166 A.3d 269
N.J. Super. Ct. App. Div.2017Background
- William Hendrickson, a fire safety inspector for the DCA's Bureau of Fire Code Enforcement, was charged after an incident in which he called his female supervisor a gender-based obscene epithet and said he wished she would get a disease. Eyewitness coworkers corroborated the event.
- The DCA issued a Final Notice of Disciplinary Action terminating Hendrickson; he appealed and a contested-case hearing at OAL followed.
- The ALJ found Hendrickson guilty, discredited his claimed lapse of memory, but reduced the sanction from removal to a six-month suspension under progressive-discipline principles.
- The Civil Service Commission (CSC) lacked a quorum due to vacancies and failed to act within statutorily prescribed time limits; because parties did not unanimously consent to further extension, the ALJ’s initial decision was "deemed adopted."
- DCA appealed the deemed-adopted six-month suspension, arguing termination was appropriate given the misconduct, the inspector’s public-safety role, and his lack of candor and remorse.
Issues
| Issue | Hendrickson's Argument | DCA's Argument | Held |
|---|---|---|---|
| Whether ALJ's deemed-adopted decision is entitled to traditional deferential agency review | Deemed-adopted decision is final agency action and merits deferential review | Agency urges review de novo on sanction because of agency expertise and that termination was appropriate | Court: Where deemed-adopted resulted from involuntary agency inability to act (vacancies), do not apply traditional deferential review; apply bench-trial standard (affirm factual findings supported by substantial evidence; review legal conclusions de novo). |
| Whether progressive discipline should mitigate removal to suspension | Progressive discipline and clean record before/after event justify suspension | Misconduct was severe, unbecoming, and contradicted public-safety duties; progressive discipline should be bypassed | Court: Progressive discipline is inapplicable; termination is warranted as a matter of law given public-safety role, egregious discriminatory language, lack of candor and remorse. |
| Whether the ALJ's factual findings (use of slur, credibility) are supported | ALJ's credibility findings should stand | Agency does not contest facts but challenges adequacy of sanction given facts and job duties | Court: ALJ’s factual findings are supported by substantial credible evidence and are affirmed. |
| Effect of 2014 amendment to deemed-adopted statute on review/remedy when agency lacks quorum | Deemed-adopted statute yields final decision entitled to deference regardless of cause of delay | Agency argues statute should not force deferential posture where delay is involuntary and remand is impossible | Court: 2014 amendment eliminates "good cause" extension, but when vacancies cause involuntary inaction, courts should avoid automatic deference; apply bench-trial review and may reinstate original agency sanction. |
Key Cases Cited
- King v. New Jersey Racing Comm'n, 103 N.J. 412 (1986) (disfavored automatic approval; deemed-adopted not applied where lack of quorum made agency delay unavoidable)
- Matturri v. Board of Trustees of the Judicial Retirement System, 173 N.J. 368 (2002) (declined to apply automatic approval where agency scheduling idiosyncrasies caused delay)
- Capone v. New Jersey Racing Commission, 358 N.J. Super. 339 (App. Div. 2003) (applied deemed-adopted where agency delay was inexcusable neglect/gross indifference)
- In re Herrmann, 192 N.J. 19 (2007) (progressive discipline can be bypassed for severe misconduct or when continuation is contrary to public interest)
- Stallworth v. Civil Service Commission, 208 N.J. 182 (2011) (standard of appellate review of disciplinary actions; deference to agency unless action is arbitrary, capricious or unreasonable)