New Jersey employment law affords civil service employees with many due process protections when their employer seeks to impose discipline. The Appellate Division’s recent decision in a civil service discipline appeal in the case of In the Matter of Figueroa, Camden County, Department of Parks examines one of the fundamental principles of these protections – the notice required to be received by the employee before discipline may be imposed.
Adrian Figueroa, Jr., was a laborer for Camden County, a civil service jurisdiction, for 5 years. He was charged with second-degree sexual assault and spent several days in jail after his arrest. While he was in jail someone, it is unclear who, called and said he was out sick. Eventually the County learned of the charges and served him with preliminary and then final notice of disciplinary action (a “PNDA” and “FNDA,” Forms 31-A and 31-B) suspending him pending the resolution of the charges. They were eventually downgraded and Figueroa pled guilty to harassment, a petty disorderly office.
Unlike a conviction of a second degree crime, conviction of a petty disorderly offense does not require automatic forfeiture of public employment. The County, however, served Figueroa with a PNDA seeking his termination for conduct unbecoming a public employee and other sufficient cause. The specifications stated that the charges were based on his conviction for harassment and having someone falsely call him out sick. A departmental hearing officer concurred and recommended his immediate termination. The County then issued Figueroa a FNDA terminating his employment. Figueroa appealed to the New Jersey Civil Service Commission.
The Civil Service Commission Appeal
The New Jersey Civil Service Commission transferred the appeal to the Office of Administrative Law, where an administrative law judge (known as an “ALJ”) held a hearing. After hearing testimony, the ALJ agreed with the County and issued a recommended decision sustaining the charges and terminating Figueroa’s employment. The ALJ explained that he found that Figueroa had committed conduct unbecoming a public employee by using sick time to attend court hearings and committing harassment.
The Civil Service Commission affirmed the ALJ’s decision terminating Figueroa’s employment. It did not make any independent findings of fact, but explained that it adopted and was relying on the findings of fact in the ALJ’s decision. Figueroa appealed the New Jersey Civil Service Commission’s decision to the Appellate Division of the New Jersey Superior Court.
The Appellate Division’s Decision
The Appellate Division overturned the Civil Service Commission’s decision. It explained that while appeals courts will normally defer to the decisions of administrative agencies such as the New Jersey Civil Service Commission, that deference is not unlimited. The Commission’s decisions will be overturned on appeal if they are not supported by sufficient credible evidence in the record or if there is a mistake of law.
Here, the Appellate Division explained that there was no testimony at all that Figueroa had used sick time to attend hearings. Therefore the evidence could not sustain the ALJ’s finding that he had. Moreover, there was nothing in the FNDA terminating Figueroa, from which he appealed, which indicated that he was being disciplined for using sick time for hearings. Because it was not contained in the charges against him, it was a violation of due process, and therefore a mistake of law, to use this as the basis for the judge’s decision.
However, while the Appellate Division found that this was an improper basis for the New Jersey Civil Service Commission’s decision, it was not the only basis – it also based it on the harassment. Therefore the Appellate Division could not tell whether the Commission would have sustained the charges or given a lesser punishment only for the harassment. The Appellate Division therefore remanded the case to the Commission for it to consider the appeal based on the ALJ’s findings of fact only about the harassment charges.
In New Jersey, a civil service employee can only be disciplined for the charges and specifications contained in the disciplinary notice. This is because the fundamental requirement of due process is that when the government takes action against a person it must inform her of the charges against her so that she may prepare an adequate defense. Likewise, New Jersey Civil Service Commission decisions must be based on actual evidence contained in the hearing record.
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