NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
PER CURIAM.
Appellant Department of Human Services (DHS) appeals from a final agency decision of the Civil Service Commission (Commission) that reduced the DHS's penalty of employment termination to a six-month suspension for respondent Isaiah Knowlden, a Human Services Assistant at Trenton Psychiatric Hospital (the hospital). We affirm.
We discern the following factual and procedural background from the record. On December 2, 2009, Knowlden was removed from his position at the hospital on charges of physical abuse of a patient, inappropriate physical contact or mistreatment of a patient, falsification, conduct unbecoming a public employee, and violation of DHS policy and procedures with regard to reporting. The charges stemmed from an altercation at the hospital on July 25, 2009, where it was alleged that Knowlden punched a psychiatric patient, K.J. (Kaleb),1 after being attacked. Knowlden appealed to the Commission, and the contested case was transmitted to the Office of Administrative Law.
On June 6 and July 14, 2011, an administrative law judge (ALJ) conducted a hearing. The ALJ heard testimony from Rose Douglas, an Assistant Director of Nursing who witnessed the incident; David Gibson, a fellow Human Services Assistant who also witnessed portions of the incident; Eugene Colvin, a staff trainer in crisis intervention and conflict resolution; and Knowlden on his own behalf. The ALJ also reviewed a video recording of the incident, which was entered into evidence.
On August 22, 2011, the ALJ rendered a written decision setting forth her fact-findings and conclusions of law. The ALJ found that on July 25, 2009, Kaleb became agitated and began to remove paneling from the wall. Knowlden and Douglas successfully redirected Kaleb for a few moments, but Kaleb soon re-commenced tearing off the paneling. When Knowlden and Douglas again tried to redirect Kaleb, Kaleb began to punch Knowlden about the face. Knowlden, who was startled, hit Kaleb back in the mouth, which caused a cut that started to bleed. This caused another patient, W.D. (Walden), a very large man, to intervene by chasing Knowlden and kicking and choking him. When Gibson arrived from another wing, he was able to redirect Walden from his attack on Knowlden. Kaleb then began to attack Knowlden again. Walden eluded Gibson and also re-commenced his attack on Knowlden, who was now being punched by both men, but he did not strike out at either man. Finally, Knowlden was able to extricate himself and leave the area.
Knowlden did not dispute that the incident occurred, but denied intentionally punching Kaleb. The ALJ found that, although the video recording did not show Knowlden striking Kaleb, Knowlden could be seen pulling back his arm after Kaleb struck him in the face, and Kaleb could be seen reacting to a blow as his head jerked back. The ALJ determined that, although it may have been a startled or reflexive reaction, Knowlden did strike Kaleb in the mouth causing a bloody cut.
The ALJ concluded that the DHS proved by a preponderance of the evidence the charges of physical abuse of a patient, engaging in inappropriate physical contact or mistreatment of a patient, violations of rules and regulations, conduct unbecoming a public employee, and other sufficient cause. However, the ALJ concluded that the charge of falsification was not proven.
In addressing Knowlden's penalty, the ALJ recounted the mitigating facts. The ALJ pointed out that Knowlden had worked at the hospital for over ten years with only two minor disciplines, both of which were remote in time. Knowlden was a conscientious employee, and previous attacks by patients were handled in accordance with procedure. Knowlden's striking of Kaleb may have been reflexive as no one was coming to assist him and Douglas during the attack. The ALJ further noted that the testimony demonstrated that Knowlden's conduct during the entire incident was proper and in accordance with guidelines and training except the one strike to Kaleb. The ALJ concluded, however, that such conduct cannot be tolerated at the hospital, and even though Knowlden had an unblemished record of service, the severity of the conduct required a penalty of removal.
In an October 20, 2011 written final decision, the Commission accepted and adopted the ALJ's finding that Knowlden struck Kaleb. However, the Commission found that the evidence made it clear that Knowlden's punch was a reflex in response to the attack, he had previously attempted to redirect the patient, all his other actions throughout the incident followed proper procedure, and he did not have the intent to harm Kaleb. Thus, the Commission concluded, relying on In re Taylor, 158 N.J. 644, 661 (1999), that because there was no evidence of malicious intent, a finding of physical abuse was not correct. The Commission found Knowlden guilty of inappropriate physical contact of a patient and conduct unbecoming a public employee, and reduced his penalty to a six-month suspension.
