Ramogi Goding, CSC Docket No. 2019-3622

BackgroundThe County of Hudson, represented by John J. Collins, Esq., requests reconsideration of the attached decision, In the Matter of Ramogi Goding, Hudson County, Department of Corrections (CSC, decided April 24, 2019), which reversed Goding’s removal from employment.

By way of background, Goding was served with a September 14, 2018 Preliminary Notice of Disciplinary Action, removing him on charges of conduct unbecoming a public employee, neglect of duty and other sufficient cause. Specifically, the appointing authority indicated that a random drug test conducted on August 16, 2018 confirmed that Goding allegedly tested positive for marijuana. A departmental hearing was held on October 12, 2018, and a Final Notice of Disciplinary Action sustaining the charges was issued on November 8, 2018. Goding appealed and requested a hearing, and the matter was transferred by this agency for a hearing at the Office of Administrative Law (OAL). The OAL hearing was conducted on March 5, 2019. Upon reviewing the evidence and credibility of the witnesses, the ALJ determined that there was no witness testimony from the New Jersey State Toxicology laboratory (State Lab) which analyzed Goding’s urine sample. The ALJ noted that Hudson County’s attorney stated that the State Lab would not provide a witness to testify. As such, the Administrative Law Judge (ALJ) concluded that since no witness testimony from the State Lab was available to discern the process used to analyze Goding’s sample, or to confirm that the sample tested positive for marijuana or any other drug, there was no admissible evidence indicating that Goding tested positive for marijuana or any other drug. Therefore, the ALJ concluded that the administrative charges were not sustained and, as such, recommended reversing the removal and reinstating Goding to his permanent position. Upon its de novo review, the Civil Service Commission (Commission) adopted the ALJ’s recommendations and found that Goding’s removal was not justified, and accordingly, reinstated him to his position with back pay, benefits and seniority from September 12, 2018 to the actual date of his reinstatement.!

Appellant's argumentIn its request for reconsideration, the appointing authority explains that, due to an administrative reorganization in late 2018 implemented by the Governor, various policies and procedures were enacted that prevented the appointing authority from obtaining pertinent information and evidence at the time of the March 5, 2019 hearing. In this regard, the appointing authority explains that such information that it wanted to obtain from the State Lab was protected by new confidentiality restrictions, and as such, the information was not immediately provided to the appointing authority. The appointing authority explains that it was unable to obtain such information at the time because it was required to request such information via a Discovery Confidentiality Order pursuant to new rules as noted above. However, as of the March 5, 2019 hearing, it was unaware of the new procedures.? The appointing authority adds that, as a result, it was unable to have any discussions with representatives from the Attorney General’s Office (OAG) with respect to the issue. The appointing authority now submits documents and a lab sample from the State Lab, arguing that such information constitutes new evidence that was not previously considered in the prior matter which will affect the outcome of the case. In support, the appointing authority provides certifications from Francis X. Baker, Deputy Attorney General, and from John J. Collins, Assistant County Counsel, Hudson County. Additionally, the appointing authority argues that this agency has previously granted reconsideration of prior matters when new evidence and additional information becomes readily available. See, eg., In the Matter of Steven Garzio (CSC, decided July 17, 2017) and In the Matter of Nancy Stein (CSC, decided April 16, 2015). Finally, it contends that pursuant to Jn the Matter of Corey Corbo, 238 N..J. 246 (2019), the New Jersey Supreme Court found that the preferred remedy to rectify procedural errors at the administrative level is a remand.

In response, Goding, represented by Frank C. Cioffi, Esq., maintains that the request for reconsideration in this matter should be denied. Goding asserts that, in its exceptions in the pricr matter, the appointing authority requested the Commission to remand the matter back to OAL so that additional testimony could be obtained. In support, it submitted correspondence to show that the State Lab was reluctant to cooperate at the time of the hearing. Goding explains that the appointing authority did not provide any further evidence to show that it attempted to contact the State Lab with respect to obtaining the information. Goding contends

Background1 Official personnel records do not indicate that Goding has been reinstated to his position at the time of the issuance of this decision.

* The appointing authority notes that it indicated to the ALJ on numerous occasions that it was unable to obtain witnesses to appear from the State Lab and obtain the additional information.

that the appointing authority was unprepared at the time of the OAL hearing and it did not request an extension of time to produce witnesses from the State Lab to testify regarding the authenticity of the lab specimen. As such, Goding maintains that the Commission should reject the appointing authority's request in this matter.

CONCLUSION

N.J.A.C, 44:2-1.6(b) sets forth the standards by which the Commission may reconsider a prior decision. 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.

In the present matter, the appointing authority has not met the standard for reconsideration. Upon a review of the appointing authority's submissions, it has neither shown that a material error has occurred nor has it provided any new information that would change the outcome of the case. In this matter, the appointing authority does not provide a viable explanation for its lack of obtaining witnesses and additional information. Although the appointing authority argues that it was unaware that it was required to obtain additional information and witnesses from the State Lab via a Discovery Confidentiality Order as new rules were promulgated, the appointing authority's admitted procedural errors at the time of the OAL hearing does not overcome the ALJ’s findings in the prior matter, nor does it warrant granting reconsideration in this matter. Moreover, the Commission is not persuaded by the appointing authority’s arguments that it was not abreast of the new rules due to the timeframe that the hearing occurred. It was the appointing authority's burden to provide witnesses at the time of the OAL hearing, and its failure to do so does not now warrant reconsideration of the prior matter. Moreover, the evidence submitted by the appointing authority in this matter does not constitute new evidence that would change the outcome of the case, but rather, it should have been properly submitted at the time of the OAL hearing for the ALJ’s consideration. Additionally, the Commission did not find persuasive the appointing authority’s exceptions in the prior matter requesting to remand the case to OAL to obtain additional evidence. As the ALJ clearly indicated, the appointing authority provided no witnesses at the time of the hearing, and as such, the Commission properly adopted the ALJ's findings.

With respect to the arguments pertaining to Garzio, supra, and Stein, supra, those matters are factually distinguishable from this matter. In Garzto, actual new evidence was presented upon reconsideration which established that he was permanent in the title of Police Officer at the time of his layoff. In Stein, actual new evidence was presented upon reconsideration to show that her personnel records were incorrect, and as a result, the Commission determined her qualified for a promotional examination. Neither of those matters dealt with procedural errors with respect to requesting witnesses at an OAL hearing. Moreover, the Commission finds that Corbo, supra, does not require that this matter be remanded. That matter is also factually distinguishable from the present matter. In Corbo, the issue was whether the ALJ properly allowed evidence to be entered into the record. The Court found that the employer in Corbo should have been given the opportunity to support hearsay testimony that the ALJ originally improperly admitted into evidence. Such is not the case in this matter. In this case, the crux of the matter is not procedural, but rather, whether the appointing authority originally made its case by presenting competent evidence. The ALJ in this case gave the appointing authority every opportunity to support its hearsay evidence. However, as it did not explore every possibility available to ensure that its hearsay evidence was corroborated by witness testimony, the Commission finds no reason in this case to give it a “second bite at the apple.” In this regard, the Commission is not preventing the appointing authority from making its case as was found in Corbo. Rather, the Commission finds that the appointing authority had ample opportunity in the original proceeding to present its case and failed to do so. Accordingly, the request for reconsideration is denied.

ORDER

Therefore, it is ordered that this request for reconsideration be denied. Further, if it has not already done so, the appointing authority is ordered to immediately reinstate Ramogi Goding and provide all the remedies as ordered in the Commission’s prior decision.

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