ORDER. This is the final administrative determination in this matter. Any further review should be pursued in a judicial forum.

Transcription

1 In the Matter of Joyce Moss, Department of Public Safety Mercer County CSC DKT. NO OAL DKT. NO. CSV (Civil Service Commission, decided March 25, 2009) The appeal of Joyce Moss, County Correction Officer, Mercer County, Department of Public Safety, removal effective August 29, 2007, on charges, was heard by Administrative Law Judge Lisa James-Beavers, who rendered her initial decision on December 12, Exceptions and cross exceptions were filed on behalf of the parties. Having considered the record and the Administrative Law Judge s initial decision, and having made an independent evaluation of the record, the Civil Service Commission, at its meeting on March 25, 2009, accepted and adopted the Findings of Fact and Conclusion as contained in the attached Administrative Law Judge s initial decision. ORDER The Civil Service Commission finds that the action of the appointing authority in removing the appellant was justified. The Commission therefore affirms that action and dismisses the appeal of Joyce Moss. This is the final administrative determination in this matter. Any further review should be pursued in a judicial forum.

2 State of New Jersey OFFICE OF ADMINISTRATIVE LAW INITIAL DECISION OAL DKT. NO. CSV AGENCY DKT. NO I IN THE MATTER OF JOYCE MOSS, MERCER COUNTY. Stuart J. Alterman, Esq., for appellant Joyce Moss (Alterman & Associates, attorneys) Kenneth Skroumbelos, Assistant County Counsel, for respondent Mercer County (Arthur R. Sypek, Jr., County Counsel) Record Closed: May 21, 2008 Decided: December 12, 2008 BEFORE LISA JAMES-BEAVERS, ALJ: STATEMENT OF THE CASE AND PROCEDURAL HISTORY Appellant Joyce Moss, a correction officer at the respondent Mercer County Correction Center (MCCC), appeals her removal on the charges of conduct unbecoming a County employee, N.J.A.C. 4A:2-2.3(a)(6), and falsification: intentional misstatement of material fact in connection with work,

3 employment, application, attendance, or in any record, report, investigation or other proceeding. The County alleges that Moss submitted a forged doctor s note as evidence to support her claim that a call-off for which she had been docked and subsequently charged was related to her family medical leave. Moss was served with a Preliminary Notice of Disciplinary Action on December 7, Following a departmental hearing on July 17, 2007, Moss was served with a Final Notice of Disciplinary Action on August 29, By letter dated September 12, 2007, Moss appealed to the Merit System Board, which transmitted the case to the Office of Administrative Law (OAL) as a contested case under N.J.S.A. 52:14B-2(b). The case was filed in the OAL on December 17, 2007, and heard on May 21, The record remained open for written closing summations and replies. The record closed on August 7, 2008, and the decision was rendered pursuant to extensions granted to December 26, FACTUAL DISCUSSION Dr. Maria Obleada testified that she is a pediatrician who has been in practice for sixteen years. Her solo practice is Children First Medical Care in Lawrenceville. Joyce Moss s son Kenneth has been her patient since he was an infant. In March 2005, Ms. Moss requested a letter stating that her son has asthma and setting forth what medications she can give him. Ms. Moss requested the letter by telephone. Dr. Obleada did not see her son on that date. She issued the letter because a school cannot dispense medication without a letter from a doctor. In accordance with her standard procedure, her receptionist left her a message that Ms. Moss needed the letter. She then wrote the letter. R-4. When Dr. Obleada was shown a similar letter dated December 22, 2005, R-1, she testified that R-1 is a copy of her March letter that was altered in two