The DHS filed a request for reconsideration. On April 5, 2012, the Commission issued a written decision granting reconsideration of its prior decision. The DHS recognized that at the time of the incident that gave rise to this matter, the DHS's Administrative Order 4:08 defined "physical abuse" as:
a physical act directed at an individual, patient or resident of a type that could tend to cause pain, injury, anguish, and/or suffering. Such acts include but are not limited to the individual, patient, or resident being kicked, pinched, bitten, punched, slapped, hit, pushed, dragged, and/or struck with a thrown or held object.
Upon reconsideration, the Commission agreed with the DHS that Knowlden's actions fell within the DHS's definition of physical abuse. The Commission acknowledged that the requirement of malicious intent as established in Taylor was not applicable in this case because the definition of physical abuse had been changed to eliminate that requirement after Taylor was decided. Nevertheless, the Commission again determined that removal was not warranted, and affirmed the six-month suspension. The Commission explained:
[T]he deletion of the language from DHS's policy does not preclude the Commission from considering the intention of an employee in situations involving physical abuse allegations. In other words, while malicious intent is not necessary to sustain a finding of physical abuse, the employee's intent is certainly relevant to the penalty to be imposed. In the present case, Knowlden's conduct was clearly a reaction to being punched himself and he did not act maliciously nor did he have the intent to harm the patient, given that all of his preceding attempts to defuse the situation were appropriate. Moreover, Knowlden did not have any major discipline in his [ten] years of employment. Therefore, removal was too harsh a penalty and modification of the penalty to a six-month suspension was appropriate.
The DHS again requested reconsideration, and on May 8, 2012, the Commission denied the request. This appeal followed.
On appeal, the DHS argues that the Commission's decision reinstating Knowlden to his position working with psychiatric patients after he was found to have abused a patient in his care is arbitrary and capricious and interferes with its express legislative mandate to protect psychiatric patients from abuse. We do not agree.
An ALJ's factual findings and legal conclusions are not "binding upon [an] agency head, unless otherwise provided by statute." N.J.A.C. 1:1-18.1(c). Accordingly, N.J.S.A. 11A:2-6(b) authorizes the Commission to review the ALJ's decision "de novo on the written record and render a final administrative decision in those matters." In re Juvenile Detention Officer Union Cnty., 364 N.J.Super. 608, 614 (App. Div. 2003) (emphasis omitted).
The Commission may reject or modify fact findings as well as the legal conclusions or interpretations of agency policy made by the ALJ. N.J.S.A. 52:14B-10(c). However, rejection or modification of an ALJ's "findings of fact as to issues of credibility of lay witness testimony" is impermissible unless the Commission "first determined from a review of the record that the findings are arbitrary, capricious or unreasonable or are not supported by sufficient, competent, and credible evidence in the record." N.J.S.A. 52:14B-10(c). The Commission may also "increase or decrease the penalty imposed by the appointing authority[.]" N.J.S.A. 11A:2-19.
Our scope of review of an administrative agency's final determination is limited. In re Carter, 191 N.J. 474, 482 (2007). The agency's final decision will be sustained unless an appellate court finds the decision to be "`arbitrary, capricious, or unreasonable, or [ ] not supported by substantial credible evidence in the record as a whole.'" In re Stallworth, 208 N.J. 182, 194 (2011) (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980)). The burden of showing that the agency's decision was arbitrary, unreasonable, or capricious rests with the appellant. See Barone v. Dep't of Human Servs., Div. of Med. Assistance & Health Servs., 210 N.J.Super. 276, 285 (App. Div. 1986), aff'd, 107 N.J. 355 (1987).
To determine whether the Commission's final decision is arbitrary, capricious, or unreasonable, the reviewing court must examine the following three prongs:
(1) whether the agency's action violates express or implied legislative policies, that is, did the agency follow the law; (2) whether the record contains substantial evidence to support the findings on which the agency based its action; and (3) whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors.
[Stallworth, supra, 208 N.J. at 194 (internal quotation marks and citation omitted).]
"When an agency's decision meets those criteria, then a court owes substantial deference to the agency's expertise and superior knowledge of a particular field." In re Herrmann, 192 N.J. 19, 28 (2007) (citing In re License Issued to Zahl, 186 N.J. 341, 353 (2006)). "Deference controls even if the court would have reached a different result in the first instance." Ibid. (citing Taylor, supra, 158 N.J. at 657). Deference "applies to the review of disciplinary sanctions as well." Ibid. (citing Knoble v. Waterfront Comm'n of N.Y. Harbor, 67 N.J. 427, 431-32, (1975)).
