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(NOTE: The status of this decision is Unpublished.) Original Wordprocessor Version (NOTE: The status of this decision is Published.)

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1518-08T1

IN THE MATTER OF STEVEN J. WINTERS, NORTH HUDSON REGIONAL FIRE AND RESCUE. ______________________________ September 28, 2010 Argued March 23, 2010 - Decided

Before Judges Skillman, Fuentes and Gilroy.

On appeal from a Final Administrative Decision of the New Jersey Civil Service Commission, No. 2007-2857.

Catherine M. Elston and Robert L. Herbst (Giskan Solotaroff Anderson & Stewart, LLP) of the New York bar, admitted pro hac vice, argued the cause for appellant Steven J. Winters (C. Elston & Associates, LLC, attorney; Ms. Elston, on the brief).

David F. Corrigan argued the cause for respondent North Hudson Regional Fire and Rescue (David F. Corrigan, LLC, attorneys; Mr. Corrigan, of counsel and on
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the brief; Bradley D. Tishman, on the brief).

Paula T. Dow, Attorney General, attorney for respondent Civil Service Commission (Andrea R. Grundfest, Deputy Attorney General, on the statement in lieu of brief).

PER CURIAM Appellant Steven Winters appeals from the October 10, 2008 final decision of the Civil Service Commission (Commission) upholding his removal from the North Hudson Regional Fire and Rescue (NHRFR). We affirm. On November 30, 2006, the NHRFR served appellant with a ten-count Preliminary Notice of Disciplinary Action (PNDA) seeking to remove him from employment. The PNDA charged appellant with having committed various acts of misconduct relating to the agency's sick leave policy. After appellant failed to appear for an administrative hearing on the charges, the NHRFR served appellant with a Final Notice of Disciplinary Action (FNDA), sustaining the charges and removing him from employment, effective November 30, 2006. On January 2, 2007, appellant appealed to the Merit System Board, Department of Personnel. The Board transferred the matter to the Office of Administrative Law (OAL) as a contested case. The OAL hearing commenced on September 26, 2007, and continued over seven intermittent days when, before appellant began to present his case, the NHRFR filed a motion for partial summary decision on count four that charged appellant with having engaged in outside employment while on sick leave. Appellant filed a crossmotion for partial summary decision on counts one and four. On February 5, 2008, the Administrative Law Judge (ALJ) issued his initial decision and order determining that the NHRFR had sustained the charge on count four. The ALJ also recommended appellant's removal from employment. On October 10, 2008, the Commission issued its final decision, adopting the ALJ's findings and conclusions, and upholding the sanction of removal. It is from this decision that appellant appeals.
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I. Appellant began his employment as a firefighter with Union City Fire Department in 1984. Following the creation of the NHRFR in 1999, appellant continued employment with the NHRFR rising to the rank of captain. In December 2005, as a result of disciplinary measures, appellant was suspended from employment for sixty days and demoted to the position of firefighter. In June 2006, appellant sought sick leave from his employment. In support of his application, appellant submitted a certification from a psychiatrist indicating that appellant suffers from a panic disorder and was not able to work in the fire department for the next three to six months. Appellant began sick leave on June 13, 2006. On June 12, 2006, appellant began work as a per diem electrical inspector/code enforcement officer for the Township of Old Bridge. Between June 12 and November 9, 2006, appellant worked 192.25 hours for the Township, earning $7,134.75. Appellant also worked for the City of Long Branch from September through November 24, 2006, as a construction official. During his employment with the City, appellant worked at least 140.5 hours, earning approximately $3,934. On October 12, 2006, appellant submitted to an examination by NHRFR's psychologist. The doctor issued a report the same day opining that appellant was psychologically capable of performing his usual work duties with the NHRFR without psychological restrictions. On October 24, 2006, contrary to appellant's psychiatrist's recommendation, the NHRFR ordered appellant to report for modified duty. Appellant failed to comply with the directive. On November 15, 2006, appellant failed to submit to a psychiatric evaluation scheduled by the NHRFR. On November 30, 2006, the NHRFR filed a ten-count PNDA against appellant, charging him with various acts of misconduct relating to abuse of the agency's sick leave policy. In count one, NHRFR charged appellant with violating its home confinement rule in General Order No. 01-003-01, Section 4.1(d), which required appellant to remain at home while on sick leave, by not staying home on October 4, October 20, November 6, and November 8, 2006. Count four charged appellant with having worked a second job while on sick leave. After appellant failed to appear at a December 20, 2006 disciplinary hearing, the NHRFR issued its FNDA sustaining all charges and terminating appellant from employment, effective November 30, 2006. On January 2, 2007, appellant appealed his removal to the Board; the Board transferred the matter to the OAL
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as a contested case. In October 2007, during the pendency of the disciplinary proceeding, the NHRFR filed a motion for partial summary decision as to count four that charged appellant with having "engaged in outside employment while on sick leave, contrary to a work rule in the collective bargaining agreement," alleging "that this conduct constituted incompetency, inefficiency or failure to perform duties, insubordination, conduct unbecoming a public employee, neglect of duty and other sufficient cause." Appellant filed a cross-motion for partial summary decision seeking dismissal of count four, contending that the charge could only be resolved through arbitration as part of the parties' collective bargaining agreement's (CBA) grievance procedure. Appellant also sought dismissal of count one charging him with having violated the agency's home confinement rule, contending that the rule was unconstitutional. Lastly, appellant sought dismissal of the charge contained in count one (d) that alleged he violated the home confinement rule on October 4, 2006, contending that the charge had been filed beyond the forty-five day limitation period contained in N.J.S.A. 40A:14-28.1. The ALJ resolved the jurisdictional issue over count four in favor of the NHRFR, determining that the CBA's grievance procedure does not provide the agency with a remedy to sanction appellant for working for third parties while on sick leave. Additionally, the ALJ noted that the CBA specified that major disciplinary actions were under the jurisdiction of the Department of Personnel. Accordingly, the ALJ concluded that the NHRFR properly exercised its prerogative under the civil service law in seeking appellant's removal from employment "for violation of a work rule whose purpose was to prevent malingering and misuse of sick time." In determining that the NHRFR had sustained the charge on count four and in upholding the agency's sanction of removal, the ALJ reasoned in pertinent part: It is undisputed that Winters was employed by Old Bridge and Long Branch while on sick leave with [the NHRFR]. [The NHRFR] moves for partial summary decision on this count finding such activity to be misconduct per se . . . .

