conduct on May 15, 2017 was sufficient to sustain the charges. With regard to the alleged incident of May 19, 2017, the ALJ found that the appointing authority did not establish by a preponderance of the evidence that the appellant refused a supervisor’s order to investigate for a possible violation or to “take any action” regarding pallets left outside a particular address. With respect to the penalty, the ALJ determined that given the charges that were sustained and dismissed, that a 20 day suspension was more appropriate and proportionate to the offenses.

In his exceptions, the appellant contends that Baldeo had no personal knowledge of the individual who called to complain about the construction debris on the sidewalk nor any knowledge of who took the video she relied upon to allege he had dumped construction garbage in a container in the DPW garage. Additionally, the appellant argues that this alleged video was not presented at the OAL hearing. Further, the appellant contends that Acosta attested to a rule regarding the removal of construction debris, but subsequently admitted that he never provided this supposed rule in writing to the appellant. Moreover, the appellant asserts that Acosta testified that he did not know and did not remember how many properties he requested that the appellant issue summonses to. Furthermore, the appellant argues that the specifications in the FNDA were devoid of the allegation that he never issued summons as directed by Acosta. The appellant also states that he removed the construction debris under his authority as a sanitation inspector and that he did so as a courtesy to a resident due to the resident’s age, his broken ankle, and the size and number of bags of debris. Regardless, the appellant maintains that he returned the bags as instructed.

In its reply to the exceptions, the appointing authority argues that the ALJ reasonably found its witnesses more credible than the appellant. Further, it contends that the ALJ’s findings and determination of the charges were proper and that a 20 working day suspension was fair under the totality of the circumstances.

Upon its de novo review of the record, the Commission does not agree with the ALJ’s determination regarding the charges and with the ALJ’s recommendation to modify the 30 working day suspension to a 20 working day suspension. Rather, the Commission reverses the 30 working day suspension. In his exceptions, the appellant argues that the testimony of Baldeo and Acosta were largely inconsistent and incredulous and should not be relied upon. The Commission acknowledges that the ALJ, who has the benefit of hearing and seeing the witnesses, is generally in a better position to determine the credibility and veracity of the witnesses. See Matter of J.W.D., 149 N.J. 108 (1997). “[T]rial courts’ credibility findings . . . are often influenced by matters such as observations of the character and demeanor of the witnesses and common human experience that are not transmitted by the record.” See In re Taylor, 158 N.J. 644 (1999) (quoting State v. Locurto, 157 N.J. 463, 474 (1999) ). Additionally, such credibility findings need not be explicitly enunciated if the record as a whole makes the findings clear. Id. at 659 (citing Locurto, supra). The Commission appropriately gives due deference to such determinations. However, in its de novo review of the record, the Commission has the authority to reverse or modify an ALJ’s decision if it is not supported by the credible evidence or was otherwise arbitrary. See N.J.S.A. 52:14B-10(c); Cavalieri v. Public Employees Retirement System, 368 N.J. Super. 527 (App. Div. 2004). Nevertheless, upon its review of the entire record, the Commission finds that there is sufficient evidence in the record to support the ALJ’s credibility determinations. The ALJ explicitly indicated that she found Baldeo and Acosta’s testimony more credible than that of the appellant. Therefore, appellant’s claim that the ALJ should not have relied on the testimony from Baldeo and Acosta is unpersuasive.

In reviewing the charges, the Commission agrees with the ALJ’s determination regarding the May 19, 2017 incident, that the appointing authority did not establish by a preponderance of the evidence that the appellant refused a supervisor’s order to investigate for a possible violation or to “take any action” regarding pallets left outside a particular address. However, the Commission does not agree with the ALJ’s determination regarding the May 15, 2017 incident. While the ALJ found no evidence that the appellant was ever given a list of violations of various properties to investigate, as indicated in the FNDA, she concluded that the appellant had conceded that he did not issue summonses despite Acosta directing him to do so. However, the appellant was never charged with not issuing summonses. The Commission notes that it is well established that the ALJ and the Commission only have jurisdiction to adjudicate disciplinary charges and specifications which were sustained at the departmental level hearing. See Hammond v. Monmouth County Sheriff’s Department, 317 N.J. Super. 199 (App.

Div. 1999); Lamont Walker v. Burlington County, Docket No. A-3485-00T3 (App. Div. October 9, 2002); and In the Matter of Charles Motley (MSB, decided February 25, 2004). A review of the FNDA in this matter reveals that the specification for the May 15, 2017 incident only indicated that the appellant had failed to investigate a list of properties as directed by Acosta. There is no mention of the appellant failing to issue summonses. Therefore, the charges for this incident cannot be upheld because the appellant had conceded that he did not issue summonses, despite Acosta directing him to do so. Accordingly, as the specifications listed in the FNDA made no mention of the appellant’s failure to issues summonses, and that the ALJ found no evidence that the appellant was ever given a list of violations of various properties to investigate, this charge cannot be sustained.

With regard to the incident regarding the bags of construction debris, the Commission does not agree with the ALJ’s determination that the appellant’s failure to follow a directive was worthy of a disciplinary action. In this regard, the Commission is troubled by the fact that the appointing authority ordered an employee to return construction debris to the sidewalk outside a resident’s home. Once the appellant had removed the construction debris, ordering him to return the bags of debris is unfathomable. Such an act was in no way in the best interest of the public. Further, the witness testimony at OAL revealed no evidence that the appellant had been informed that he should not pick-up construction materials before his actions on May 1, 2017, nor was there any evidence that such a rule had been memorialized. In this regard, the Commission notes that no regulation, policy or rule concerning the proper handling of construction debris was presented at OAL or entered into the record as evidence. Accordingly, based on the foregoing, the Commission cannot sustain the charges regarding the May 1, 2017 incident.

Since the appointing authority has not met its burden of proof regarding the charges against the appellant, his 30 working day suspension must be reversed. Therefore, he is entitled to back pay, benefits, and seniority and reasonable counsel fees pursuant to N.J.A.C. 4A:2-2.10 and N.J.A.C. 4A:2-2.12.

ORDER

The Civil Service Commission finds that the appointing authority’s actions in imposing a 30 working day suspension was not justified. Therefore, the Commission reverses the 30 working day suspension. The Commission further orders that Alex Navas be granted back pay, benefits and seniority. The amount of back pay awarded is to be reduced as provided for in N.J.A.C. 4A:2-2.10. Reasonable counsel fees are granted pursuant to N.J.A.C. 4A:2-2.12. Proof of income that was actually earned during the period of separation, including any unemployment insurance benefits received and an affidavit of services in support of reasonable counsel fees shall be submitted by or on behalf of the appellant to the appointing authority within 30 days of issuance of this decision. Pursuant to

N.J.A.C. 4A:2-2.10 and N.J.A.C. 4A:2-2.12, the parties shall make a good faith effort to resolve any dispute as to the amount of back pay and/or counsel fees.

The parties must inform the Commission, in writing, if there is any dispute as to back pay and/or counsel fees within 60 days of issuance of this decision. In the absence of such notice, the Commission will assume that all outstanding issues have been amicably resolved by the parties and this decision shall become a final administrative determination pursuant to R. 2:2-3(a)(2). After such time, any further review of this matter should be pursued in the Superior Court of New Jersey, Appellate Division.