4 ways. First, on the last line, the words visit on 12/22/05 are not in her handwriting and were added. She did not see Kenneth on December 22, She would not say visit if she did not see him. Also, the date under her signature was altered from 3/7/05 to 12/22/05. If a patient wanted a back-toschool note or an appointment verification note after a visit, then she would just put the name, date and time the child was seen, and when the child may return to school. She would not put the diagnosis and medication on the note because it would be against the privacy laws. She would just say that he had been seen. Exhibit R-1 is not a form for a visit. Her staff is not authorized to prepare the note. She is the only doctor in the office and the only one who can write such a note. Two of the three staff people she had in her office are still with her. The one who left had planned to resign well before Ms. Moss s incident. Ms. Moss s call from March 7, 2005, was set forth in the notes in the office; however, there is no entry for December 22, If Ms. Moss had called on that date, there would be an entry in the book. To the best of Dr. Obleada s knowledge, the policies were adhered to on the date in question. Dr. Obleada is certain that she did not see Kenneth on December 22, 2005, because a parent has to call to make an appointment for her child. If a parent calls, then staff will enter the appointment in the computer. When the child then comes in, the parent must see the receptionist and sign in. The receptionist will then get the information on the patient s insurance. Next, the medical assistant will escort the patient to the waiting room and take the patient s history and write on his or her chart. She will also take vital signs. Dr. Obleada then sees the patient, including reviewing the patient s medical history, examining the patient, making the diagnosis, prescribing medication if necessary, and writing notes on the chart. The patient will then go through the check-out person. After reviewing all of her records for December 22, 2005, Dr. Obleada concluded that there was no record of having seen Ms. Moss or Kenneth on that date.

5 Dr. Obleada continued that prior to her testimony on January 3, 2007, in Ms. Moss s OAL hearing on the ten-day suspension imposed for violating the MCCC attendance policy on December 21-22, 2005, 1 Ms. Moss called Dr. Obleada upset. She apologized for what happened and for Dr. Obleada being required to testify. She expressed worry that Kenneth would no longer be able to be treated at Dr. Obleada s practice and she would have to look for another pediatrician. Dr. Obleada told her that she would have to look for another doctor because they could not have a good relationship when there was no more trust. Dr. Obleada no longer trusted Ms. Moss because her March 2005 note was altered. Richard Bearden testified that he has been a captain at the MCCC since November On November 2, 2006, he testified in the earlier OAL hearing against Ms. Moss. 2 Prior to the start of the hearing, County Counsel Skroumbelos advised him that Ms. Moss had submitted a doctor s note showing that Moss s absence for the day then in question was covered by the Family and Medical Leave Act (FMLA). Mr. Skroumbelos also told him that the note was a forgery. Mr. Skroumbelos called Ms. Moss to testify and she stated under oath that the note was accurate. When Mr. Skroumbelos confronted her about the forgery, she denied that the note was forged and the administrative law judge (ALJ) ordered an adjournment. Mr. Skroumbelos gave a copy of the forged note to the warden with a certified statement from Dr. Obleada that the note in question was a forgery. Captain Bearden read Ms. Moss s testimony from November 2, 2006, in which she stated that her son s visit to the doctor was the reason she called out on December 22, 2005, and R-1 is the note that she submitted to Bob Zorn, the time and attendance keeper, days after her preliminary hearing to support that she had an FMLA reason for calling out on December 22, He did not conduct any investigation or order anyone else 1 In re Moss, CSV , Initial Decision (April 18, 2007), adopted, Merit System Bd. (July 11, 2007) < 2 See note 1.

6 to investigate before charging Ms. Moss with falsification and conduct unbecoming a public employee. Joyce Moss testified that she worked for the MCCC since January 28, She is a single parent with two children. Her son has asthma that gets worse with the change of seasons. He had problems on the night of December 21, 2005, for which he used a nebulizer. She worked the 11:00-p.m.-to-7:00- a.m. shift. She received a call that her son was sick. She could not take him to the emergency room without contacting his primary doctor. She called the doctor s office and left a message on the answering machine. She went home and told her daughter to call her job, which she did. She then proceeded to take Kenneth to the emergency room. On the way, she got him some medication. She then got a call that she should take Kenneth to Pediatrics by Night. She took him there and got him settled. She then got a call from Dr. Obleada and explained the situation to her. Dr. Obleada said to take him home and call her office the next morning, and that is what she did. Kenneth was not actually seen by a doctor on December 21 or 22, Ms. Moss further testified that when she testified before ALJ Sanders on November 2, 2006, she was nervous and confused. She was incorrect when she said she saw the doctor that night. Her son had a medical emergency and her daughter called her out. Regarding the note, Dr. Obleada had a procedure that if Ms. Moss s son or daughter was sick and could not go to school, she could leave a message and the office would call her when the note was ready and she could pick it up. She called the office on the morning of December 22, A member of the staff from the office called her two or three hours later and told her that she could pick the note up in the office. She went and got it and then returned home. The name of the staff member who gave it to her was Lourdes. She did not speak to her. She is not sure whether Lourdes still works there. She later gave the note to Mr. Zorn. She doesn t recall to whom she gave the note at Kenneth s school. She did not falsify the note. She produced evidence that

7 Kenneth was absent from school on December 21 and 22, She never told Dr. Obleada that Lourdes gave her the note. She did not try to contact Lourdes after the first hearing or ask Dr. Obleada where to find her. She did apologize to Dr. Obleada that this had happened. She does not think that Dr. Obleada knew about the note. The transcript of William Reis s testimony from January 2007 was admitted into evidence. He testified that he analyzed the writing on the note and concluded that it was not that of Ms. Moss. FINDINGS OF FACT Based on the testimony and documents admitted into evidence, I FIND as follows. Ms. Moss was employed as a correction officer at the MCCC beginning in January On December 22, 2005, she was absent from work and out of her allotted number of sick days. As a result, she was charged with a step-three violation of the MCCC attendance policy and suspended for ten days. She appealed the violation and suspension to the Merit System Board, which transmitted the case to the OAL for a hearing. On November 2, 2006, in the hearing on her appeal of the ten-day suspension, Ms. Moss produced a doctor s note dated December 22, 2005, to support her defense that she was absent due to her son s asthma, which would constitute FMLA leave. The note set forth that Ms. Moss s son visited Dr. Obleada on December 22, The note was dated December 22, At the November 2006 hearing, Ms. Moss testified that she received the note from her doctor a couple of days after she went to the departmental hearing on the ten-day suspension. R-2 at 58: She further testified that she took her son to see Dr. Obleada on December 22, 2005, at Pediatrics by Night. R-2 at 62:5-18.

8 Ms. Moss and her son did not see Dr. Obleada on December 21 or 22, A note that Dr. Obleada had provided to Ms. Moss on March 7, 2005, to set forth the medication that the school was able to give to Kenneth Moss was altered to reflect a visit on December 22, 2005, and a signature date of December 22, Neither the visit notation nor the signature date was in the handwriting of Dr. Obleada. Dr. Obleada was not employed at Pediatrics by Night or any other medical practice than her own solo practice at Children First Medical Care. R-5 at 9:5-18. The visit notation and signature date are also not the writing of Ms. Moss. Nevertheless, Ms. Moss submitted the note as evidence that her visit to Dr. Obleada in December 2005 in connection with her FMLA leave precluded her from attending work. CONCLUSIONS OF LAW In appeals concerning major disciplinary actions brought against classified employees, the burden of proof is on the appointing authority. N.J.A.C. 4A:2-1.4(a). The standard of proof in administrative proceedings is a preponderance of the credible evidence. In re Polk License Revocation, 90 N.J. 550 (1982); Atkinson v. Parsekian, 37 N.J. 143 (1962). The MCCC s Final Notice of Major Disciplinary Action charges Ms. Moss with N.J.A.C. 4A:2-2.3(a)(6), conduct unbecoming a County employee, and falsification: intentional misstatement of material fact in connection with work, employment, application, attendance, or in any record, report, investigation or other proceeding. The MCCC proved by a preponderance of the credible evidence that Ms. Moss, in an attempt to successfully appeal a ten-day suspension for an attendance violation, testified on November 2, 2006, that she had taken her son to Dr. Obleada on December 22, 2005, and Dr. Obleada had given her a doctor s note to prove that she had been there. The MCCC proved that Ms. Moss did not visit Dr. Obleada on the day in question, nor did Dr. Obleada give her a doctor s note to show that she had been there. The note was

9 one that Ms. Moss had been given in March 2005 that was altered to reflect a visit on December 22, 2005, and a signature date of December 22, Ms. Moss s admission at this hearing that she did not actually visit with the doctor comes too late. Her testimony that she was nervous and confused rings hollow in light of the fact that nervousness does not cause one to make up events that did not occur. Ms. Moss s testimony that she did not falsify the note may be true according to the handwriting analysis of Mr. Reis, but someone falsified the March 2005 note that Dr. Obleada had given specifically to her. She then submitted the falsified document as evidence to support her claim that the absence for which she had been docked and subsequently charged was FMLA related. The MCCC thus proved by a preponderance of the credible evidence that Ms. Moss intentionally misstated a material fact in connection with work, employment, attendance or other proceeding, which constitutes falsification. In addition, the deception Ms. Moss engaged in, which was severe enough for her son s doctor since infancy to drop him as a patient, constitutes conduct unbecoming a public employee. I CONCLUDE from the evidence submitted, together with the legitimate inferences drawn from it, that Ms. Moss committed conduct unbecoming a public employee pursuant to N.J.A.C. 4A:2-2.3(a)(6) and falsification. Regarding the penalty, once a determination is made that an employee has violated a statute, regulation or rule concerning her employment, the concept of progressive discipline must be considered. West New York v. Bock, 38 N.J. 500 (1962). While Bock did not specifically use the phrase progressive discipline, its facts strongly suggest that a record of progressive discipline should precede the ultimate penalty, which is removal. Ms. Moss s disciplinary record contains three attendance violations resulting in a written reprimand, a five-day suspension and a ten-day suspension. Ms. Moss argues through counsel in written summation that the range of penalties for the first infraction of falsification is a five-day suspension to removal.

10 One could argue based on the above that some lesser penalty would be appropriate for a first violation for falsification. However, Ms. Moss s status as a correction officer subjects her to a higher standard of conduct and responsibility than is required of other public employees. In Moorestown Township v. Armstrong, 89 N.J. Super. 560, 566 (App. Div. 1965), the Appellate Division summarized this higher standard of conduct and responsibility as follows. It must be recognized that a [law enforcement officer] is a special kind of public employee. His primary duty is to enforce and uphold the law. He carries a service revolver on his person and is constantly called upon to exercise tact, restraint and good judgment in his relationship with the public. He represents law and order to the citizenry and must present an image of personal integrity and dependability in order to have the respect of the public, particularly in a small community.... [Emphasis added.] However, where, as here, Ms. Moss engaged in a series of misstatements and falsified documents, the ultimate penalty is appropriate. There is no room for a correction officer who twice has been found to lack credibility and has been found to lack the personal integrity required of a law enforcement officer. For the foregoing reasons, I CONCLUDE that the appropriate penalty in this case for the charges of falsification and conduct unbecoming is removal. ORDER I ORDER the charges of conduct unbecoming a County employee and falsification SUSTAINED. I further ORDER the penalty of removal UPHELD. I further ORDER that the appeal of Ms. Moss be and is hereby DISMISSED. I hereby FILE my Initial Decision with the CIVIL SERVICE COMMISSION for consideration.

11 This recommended decision may be adopted, modified or rejected by the CIVIL SERVICE COMMISSION, which by law is authorized to make a final decision in this matter. If the Merit System Board does not adopt, modify or reject this decision within forty-five days and unless such time limit is otherwise extended, this recommended decision shall become a final decision in accordance with N.J.S.A. 52:14B-10. Within thirteen days from the date on which this recommended decision was mailed to the parties, any party may file written exceptions with the DIRECTOR, MERIT SYSTEM PRACTICES AND LABOR RELATIONS, UNIT H, DEPARTMENT OF PERSONNEL, 44 South Clinton Avenue, P.O. Box 312, Trenton, New Jersey , marked "Attention: Exceptions." A copy of any exceptions must be sent to the judge and to the other parties. December 12, 2008 DATE LISA JAMES-BEAVERS, ALJ Date Received at Agency: Mailed to Parties: DATE LAW OFFICE OF ADMINISTRATIVE /bdt

12 WITNESSES For appellant: Joyce Moss For respondent: Dr. Maria Obleada Richard Bearden EXHIBITS For appellant: A-1 Exhibit A-7 at prior hearing in January 2007 A-2 Testimony of William Ries For respondent: R-1 Fabrication of Dr. Obleada s March 7, 2005, note R-2 Transcript of Joyce Moss s Testimony at the Office of Administrative Law on November 2, 2006 R-3 Certification of Dr. Obleada R-4 Dr. Obleada Original March 7, 2005, note R-5 Transcript of Dr. Obleada s Testimony at the Office of Administrative Law on January 3, 2007 R-6 Final Administrative Action of the Merit System Board in the Matter of Joyce Moss, County of Mercer OAL Docket No. CSV R-7 Preliminary Notice of Disciplinary Action dated November 16, 2006, charging Joyce Moss with Falsification and conduct Unbecoming a Public Employee