....

Appellant argues that summary decision is premature because the tribunal has not yet received testimony from his treating psychiatrist who is expected to explain that his psychological "injuries" could be exacerbated by return to work at [the NHRFR], but that outside employment might facilitate his healing. Viewed

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in a light most favorable to appellant, this argument suggests that outside employment, contrary to a work rule, is defensible because of its potentially therapeutic value. Assuming arguendo that appellant has been suffering from a psychological disorder, suffice it to say that while the tribunal might be persuaded that an outside activity such as volunteer work for a philanthropic organization might be beneficial, it could not agree that illicit outside employment is the only or preferred therapy. Stated differently, appellant would have the tribunal hold that psychological problems, ostensibly brought on by discipline for prior misconduct, that is, conflicts in the work place, can only be remedied by the commission of yet more misconduct. Without putting too fine a point on it, the tribunal finds the argument unpersuasive.

....

Based on the foregoing findings of fact and legal authority, I CONCLUDE that appellant engaged in outside employment while on sick leave contrary to a work rule, and that such misconduct constituted insubordination, neglect of duty, conduct unbecoming, and other sufficient cause within the meaning of the Civil Service Law. I further CONCLUDE that respondent's home confinement general order does not infringe upon appellant's constitutional liberty rights either facially or as applied, that such rule has a prophylactic effect on malingering, and that it is sustainable in all respects. I further CONCLUDE Charge 1 Specification (d) was untimely as it was filed beyond the statutory forty-five day rule from discovery.

....

Having sustained all ten charges at the department level, [the NHRFR] ordered Winters' removal effective November 30, 2006. This [o]rder sustains only [c]harge 4, outside employment while on sick leave . . . . In view of the deferential standard that applies to the review of agency disciplinary sanctions, and the lack of evidence or even argument that removal is so disproportionate to the offense that it shocks one's sense of fairness, the tribunal sees no basis to disturb [the NHRFR's] sanction.

