Marybeth Harrell, CSC Docket No. 2022-235

BackgroundThe appeal of Marybeth Harrell, Clerk 2, Camden County Board of Social Services, of her removal, effective July 22, 2021, on charges, was heard by Administrative Law Judge Jeffrey N. Rabin (ALJ), who rendered his initial decision on February 13, 2023. Exceptions were filed by the appellant.

AnalysisHaving considered the record and the ALJ’s initial decision, and having made an independent evaluation of the record, including a thorough review of the exceptions, the Civil Service Commission (Commission), at its meeting on March 15, 2023, adopted the ALJ’s Findings of Facts and Conclusion and his recommendation to uphold the removal.

Upon its de novo review of the ALJ’s thorough and well-reasoned initial decision as well as the entire record, including the exceptions filed by the appellant, the Commission agrees with the ALJ’s determinations regarding the charges, which were substantially based on his assessment of the credibility of the witnesses. In this regard, 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.eJ. 644 (1999) (quoting State v. Locurto, 157 N.eJ. 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 sufficient credible evidence or was otherwise arbitrary. See N.J.S.A. 52:14B-10(c); Cavalieri u. Public Employees Retirement System, 368 N.J. Super. 527 (App. Div. 2004). In this matter, the exceptions filed by the appellant are not persuasive in demonstrating that the ALJ's credibility determinations, or his findings and conclusions based on those determinations, were arbitrary, capricious or unreasonable. Specifically, the ALJ found the appellant “offered inaccurate, self- serving testimony. She contradicted herself throughout her testimony.” Ultimately, the ALJ “found that appellant’s testimony completely lacked credibility.” The Commission finds nothing in the record to question this determination or the findings and conclusions made therefrom.

Similar to its review of the underlying charges, the Commission’s review of the penalty is de novo. In addition to its consideration of the seriousness of the underlying incident in determining the proper penalty, the Commission also utilizes, when appropriate, the concept of progressive discipline. West New York v. Bock, 38 N.eJ. 500 (1962). In determining the propriety of the penalty, several factors must be considered, including the nature of the appellant’s offense, the concept of progressive discipline, and the employee’s prior record. George v. North Princeton Developmental Center, 96 N.J.A.R. 2d (CSV) 463. However, it is well established that where the underlying conduct is of an egregious nature, the imposition of a penalty up to and including removal is appropriate, regardless of an individual's disciplinary history. See Henry v. Rahway State Prison, 81 N.J. 571 (1980). It is settled that the theory of progressive discipline is not a “fixed and immutable rule to be followed without question.” Rather, it is recognized that some disciplinary infractions are so serious that removal is appropriate notwithstanding a largely unblemished prior record. See Carter v. Bordentown, 191 N.-/. 474 (2007).

In this matter, the Commission agrees with the ALJ’s recommendation to uphold the removal. The record indicates the appellant had three prior minor disciplines since 2014, and a major discipline, a six working day suspension, in 2019, all for attendance-related infractions. Given that some of the current infractions were also attendance-related, when coupled with the other serious infractions committed by the appellant in this matter, removal is warranted as it is neither disproportionate to the offenses committed nor shocking to the conscious.

ORDER

The Civil Service Commission finds that the action of the appointing authority in removing the appellant was justified. The Commission therefore upholds that action and dismisses the appeal of Marybeth Harrell.

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