In the Matter of Lucy Alonso, Department of Corrections DOP Docket No. 2007-2867 (Merit System Board, decided April 9, 2008) The appeal of Lucy Alonso, a Personnel Assistant 2 with Northern State Prison, Department of Corrections, of her 60 working day suspension, on charges, was heard by Administrative Law Judge Jesse H. Strauss (ALJ), who rendered his initial decision on February 1, 2008. No exceptions were filed by the parties. However, a letter in support of the initial decision was filed on behalf of the appointing authority. Having considered the record and the ALJ’s initial decision, and having made an independent evaluation of the record, the Merit System Board (Board), at its meeting on April 9, 2008, accepted and adopted the Findings of Fact as contained in the attached initial decision, but did not adopt the ALJ’s recommendation to uphold the 60 working day suspension. Rather, the Board increased the penalty to a 90 working day suspension. DISCUSSION The appellant was suspended for 60 working days on charges of incompetency, inefficiency, failure to perform duties, neglect of duty, and falsification. Specifically, the appointing authority asserted that the appellant failed to report and process secondary employment documents, and as a result, disciplinary action was instituted on an officer. Moreover, the appointing authority asserted that on October 31, 2005, the appellant came to work at night and created letters that she backdated in an attempt to give the appearance that she had completed her assignments. Upon the appellant’s appeal to the Board, the matter was transmitted to the Office of Administrative Law (OAL) for a hearing as a contested case. In the initial decision, the ALJ sets forth that the appellant had the primary responsibility for processing secondary employment applications. Specifically, the appellant was to receive and review the applications to ensure that all required information was entered, including supervisory approval and a notarized signature from the secondary employer. The appellant was then required to draft a memo for the human resource manager’s review and signature and forward the memo, along with the application, to the ethics liaison of the Office of Legislative Services. The manager at the time was Alma Miley, who testified at the OAL. Additionally, the appellant was required to place a copy of the application and memo in the applicant’s personnel file and record the date she sent the application and the date it was approved in a log maintained in the office. In October 2005, Senior Correction Officer Kimberly Jones complained to Miley that she and
Correction Sergeant Robert Haskins were facing disciplinary action as a result of engaging in unapproved secondary employment. However, Jones contended that she had submitted her application to the appellant. Miley reviewed the files of Jones and Haskins and found no recent secondary employment applications. Moreover, regarding the maintenance of a log, the appellant advised Miley that she must have mislaid the logs and subsequently produced a handwritten log containing one name for 2004 and one name for 2005, which were not the names of Jones or Haskins. However, the Office of Legislative Services had a list of 28 names for 2004 and 13 names through October 2005. The appellant also replied that she shredded the applications once the Office of Legislative Services gave its approvals. Miley requested that the appellant produce copies from her computer of the memoranda that she had sent to the Office of Legislative Services. The appellant printed five memoranda, but copies were not located in the applicants’ personnel files. Moreover, the appellant requested that she stay late at work on October 31, 2005 to locate more memoranda. Miley, however, observed the appellant typing the memoranda. It was confirmed that the appellant had written four memoranda on October 31, 2005 and November 1, 2005, which bore earlier dates. As a result of the missing records, Miley and her staff spent three days locating the information so that no other employee would be mistakenly disciplined. Finding the testimony of Miley credible, the ALJ concluded that the appellant neglected her duties, failed to perform some of her duties, and performed other duties inefficiently. Additionally, the ALJ determined that the appellant created false memoranda in an effort to “cover up” her neglect. The ALJ stated that the appellant’s neglect was “neither isolated nor inadvertent.” Moreover, the appellant’s conduct led to “serious consequences beyond a minor inconvenience.” Further, as to the penalty, the ALJ reviewed the appellant’s disciplinary record and found that the appellant received an eight-day suspension for insubordination in January 1991; a 12-day suspension for insubordination in January 1991; a 365-day suspension for insubordination in April 1991, 1 an undated 10-day suspension for improperly questioning an officer; 2 and several minor disciplinary actions, which included insubordination charges and a neglect of duty charge. Moreover, although not noted by the ALJ, the appellant received a prior 60 working day suspension for insubordination in October and November 2005, as reflected in Exhibit R-10, Department of Corrections Work History for Alonso.
