Marcella Friedman, CSC Docket No. 2018-3696

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BackgroundMarcella Friedman, a Communications Systems Technician 2, Department of Law and Public Safety, Division of State Police, represented by Arnold Shep Cohen, Esq., petitions the Civil Service Commission (Commission) for reconsideration of the attached initial decision of the Administrative Law Judge (ALJ), which was deemed adopted as a final decision on June 18, 2018, upholding her removal, effective February 17, 2017.

By way of background, on February 17, 2017 the appointing authority presented the petitioner with a Final Notice of Disciplinary Action (FNDA) which removed her from her position on charges of conduct unbecoming a public employee, misuse of public property and other sufficient cause. Specifically, the appointing authority asserted that the petitioner misused her position as an employce of the New Jersey State Police to obtain a free power generator for her personal use. Upon the petitioner’s appeal, the matter was transmitted to the Office of Administrative Law (OAL) for a hearing as a contested case.

After a hearing, the ALJ determined that the appointing authority had met its burden of proof with regard to all of the charges. In particular, the ALJ found that the petitioner's position was a civilian position and she had no duties on October 31, 2012 because she was on an extended medical leave and was receiving Worker's Compensation. Yet, on that date and while in the immediate aftermath of Superstorm Sandy, the petitioner wore a New Jersey State Police Office of Emergency Management (OEM) jacket and carried a State-issued radio. She told out-of-state vendors selling power generators in a restaurant parking lot that she had the authority to shut their sales down unless they gave her a free power generator. The ALJ also found that the petitioner was not credible based on her own and other witness’ testimony, and the exhibits in the record. As a result. the ALJ upheld the appellant's removal and the initial decision was the forwarded to the Commission for consideration.

However, the Commission did not have a quorum at the time of the ALJ's initial decision, and the appointing authority did not consent to an additional extension of time for the Commission to render its decision. As such, the Al's decision was deemed adopted as the final decision pursuant to N.J.S.A. 52:14B- 10(c). Accordingly, the parties were advised that the ALJ’s initial decision was deemed adopted, effective June 18, 2018.

Appellant's argumentIn her petition for reconsideration, the petitioner argues that her removal was inappropriate and should be reversed. In this regard, she submits her exceptions to the ALJ’s initial decision since the Commission was unahle to review them previously due to the lack of quorum. Initially, the petitioner argues that the ALJ unreasonably disqualified her testimony by applying an unreasonable level of scrutiny not applied to other witnesses. For example, the petitioner states that the ALJ rejected her testimony that she was wearing a fanny pack in the parking lot on October 31, 2012 because she failed to produce other evidence of her wearing the fanny pack, such as old photos. However, the petitioner complains that the ALJ did not scrutinize the testimony of two vendors who sold her the generator. In this regard, the petitioner states that the two vendors testified that they had permission from the police to sell generators in a parking lot and waive sales tax, despite lacking evidence to prove their claim and testimony from the local police chief that he did not give anyone such permission. The petitioner argues that the ALJ “clearly wanted to believe” the two vendors and “decidedly tipped the scales against” her.

Additionally, the petitioner asserts that the ALJ unreasonably found credible the testimony of the restaurant manager, even though he “personally benefited” from the vendors’ presence because they allowed him to use one of their generators in return for their use of the restaurant’s parking lot to sell gencrators. The petitioner further asserts that the ALJ “arbitrarily failed to take any significance in the State Police[s]” failure to either interview or present a third vendor who supervised generator sales at the restaurant parking lot as a witness. The petitioner complains that had the supervising vendor been interviewed or testified. it could have been determined whether he had agreed to sell a generator to her. The petitioner observes that the appointing authority “could not provide any direct evidence to contest [her] testimony of an agreed upon price with” the supervising vendor. The petitioner further argues that the ALJ unreasonably concluded that a State Trooper's testimony supported the appointing authority's charges against her. The petitioner observes that the State Trooper admitted to being in the same parking lot as petitioner to buy a power generator for himself while he was in uniform and presumably on duty. The petitioner complains that she was subject to discipline while the State Trooper was not. Moreover, the petitioner argues that the State Trooper did not personally hear her threaten to shut down the vendors if they did not give her a power generator; she argues that his testimony was based upon hearsay statements the two vendors made to him.

