In re Herrmann

• Decision Date: 16 July 2007
• Docket Number: A-77 September Term 2006
• Citation: 192 N.J. 19,926 A.2d 350
• Parties: In the Matter of Tammy HERRMANN.
• Court: New Jersey Supreme Court

926 A.2d 350

192 N.J. 19

In the Matter of Tammy HERRMANN.

A-77 September Term 2006

Supreme Court of New Jersey.

Argued April 5, 2007.

Decided July 16, 2007.

Lewis A. Scheindlin, Assistant Attorney General, argued the cause for appellants, New Jersey Division of Youth and Family Services and New Jersey Department of Personnel (Stuart Rabner, Attorney General of New Jersey, attorney; Michael J. Haas, Assistant Attorney General, of counsel).

Daniel P. McNerney, Hackensack, argued the cause for respondent, Tammy Herrmann (McNerney & McAuliffe, attorneys).

Justice LAVECCHIA delivered the opinion of the Court.

Family Services Specialist trainee Tammy Herrmann was charged by her employer, the Division of Youth and Family Services (DYFS), with conduct unbecoming a public employee based on her actions during an investigation into an allegation of child abuse. DYFS sought to terminate her employment. Following a hearing before an administrative law judge (ALJ) in which the charge and penalty were sustained, the Merit System Board (MSB) affirmed Herrmann's dismissal. On appeal, however the Appellate Division reversed the dismissal sanction. In re Tammy Herrmann, 387 N.J.Super. 450, 459, 904 A.2d 764 (2006). The panel determined that the principle of progressive discipline had vibrancy in this setting and ordered that some lesser penalty than termination be considered on remand. Ibid. We granted the petition for certification filed on behalf of DYFS and the Department of Personnel, 189 N.J. 104, 912 A.2d 1264 (2006), and now reverse and reinstate the penalty imposed by the MSB. Because termination was supported by the record and was neither illegal nor an unreasonable exercise of the MSB's broad discretion, see N.J.S.A. 11A:2-6, we defer to the agency head's penalty determination. The Appellate Division impermissibly substituted its judgment concerning the proper penalty to be applied and thereby exceeded its authority.

I.

Only the quantum of punishment, and not the sufficiency of the evidence in support of the disciplinary charge, is in issue in this appeal. Therefore, we recite the background evidence to the charge as credited by the ALJ and affirmed by the MSB.

DYFS hired Tammy Herrmann in February 2001 as a Family Services Specialist trainee. In August 2001, when she was no longer in her probationary period, she was assigned to interview the M. family regarding an allegation of child abuse.

Mr. and Mrs. M. have six adopted children, four of whom were under the age of eighteen at the time that Herrmann was assigned to look into the abuse referral. Mr. and Mrs. M. also were foster parents to a medically fragile infant, Q.T., which brought the family in regular contact with DYFS. The referral to which Herrmann was assigned concerned the family's sixth and youngest adopted child, J.M. At the time, J.M., a special needs child, was five-and-a-half-years old. Earlier in August 2001, J.M. started a small fire in family's basement. Mrs. M. discovered the fire, extinguished it before any substantial damage resulted, and immediately telephoned her husband to come home from work, which he did. That afternoon, Mr. M. took J.M. to the local fire marshal for a fire safety lecture. Although the DYFS investigation to which Herrmann was assigned included inquiry into that fire incident, the referral came about as a result of an unrelated incident.

D.M. is a six-year-old, special needs girl who also was adopted by Mr. and Mrs. M D.M. overheard Mr. and Mrs. M. having an angry exchange with J.M. about the fire and told her summer camp counselors about it. She also told them that her father tied up J.M.¹ The manner in which D.M. described those events led to the referral to DYFS.

On August 6, 2001, Herrmann went to the M. home to meet with the family. According to Mrs. M., Herrmann interviewed her for forty-five minutes before stating the purpose of her visit. Once she informed Mrs. M. that there had been an allegation of abuse and that she intended to interview the children individually, Mrs. M. offered her bedroom, which was air-conditioned, as a comfortable place for conducting the interviews. Mrs. M. showed her the room, specifically drawing Herrmann's attention to the presence, in the closet, of oxygen equipment used to treat D.M.'s asthma and Q.T.'s medical conditions. Herrmann talked with each of the four children in the bedroom over the next several hours. Only when Herrmann was about to leave did J.M. finally admit that he started the fire.

Herrmann's interactions with J.M. lie at the heart of this disciplinary matter. The ALJ heard divergent accounts about it from the witnesses. In the end, the ALJ credited DYFS's witnesses as credible, consistent, and believable. Conversely, he did not find Herrmann's explanation to be credible or believable.

According to Herrmann, the exchange with J.M. took place in the hallway outside the parents' bedroom. Mrs. M. testified that she believed that J.M. and Herrmann spoke in the bedroom that contained the oxygen tanks. In respect of the substance of the exchange, Herrmann said that she asked the child what kind of lighter he used to start the fire. When he did not answer, she knelt in front of him, extracted a cigarette lighter from her purse, and held it in front of his face. She testified as follows in respect of the incident.

So I said, "Well, did you light it like"— and I went to show the difference between a ball and a lighter or a click-it.

Honestly, do I know if I meant to light it at that point? I don't know. But it lit. Okay? It definitely lit. And when he saw it he went to grab at it. He—you could tell he liked it. Even though I had been holding it a second prior, until it was lit he wasn't, you know, that into it.

In her notes documenting the contact with the family, Herrmann did not record waving the lighter near J.M.'s face, nor did she immediately tell her supervisor about it. Herrmann did report to Sheryl Stafford-Curl, her supervisor, that the children should be removed from the home. Ms. Stafford-Curl testified to being skeptical about that recommendation because Herrmann tended to advocate for removal frequently. Ms. Stafford-Curl asked Herrmann to collect more information, to have a fire assessment test of J.M. performed by DYFS's independent contractor for that service, and to have the M. family sign a case management plan that restricted Mr. M.'s discipline of the children.

Accordingly, Herrmann returned to the M. home with another case worker, Elizabeth Walters. During that meeting, Herrmann told Mr. and Mrs. M. about waving the lit cigarette lighter in front of J.M.'s face and informed them that J.M.'s "fascination" with the lighter indicated that he may have a propensity to start fires. When J.M.'s parents expressed alarm that the lighter could have ignited the oxygen tanks, Herrmann, in an apparent attempt to allay their concerns, informed them that she was familiar with oxygen tanks from her prior work as a pharmacy assistant. She also chastised the parents for not keeping oxygen notification magnets on the refrigerator.

Mrs. M. testified that she was left speechless when she heard about Herrmann's dangerous action of having an open flame in close proximity to oxygen equipment. However, although she was upset, Mrs. M. did not protest at the time because Herrmann was threatening to take her children away.² Mr. and Mrs. M. ultimately signed the case management plan that Herrmann had presented to them, but because they were distressed with DYFS's actions, they hired an attorney to challenge the plan. On the day that a hearing concerning the M. family's plan was scheduled to take place in Superior Court, a deputy attorney general (DAG) representing DYFS, and Herrmann's supervisor, Ms. Stafford-Curl, learned for the first time that Herrmann had waved a lit cigarette lighter in front of J.M.'s face. The newly revealed information was problematic to each, as they explained in their testimony.

Stafford-Curl testified that she was concerned because DYFS workers are not qualified by training or experience to conduct assessments of a child's propensity to start fires. She explained that DYFS standards require such tests to be performed by the qualified, independent contractor DYFS engaged specifically for that purpose. She also stated that she believed Herrmann's conduct, in attempting to perform an assessment of J.M. using a lit cigarette lighter, was inappropriate and dangerous due to the proximity of oxygen tanks.

The DAG set forth a different perspective, one that reflected the position of a litigator confronted with new information from her prospective witness. She expressed the view that Herrmann exhibited bad judgment by holding a lighter in front of the child's face, even if the presence of oxygen tanks were not considered to be a factor adding to the dangerousness of the action. That breach of judgment by the on-site case investigator tainted her ability to be a credible witness for DYFS in the agency's protective services case. The DAG concluded that she could not allow Herrmann to testify before the Superior Court in the M. family's hearing. She was concerned that by revealing the worker's inappropriate conduct to a Family Part judge, Herrmann's credibility as well as the credibility of DYFS workers generally would be threatened, the judge's overall opinion of DYFS's investigatory skills could be tainted, and the State's ability to obtain relief for other children might be undermined. Ultimately, the parties settled their dispute about the family's case management plan and a consent order was executed.

As a result of the cigarette lighter incident, Herrmann was served with a Preliminary Notice and then a Final Notice of Disciplinary Action seeking her termination for conduct unbecoming a public employee, pursuant to N.J.A.C. 4A:2-2.3(a)6. She appealed her removal and requested a hearing before the Office of Administrative Law.

Pursuant to...