[(internal citations omitted).] On October 10, 2008, the Commission issued its final decision, accepting and adopting the ALJ's findings, including the ALJ's recommendation to grant NHRFR partial summary decision on count four. The Commission also concluded that removal was the appropriate sanction. Additionally, the Commission affirmed the ALJ's determination that "the home confinement rule is constitutionally valid in New Jersey and that it has a preventative effect against malingering and abuse of sick leave." However, contrary to the ALJ's recommendation, the Commission did not grant appellant partial summary decision on count one (d),

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determining that the issue was moot. In so doing, the Commission stated in relevant part: Upon its de novo review of the record, the Commission adopts the recommendation of the ALJ to grant the appointing authority's motion for partial summary decision and uphold the removal. It also denies the appellant's motion for partial summary decision.

....

In this case, it is undisputed by the appellant that he worked for Old Bridge and Long Branch while he was out on paid sick leave. The Commission agrees with the ALJ that the home confinement rule is constitutionally valid in New Jersey and that it has a preventive effect against malingering and abuse of sick leave. Although the appellant argues that the Commission does not have standing to review this matter, [the] ALJ determined that the no outside employment while on sick leave rule was a work rule. Accordingly, the appellant's violation of the rule is cognizable under Civil Service law and rules as it is constitutes conduct unbecoming a public employee. With respect to the argument that the ALJ failed to initiate an analysis to determine predominant interest, the record does not evidence that the appellant filed an unfair labor practice charge with PERC [the Public Employment Relations Commission] on this matter or that he presented a motion to consolidate these matters with a pending unfair labor practice charge, in compliance with N.J.A.C. 1:1-17.1, Motion to consolidate, and N.J.A.C. 1:117.3, Standards for consolidation. Thus, there was no reason for the ALJ to determine if these matters should be consolidated and make a determination as to which agency should have the predominant interest.

The appellant contends that summary decision was inappropriate because he did not have the opportunity to have his psychiatrist testify on the therapeutic value of his working in another position while he was out on sick leave. The Commission disagrees. It is irrelevant if his working in another capacity for another employer while out on paid sick leave had a therapeutic value to his medical condition. The rule clearly prohibits this activity. Moreover, there is no evidence in the record that the appellant sought an exception to this rule from the appointing authority where he could have documented the medical necessity of obtaining other employment while out on paid sick leave for therapeutic reasons. Therefore, the Commission agrees with the ALJ's reasoning in rejecting the appellant's arguments on this point. As such, any medical testimony would have been immaterial because the no work rule while on sick leave policy did not provide an exception for when a personal physician thinks it should be permitted. Similarly, the appellant's exceptions concerning contract interpretation, the statutory intent of the 45-day rule concerning the documentation received via the OPRA [Open Public Records Act] request to Long Branch, the fact that the ALJ made medical findings without the benefit of medical testimony, the appointing authority's violations of discovery orders, and the fact that the ALJ improperly coached witnesses are frivolous and without merit. Consequently, in accordance with N.J.A.C. 1:1-12.5(b), summary decision on Count 4 was appropriate because there was no genuine issue of material fact.
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....

In determining the proper penalty, the Commission's review 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. 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. 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. 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.

In this case, a review of the appellant's past disciplinary history is unnecessary since it is clear that removal is the proper penalty. . . .

....

With respect to the instant charge of conduct unbecoming a public employee, the ALJ determined that summary judgment on the appointing authority's motion to remove the appellant was appropriate. The Commission agrees. As detailed above, working in other positions while being out on paid sick leave from a public employer is egregious conduct in that it is a serious misuse of paid sick time and public resources. Clearly, this conduct has a tendency to destroy public respect for [public] employees and confidence in the operation of [public] services. Moreover, working in another paid position while out on paid sick leave from a public employer violates the implicit standard of good behavior which devolves upon one who stands in the public eye. In these trying fiscal times, such conduct is clearly inappropriate and egregious and warrants the appellant's removal. Additionally, the Commission is cognizant of the fact that the appellant's disciplinary history also includes a 60-day suspension and demotion to Fire Fighter in 2005 for incompetency, inefficiency or failure to perform duties, insubordination, conduct unbecoming a public employee, neglect of duty, and other sufficient cause. This disciplinary history provides further reason to remove the appellant from his position.

