Opinion
DOCKET NO. A-0329-15T4
06-23-2017
IN THE MATTER OF N.L., Respondent, v. OCEAN COUNTY BOARD OF SOCIAL SERVICES, Appellant.
Sweeney & Sheehan, P.C., attorneys for appellant (Barbara A. O'Connell, on the briefs). Secare & Hensel, attorneys for respondent (Steven Secare, on the brief). Christopher S. Porrino, Attorney General, attorney for respondent The New Jersey Civil Service Commission (Valentina M. DiPippo, Deputy Attorney General, on the statement in lieu of brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3. Before Judges Vernoia and Moynihan. On appeal from the Civil Service Commission, Agency No. 2014-0901. Sweeney & Sheehan, P.C., attorneys for appellant (Barbara A. O'Connell, on the briefs). Secare & Hensel, attorneys for respondent (Steven Secare, on the brief). Christopher S. Porrino, Attorney General, attorney for respondent The New Jersey Civil Service Commission (Valentina M. DiPippo, Deputy Attorney General, on the statement in lieu of brief). PER CURIAM
The Ocean County Board of Social Services (Board) appeals the determination of the Civil Service Commission (Commission) reducing the suspension of the Board's employee, N.L., from sixty days to thirty days. The Board contends that the reduction of the sanction was "arbitrary, capricious, unreasonable, and unsupported by substantial credible evidence . . . because the [original] suspension was not so disproportionate to the offense to be shocking to one's sense of fairness." We disagree and affirm.
The Board concedes that the facts found by the administrative law judge (ALJ), and outlined in the Commission's decision, "are not in dispute and have not been appealed." As a Human Services Specialist 2 employed by the Board, N.L. interacted with and processed applications submitted by people seeking program benefits. On August 30, 2014, individuals in the Board's waiting room ridiculed another client, seen by N.L. that day, because the client is transgender. N.L. found the ridicule directed at the client abhorrent, and posted messages in support of the client on Facebook that evening. The postings revealed the ridiculed client's nickname, and that N.L. worked for the Board. N.L. also made derogatory comments about the individuals in the waiting room. The postings were seen by N.L.'s Facebook "friends" and by others, including an assistant administrator of social work employed by the Board, who was not N.L.'s Facebook "friend."
The Board suspended N.L. for sixty days for breaching client confidentiality by revealing the client's nickname, and for conduct unbecoming an employee based on her derogatory postings about the clients in the waiting room. N.L. filed an appeal.
The ALJ concluded the Board proved N.L. breached the Board's confidentiality policy because she revealed the client's nickname, which "could indirectly [have led] to the identification of the client." The ALJ also ruled that the Board did not establish that N.L. violated any other policy, including that pertaining to conduct unbecoming an employee. Applying the concept of progressive discipline, the ALJ found numerous mitigating factors, including:
the fact that the rules are not very clear regarding confidentiality and disclosure and there is very little training in this regard. Furthermore, the implications of social media are novel to everyone. In further mitigation is the fact that there was absolutely no intention on [N.L.'s] part to violate the privacy rights of the client. On the contrary, [N.L.] was speaking in defense of the client.The ALJ considered that N.L. did not have any other disciplinary infractions over the course of her five-year employment with the Board. Noting that breaches of confidentiality could not be taken lightly, the ALJ found the balance of aggravating and mitigating factors warranted reducing the suspension to ten days.
The Board filed exceptions with the Commission, which, after a de novo review, found N.L. breached client confidentiality, and that her "vulgar comments" on Facebook constituted conduct unbecoming an employee. The Commission also conducted a de novo review of the sanction and imposed a thirty-day suspension, from which the Board appeals.
Our review is limited. Only if we find the Commission's decision arbitrary, unreasonable or capricious, or unsupported by substantial, credible evidence in the record, can we reverse it. In re Stallworth, 208 N.J. 182, 194 (2011). Although we may have reached a different decision, we may not impose our views on the Commission. Ibid. Our deference extends to sanctions imposed by the Commission. Id. at 195. Our consideration is limited to "whether the 'punishment is so disproportionate to the offense, in light of all of the circumstances, as to be shocking to one's sense of fairness.'" Id. (quoting In re Carter, 191 N.J. 474, 484 (2007)).
The reasons cited by the Commission for increasing the suspension imposed by the ALJ, and increasing that meted out by the Board, are sound; the reasons are supported by the undisputed record and the reduction of the sixty-day suspension to thirty days is not arbitrary, capricious or unreasonable.
The Board cannot reasonably contend that progressive discipline is inappropriate in this case when the sixty-day suspension the Board originally imposed, and now seeks reinstatement of, followed the concept. This is not a case where the Board sought permanent dismissal of N.L., and that penalty was reduced. See Carter, supra, 191 N.J. 474 (2007) (upholding termination, instead of progressive discipline, of police officer found asleep on duty on three consecutive dates; dismissal was warranted in light of public safety concerns). Obviously, the Board did not consider N.L.'s infraction to be so serious that progressive discipline be set aside, and she be terminated. Nor is this a case involving an employee's lack of competence or fitness to perform job duties. See Klusaritz v. Cape May County, 387 N.J. Super. 305, 316 (App. Div. 2006) (finding termination was warranted when employee could not perform accounting duties), certif. denied, 191 N.J. 318 (2007).
The Commission considered the nature of the charge, the concept of progressive discipline and the employee's prior record. It found the Board's penalty too harsh in light of N.L.'s previous unblemished disciplinary record, and the ALJ's sanction too lenient because the judge minimized the breach of confidentiality by accepting N.L.'s explanation that she thought she was sharing her comment only with friends, a reason belied by the access to the comments gained by those who were not "friends." The Commission's decision properly balanced the relevant factors and the reduction of the sanction will not be disturbed.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION