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Costantino v. New Jersey Merit System Board6/16/1998
Argued May 27, 1998
On appeal from the Merit System Board.
Appellant Frank Costantino appeals from the final administrative determination of the Merit System Board (Board) upholding his termination from the position of Administrative Analyst I with the Division of Motor Vehicles (DMV) based on an adjudication of conduct unbecoming a public employee, N.J.A.C. 4A:2-2.3(a)(6), N.J.A.C. 4A:2-2.3(a)(9), by reason of a continuing course of sexual harassment of an employee under his supervision, Cynthia Scorsolini, over a period of fourteen months, namely, from September 1992 to November 1994. We reverse and remand for a new hearing.
This appeal was first before us in June 1997 under Docket Number A-6719-95T1, and by our opinion filed on July 14, 1997, we remanded to the Board for its further consideration. The basis for our action at that time was the Board's blanket acceptance, without any expressed analysis, of the factual and procedural findings by the administrative law Judge despite the extensive and detailed exceptions filed by appellant. As we explained in that opinion, "we are simply at a loss to determine, regardless of how much of the record was actually reviewed, whether the Board rejected appellant's detailed and substantial exceptions as a result of the required `personal understanding of the evidence,' or simply as a result of a blind `signing on the dotted line.' Matter of Fichner, 144 N.J. 459, 472 (1996) (quoting Lone Star Greyhound Park v. Texas Racing Commission, 863 S.W.2d 742, 749 (Tex. Ct. App. 1993))." (Slip opinion at 6). Our concern for the adequacy of the Board's review was evidently generated by what we then described as the ALJ's "selective Discussion of the evidence."
Pursuant to our remand, the Board issued a new final decision on October 7, 1997. Since we did not retain jurisdiction, appellant filed this second appeal, raising all of the procedural and factual challenges he raised on the first appeal. We reject the procedural challenges for the reasons explained by the Board in its final decision, with which we agree and which we find to be well founded in the applicable law. Our grave concern remains, however, with the Board's factual findings.
Trial of the charges of sexual harassment brought by the complaining employee involved, in the final analysis, the necessity for a critical finding as to credibility. That is to say, Scorsolini's claims both as to specific events and appellant's general conduct were largely uncorroborated and, to a significant extent, were contradicted by the witnesses produced both by DMV and appellant. We do not suggest that it was beyond the discretion of the ALJ to credit Scorsolini's testimony, despite the lack of corroboration and the contradiction. The problem here is somewhat different. As we will further explicate hereafter, the credibility finding in favor of complainant made by the ALJ is, in our view, irremediably tainted by a skewed analysis of the evidence adduced at the contested-case hearing. The ALJ confused testimony given under oath by several of the key witnesses with their paraphrased, unsigned and unsworn interviews given to a State investigator. Other testimony was mischaracterized. Exculpatory evidence was ignored. Unjustified innuendoes, either unsupported or contradicted by the record, were indulged in. Office gossip took precedence over sworn testimony. While the review of the testimony by the Board on remand was somewhat more balanced, that testimony was not analyzed but merely summarized in its more inculpatory aspects, and no findings of fact were made thereon. In the end, after reciting the testimony, all that the Board did, in effect, was to accept the ALJ's credibility fi
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