[(Internal citations and quotations omitted).]

On appeal, appellant argues that the Commission's final decision was arbitrary and capricious because

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material facts in dispute existed, and the Commission improperly applied the wrong standard of review in considering the ALJ's decision; the OAL lacked jurisdiction over count four as the matter was properly the subject of the parties' CBA grievance procedure; the Commission should have dismissed count four because the charge was filed beyond the forty-five day limitation period contained in N.J.S.A. 40A:14-28.1; and the Commission erroneously determined that the NHRFR's home confinement rule was constitutional. Appellant first argues that the Commission did not apply the proper standard of review to the ALJ's decision. We disagree. Summary decision should be granted where: the pleadings, discovery materials and affidavits "show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to prevail as a matter of law." N.J.A.C. 1:1-12.5(b). Once the moving party presents sufficient evidence in support of the motion, the opposing party must proffer affidavits setting "forth specific facts showing that there is a genuine issue which can only be determined in an evidentiary proceeding." Ibid. This standard is substantially the same as that governing a motion under Rule 4:46-2 for summary judgment in civil litigation. Frank v. Ivy Club, 228 N.J. Super. 40, 62 (App. Div. 1988), rev'd on unrelated grounds, 120 N.J. 73 (1990), cert. denied, 498 U.S. 1073, 111 S. Ct. 799, 112 L. Ed.2d 860 (1991).

[Contini v. Bd. of Educ., 286 N.J. Super. 106, 121-22 (App. Div. 1995), certif. denied, 145 N.J. 372 (1996).] Motions for summary decision in agency actions must be analyzed "in accordance with the principles set forth by the Supreme Court in Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995)." Nat'l Transfer, Inc. v. N.J. Dep't of Envtl. Prot., 347 N.J. Super. 401, 408 (App. Div. 2002). In Brill, supra, the Court explained that a determination whether there exists a "genuine issue" of material fact that precludes summary judgment requires the motion judge to consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party. . . . The import of our holding is that when the evidence is so one-sided that one party must prevail as a matter of law, the trial court should not hesitate to grant summary judgment.

[142 N.J. at 540 (internal quotation and citations omitted).]

When reviewing a grant of summary decision, we use the same standards. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998).
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We have considered appellant's arguments challenging the Commission's decision granting the NHRFR's motion for partial summary decision on count four. We conclude that the ALJ's recommendation to grant summary decision, as adopted by the Commission, is supported by substantial, credible evidence in the record. We affirm substantially for the reasons expressed in the Commission's October 10, 2008 final decision. R. 2:11-3(e)(1)(D). Appellant argues next that the ALJ improperly applied a deferential standard of review, rather than a de novo standard in affirming the sanction of removal. Appellant contends that the ALJ erroneously employed the shock the conscience standard "and the Commission arbitrarily and capriciously sanctioned it." Not so. In support of his argument, appellant cites to that portion of the ALJ's decision stating that he was applying "the deferential standard that applies to the review of agency disciplinary sanctions." Although the ALJ may have referenced the former standard of review, the appeal is from the Commission's final decision, and the Commission correctly applied the de novo review standard in determining the appropriate sanction. Although the Commission may consider the principle of progressive discipline in determining the appropriate sanction, ibid.; West New York v. Bock, 38 N.J. 500, 523 (1962), the Commission may also impose the sanction of removal where appropriate, notwithstanding the employee's prior disciplinary history. Carter, supra, 191 N.J. at 486-87. Because we agree that the facts leading to appellant's disciplinary action by working for two separate public employers while on paid sick leave from the NHRFR constitutes egregious misconduct by a public employee, we find no reason to interfere with the Commission's sanction of removal.

Affirmed. 1 NHRFR is comprised of five Hudson County municipal fire departments: Township of Weehawken, City of Union City, Township of North Bergen, Town of West New York, and Town of Guttenberg. 2 Effective June 30, 2008, L. 2008 c. 29,

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