"A useful calculus for the first prong of this agency review test, violation of express or implied legislative policies, is the inquiry whether the decision `was not premised upon a consideration of all relevant factors [ ] [or conversely] a consideration of irrelevant or inappropriate factors.'" In re Warren, 117 N.J. 295, 297 (1989) (quoting State v. Bender, 80 N.J. 84, 93 (1979)). One relevant factor is the employee's disciplinary history. A reviewing court may intervene in an agency's modification of a penalty when the agency fails to consider the significance of the employee's prior record. See Stallworth, supra, 208 N.J. at 200 (2011) (remanding where Commission reduced penalty without fully addressing employee's extensive record of misconduct).
Another relevant factor is the severity of the conduct. A reviewing court may intervene when the agency fails to consider the seriousness of the misconduct within the overall context of the work environment as it relates to public safety and the safety of other employees. See Henry, supra, 81 N.J. at 580 (remanding where Commission reduced penalty of terminated corrections officer without considering how his conduct could "disrupt and destroy order and discipline in a prison"); Bowden v. Bayside State Prison, 268 N.J.Super. 301, 305-06 (App. Div. 1993) (reversing Commission decision to reinstate corrections officer noting that the agency failed to consider the severity of his conduct in light of the fact that prisons, "if not properly operated, have a capacity to become `tinderboxes'"), certif. denied, 135 N.J. 469 (1994).
After thoroughly reviewing the record in light of the relevant legal principles and standard of review, we are satisfied that the Commission's decision to impose a six-month suspension upon Knowlden was not arbitrary, capricious, or unreasonable, and the decision is supported by sufficient credible evidence. See Stallworth, supra, 208 N.J. at 194. To meet its burden on appeal, the DHS must show that (1) the Commission's decision did not follow the law; (2) the record did not contain substantial evidence to support the decision; or (3) the Commission's decision could not reasonably have been made based on the relevant factors. See ibid. DHS has not met this burden.
In applying the first prong, the record reveals that the Commission gave careful consideration to the severity of Knowlden's conduct in light of his and the DHS's duty to protect the rights and safety of psychiatric patients pursuant to N.J.S.A. 30:4-24.2. See Henry, supra, 81 N.J. at 580; Bowden, supra, 268 N.J. Super. at 305-06. After considering the mitigating factors, such as Knowlden's lack of malicious intent, the Commission ultimately concluded that his conduct constituted a "serious charge" that was "extremely troublesome," and deserved a major disciplinary action pursuant to N.J.A.C. 4A:2-2.2(a)(3). The Commission further noted that Knowlden's penalty of a six-month suspension was the most severe penalty the Commission could impose short of removal.
The record further reveals that the Commission carefully considered Knowlden's employment history, and found that the two minor and remote attendance-related disciplines mitigated against the harsh penalty of removal. See Stallworth, supra, 208 N.J. at 195. The Commission is not bound by the DHS's penalty schedule and has the statutory authority to determine the appropriate penalty. N.J.S.A. 11A:2-19. We are satisfied that the Commission's decision was premised upon a thorough consideration of all the relevant factors, and that the decision does not violate any express or implied legislative policies. See Stallworth, supra, 208 N.J. at 194; Warren, 117 N.J. at 297.
Regarding the second prong, the record demonstrates that the Commission's decision was based upon sufficient credible evidence. See Stallworth, supra, 208 N.J. at 194. In fact, the DHS does not contend that the Commission erroneously accepted the ALJ's findings about the incident or the existence of several mitigating factors or that the credibility findings were arbitrary, capricious, or unreasonable pursuant to N.J.S.A. 52:14B-10(c). In particular, there is sufficient evidence in the record to support the ALJ's finding that Knowlden struck Kaleb reflexively with no intent to cause harm or retaliate. Thus, after reviewing the record, we are satisfied that the Commission's decision was based upon sufficient credible evidence. See Stallworth, supra, 208 N.J. at 194.
In applying the third prong, it is clear from the record that the Commission could reasonably determine that Knowlden's misconduct warranted a penalty less than termination, based upon an assessment of the severity of his conduct in light of his lack of prior major discipline and lack of malicious intent. The Commission's decision is not "so wide of the mark as to justify this Court's substitution of its judgment." Herrmann, supra, 192 N.J. at 36. After considering the record in light of our standard of review, we find no reason to interfere with the Commission's sanction of a six-month suspension.
Affirmed.