The appellant had been removed as a Personnel Management Analyst 3 with the Department of Personnel, but pursuant to a settlement agreement, the appellant was reinstated and her absence from work was treated as a suspension. See In the Matter of Lucy Alonso (MSB, decided March 24, 1992). 2 Department of Personnel records indicate that the 10-day suspension was for an incident in May 2005.
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Therefore, based on the egregiousness of her actions and her prior disciplinary history, the ALJ concluded that the appointing authority’s imposition of a 60 working day suspension was appropriate. The appointing authority submits a letter in support of the ALJ’s decision. It emphasizes that the appellant’s neglect caused Jones to face a disciplinary sanction, which would have cost Jones several thousands of dollars, and created a situation for possible liability claims against the Department of Corrections. The notarized signature from the secondary employer holds harmless the Department of Corrections. Therefore, the appointing authority submits that the appellant should be penalized for her actions. Upon independent review of the record, the Board agrees with the ALJ’s assessment of the charges and the credibility findings and that the appointing authority has met its burden of proof in this matter. However, regarding the penalty, the Board disagrees that a 60 working day suspension is sufficient. Rather, for the reasons set forth below, the Board determines that the penalty should be increased to a 90 working day suspension. In determining the proper penalty, the Board’s review is de novo. In addition to considering the seriousness of the underlying incident in determining the proper penalty, the Board utilizes, when appropriate, the concept of progressive discipline. West New York v. Bock, 38 N.J. 500 (1962). Although the Board applies the concept of progressive discipline in determining the level and propriety of penalties, an individual’s prior disciplinary history may be outweighed if the infraction at issue is of a serious nature. Henry v. Rahway State Prison, 81 N.J. 571, 580 (1980). Additionally, N.J.S.A. 11A:2-19 and N.J.A.C. 4A:2-2.9(d) specifically grant the Board authority to increase or decrease the penalty imposed by the appointing authority. The only limitation on this authority is that “removal shall not be substituted for a lesser penalty.” Increases in disciplinary penalties have been upheld in prior cases, where the circumstances warranted such an increase. See Sabia v. City of Elizabeth, 132 N.J. Super. 6 (App. Div. 1974); Dunn and Shogeke v. Merit System Board, Docket No. A4645-96T1 (App. Div. March 20, 1998); In the Matter of Craig Davis, South Woods State Prison, Department of Corrections, Docket No. A-4345-02T3 (App. Div. August 2, 2004) (Board affirmed increase from a 15-day suspension to a six-month suspension for a Senior Correction Officer found guilty of inappropriate touching of an inmate during a strip search); In the Matter of Daniel McConnell (MSB, decided April 5, 2006) (Board increased a Police Officer’s 20-day suspension to a 30-day suspension for engaging in a multi-jurisdictional vehicle pursuit without authorization); In the Matter of Francisco Ortiz (MSB, decided March 22, 2006) (Police Officer who lost his
service weapon when he was involved in a scuffle out of state while he was off duty had 12-day suspension increased to 45-day suspension); In the Matter of Frederick Dusche (MSB, decided April 23, 2003) (Police Officer found guilty of falsely arresting civilian had 30-day suspension increased to six-month suspension). In the instant matter, the appellant’s disregard of her duties caused significant disruption at Northern State Prison. Jones faced disciplinary action for not obtaining approval for secondary employment, although she submitted an application to the appellant. The Board notes that the investigation of Jones and other officers due to the appellant’s neglect resulted in unnecessary work. Additionally, the human resource office took three days to locate missing information and to rectify the situation which the appellant caused. Moreover, the appellant falsified documents in an attempt to give the appearance that she completed her assignments. The Board will not tolerate such conduct, which undermines the trust that is placed on staff members with responsibility for personnel records. Furthermore, the appellant has a substantial disciplinary record, containing five major disciplines, which already includes a recent 60 working day suspension, and several minor disciplines. Accordingly, the Board determines that a 90 working day suspension is the appropriate penalty. This penalty should serve as a warning to the appellant that any future infraction may result in a more severe penalty, including her removal from employment. ORDER The Board finds that the appointing authority’s action in imposing disciplinary action was justified. However, the Board modifies that action to increase the 60 working day suspension to a 90 working day suspension. Therefore, the Board dismisses the appeal of Lucy Alonso. This is the final administrative determination in this matter. further review should be pursued in a judicial forum. Any