Michelle Sampson, CSC Docket No. 2023-281

BackgroundThe appeal of Michelle Sampson, Senior Emergency Medical Technician, Upper Township, Department of Recreation and Public Health, removal, effective July 29, 2022, on charges, was heard by Administrative Law Judge Carl V. Buck, III (ALJ), who rendered his initial decision on November 13, 2023. Exceptions were filed on behalf of the appellant and a reply was filed on behalf of the appointing authority.

AnalysisHaving considered the record and the ALu’s initial decision, and having made an independent evaluation of the record, including a thorough review of the exceptions and reply, the Civil Service Commission (Commission), at its meeting on December 20, 2023, aside from as noted below, adopted the Findings of Fact and Conclusion as found in the initial decision and the recommendation to uphold the removal.

Initially, the Commission notes that the ALJ made incorrect references regarding charges not part of the current matter, which appears to be a transpositional error, or what is commonly known as a “copy and paste” type error. However, it is clear this error did not detract in any way from the ALJ’s findings regarding the actual charges levied in this matter, or on his conclusions made therefrom. As such, the Commission, in its de novo review, does not adopt any of the erroneous references, but nonetheless finds such error does not otherwise affect its affirmance of the remainder of the ALd’s decision.

Otherwise, the Commission finds the ALJ’s decision thorough and comprehensive. In this regard, it rejects the appellant’s exceptions as unpersuasive with most not requiring discussion. However, the Commission makes the following comments. The appellant argues that the ALJ improperly relied on hearsay unsupported by a residuum of competent evidence. Hearsay evidence is admissible before the Office of Administrative Law as long as some legally competent evidence exists to support each ultimate finding of fact to an extent sufficient to provide assurances of reliability and to avoid the fact or appearance of arbitrariness. See N.J.A.C. 1:1-15.5(b) (also known as the Residuum Rule). See also, e.g., Matter of Tenure Hearing of Cowan, 224 N.J, Super. 737 (App. Div. 1988). In this matter, the Commission finds that the portions of the testimony of the appointing authority’s witness, which provided details from documents authored by and interviews of the individual who made the allegations against the appellant regarding the nature and extent of the affair, was admissible. Initially, as this evidence clearly constituted admissions against interest by the individual who made the allegations, that evidence could be admitted directly, even absent a residuum, pursuant to N.J.R.E. 803(c). Moreover, even if not considered admissible under N./J.R.E. 803, that evidence was supported by a residuum of competent evidence. Specifically, the appellant herself admitted to, albeit to a lesser degree, much of the conduct alleged by the individual, which provides the residuum. While she disputes the continuation of the affair past a certain date, as well as some of the alleged conduct, the ALJ found that the preponderance of the credible evidence did not support her contentions. Upon its de novo review, the Commission finds no reason to question the ALJ’s determinations in this regard, or his findings and conclusions made therefrom.

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.dJ. 108 (1997). “fT]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.dJ. 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 ALd’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 appointing authority 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.

Similar to its assessment of the 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.J. 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.J. 474 (2007).

In her exceptions, the appellant argues that the removal should be modified. In essence, the appellant attempts to minimize the nature of her misconduct and argues she engaged in minor “technical” violations of the appointing authority’s policy. The Commission disagrees. In this regard, the ALJ found:

Under a progressive discipline analysis, Sampson’s prior disciplinary history must be considered, and she has no prior disciplinary history, which is a substantial mitigating factor to consider for progressive discipline.

However, appellants willful disregard of Township policies, and the negative effects deriving therefrom and the cascading effect of appellants action (or lack of action in disregard of the dictates of the dating policy) support the imposition termination. The concept of progressive discipline may be disregarded in certain circumstances.

This is one of those circumstances. After having considered all of the proofs offered in this matter and the impact upon Upper Township in consequence of the appellant herein, and after having given due deference to the impact of and the role to be considered by and relative to progressive discipline, 1 CONCLUDE that appellant’s violations are significant to warrant a penalty of removal. Therefore, 1 CONCLUDE that the imposition of removal is an appropriate penalty for these violations.

The Commission agrees with the ALJ that the appellant’s misconduct is egregious and supports the penalty of removal. While the Commission acknowledges the appellant’s prior lack of a major disciplinary record, the appellant's egregious actions in this matter fall well short of what is expected of a public employee, especially one who served in a supervisory capacity and whose duties dealt with the health and welfare of the public. Notwithstanding the appellant's attempts to justify, rationalize or minimize the serious nature of her misconduct, the Commission finds that her actions were egregious and wholly inappropriate. The appellant’s actions would clearly tend to undermine the public trust and as such, the Commission finds the penalty of removal neither disproportionate to the offense 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 appeals of Michelle Sampson.

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