The petitioner states that the she had previously filed Equal Employment Opportunity complaints against individuals employed by the appointing authority and argues that the ALJ should have addressed whether her discipline was in retaliation for her “being a whistleblower.” The petitioner further asserts that the ALJ unfairly disciplined her for wearing her OEM jacket, despite the appointing authority’s failure to present evidence of a prohibition on wearing the jacket while off-duty. The petitioner also argues that the ALJ improperly relied on judicial notice. For example, she states that the ALJ erred in his explanation of ensh closings for real estate deals to dispute her testimony regarding how she paid for the generator in cash. She argues that the ALJ also erred by assuming without any basis that the weather on October 31, 2012 was “cool and wet autumnal weather” and required something heavier than her light OEM jacket. Finally, the petitioner argues that the ALJ improperly weighed law enforcement officers’ testimony due to their positions. She notes that “[e]very conflict in testimony between [her] and one of the officers automatically was held in favor of an officer.”

Appointing authority's argumentIn response, the appointing authority, represented by Andy Jong, Deputy Attorney General, initially argues that the petitioner's instant request for reconsideration on the basis that this matter was deemed adopted, does not meet the standard for reconsideration. The appointing authority asserts that the testimony of the State Trooper, vendors and restaurant manager were consistent with each other and contradicted the petitioner’s testimony. In this regard. all four testified they saw the petitioner in the parking lot wearing the OEM jacket and a radio. The appointing authority observes that the two vendors testified that the petitioner left the parking lot with the generator before completing an invoice for the generator and that the invoice only had the petitioner's name and the word “donate” on it. Moreover, the vendors testified that the petitioner’s invoice differed from those of paying customers and the State Trooper provided a copy of his completed invoice at the hearing. !

The appointing authority further asserts that whether the vendors were allowed to sell generators in the parking lot is immaterial in the instant matter, Similarly, the appointing authority argues that the restaurant manager's use of one of the vendors’ generators and the State Trooper’s buying a generator for personal use is also irrelevant. It states that the supervising vendor was not interviewed

'The ALJ found that a typical invoice would have had the purchaser's name. address. method of payment and the purchase amount. The supervising vendor had pre-signed a stack of blank invoices, including the petitioner's.

because he was not a witness to the petitioner's extortion.? It contends that the petitioner could have called him to testify.

The appointing authority asserts that the ALJ did not ignore petitioner's prior complaints against the appointing authority and contends that she failed to present any evidence of a conspiracy against her at the hearing. Finally, the appointing authority rejects the petitioner's assertion that the ALd improperly relied upon judicial notice. It argues that the ALJ’s decision was well-reasoned and supported by the evidence presented. For example, regarding the weather on the date at issue, it observes that the petitioner testified that she was cold and that “it was a nasty day.”

CONCLUSION

RuleN.J.A.C. 4A:2-1.6(b) sets forth the standards by which a prior decision may be reconsidered. This rule provides that a party must show that a clear material error has occurred or present new evidence or additional information not presented at the original proceeding which would change the outcome of the case and the reasons that such evidence was not presented at the original proceeding. The instant request for reconsideration is based on the assertion that the ALJ’s initial decision to uphold her removal] was in error, and that because of the lack of quorum and the initial decision being deemed adopted pursuant to N.J.S.A. 52:14B-10(c), the Commission was unable to review the matter. However, a review of the record in the instant matter reveals that reconsideration is not justified.

AnalysisInitially, the petitioner presents numerous challenges to the ALJ's initial decision which she asserts were clear material errors. With regard to petitioner's argument that the ALd’s credibility determinations were in error, 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 also, 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 duc deference to such determinations. In the instant matter, it is clear from the record as a whole that the ALJ found the appointing authority’s witnesses more credible than the petitioner. The petitioner has presented no evidence which establishes that the ALJ’s credibility findings were arbitrary, capricious, unreasonable or not based on the evidence in the record.

* The appointing authority notes that the other two vendors testified he was not present at the transaction because he felt ill.

Despite the petitioners numerous other objections to the ALdJ’s initial decision, there is strong evidence in the record to support the contention that the petitioner abused her position as an employee of the New Jersey State Police to obtain a free power generator. In this regard, the petitioner does not deny wearing the OEM jacket which identified herself as a member of the State Police in at least some capacity. Nor does she deny leaving the parking lot with a generator in her possession. The petitioner’s argument that she paid $500 for the generator is unconvincing in light of the vendors’ invoice bearing her name. the letters “donat[e],” and no reference to $500 the appellant alleged she paid in cash. The Commission observes that the contents of the invoice are consistent with the two vendors’ testimony. Thus, since there is more than enough evidence to support the ALd’s findings of fact, the Commission cannot say on the petitioner's remaining objections, eg. the ALJ improperly relied upon judicial notice and gave undue deference to the testimony of law enforcement officers, that the strict standard for reversing the ALJ’s findings has been met. Therefore, based on the foregoing, the petitioner has failed to establish that reconsideration is justified in this matter.

ORDER

Therefore, it is ordered that this petition be denied.

ClosingThis is the final administrative determination in this matter. Any further review should be pursued in a judicial forum.