IN THE MATTER OF JUAN MELENDEZ

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4617-07T14617-07T1

IN THE MATTER OF

JUAN MELENDEZ

_______________________________

 

Argued June 30, 2009 - Decided

Before Judges Stern and Parker.

On appeal from a Final Administrative Decision of the New Jersey Merit System Board, DOP Docket No. 2007-826.

John P. Nulty, Jr., argued the cause for appellant Juan Melendez (Cammarata, Nulty & Garrigan, attorneys; Mr. Nulty, on the brief).

Cindy Nan Vogelman argued the cause for respondent County of Hudson (Chasan Leyner & Lamparello, attorneys; Ms. Vogelman and Maria P. Vallejo, on the brief).

Anne Milgram, Attorney General, attorney for

respondent Merit System Board (Andrea R. Grundfest, Deputy Attorney General, on the statement in lieu of brief).

PER CURIAM

Juan Melendez, a Hudson County Corrections Officer, appeals from a final administrative determination of the Merit System Board (MSB) imposing a fifteen-day suspension for neglect of duty and other sufficient cause warranting discipline, N.J.A.C. 4A:2-2.3(a)(7)(11). The MSB adopted the initial determination of an Administrative Law Judge on a remand following his first determination that the suspension should only be for three days following Hudson County's suspension of thirty days. On this appeal Melendez argues that

POINT I. The decision of the Merit System Board upholding the charges of neglect of duty and other sufficient cause is not supported by credible evidence in the record.

POINT II. The penalty of a fifteen day suspension is at odds with the concept of progressive discipline and appellant's disciplinary history.

POINT III. Appellant is entitled to attorney's fees based on having prevailed on all or substantially all of the primary issues.

In essence, appellant seeks reversal of "all charges against him and [the award] of back pay and attorney's fees."

The testimony before the ALJ revealed that Sgt. Kevin Orlik reported, and testified, that appellant was asleep at his post in a trailer annexed to the jail on March 19, 2006 when Orlik and other officers arrived to conduct a search of the cells. In his testimony Orlik testified that when he entered the trailer he "saw Officer Melendez reclined back in a chair with a roll of toilet paper as a pillow or a cushion behind his neck," "his eyes were closed," and he was "motionless" as he was observed "for approximately a minute to two minutes" until other officers entered the trailer and started to make noise. Appellant testified that he wasn't sleeping and told that to Orlik when he directed appellant "to write a report on why [he] was sleeping." Appellant challenged Orlik's credibility by noting that his written report omitted details embodied in his testimony, a fact that was acknowledged by Orlik. There was also testimony from Orlik and Hudson County Corrections Officer Captain William McCleary as well as appellant about the practice of standing when a superior officer enters the room. Appellant did not do so on the night in question, and testified that it wasn't a "regular routine" and he generally did not do so. Although the failure to stand was not itself a basis for discipline it was determined to be relevant to the issue of "attentiveness" at the time, as well as to the ALJ's finding that the inattentive conduct was a "sufficient cause" for the three-day suspension he initially imposed.

On the remand, despite making credibility determinations against Orlik because of the failure to include certain details in his written report, the ALJ found neglect of duty and "other sufficient cause" for the discipline, and found that "the "failure to stand and acknowledge Sgt. Orlik when he entered the trailer to constitute being inattentive."

In its opinion, the MSB agreed with appellant that "his failure to stand was not a specific infraction or charge," but concluded that it constituted "evidence that he was inattentive, which he was charged with," and "[i]t was the appellant's inattentiveness that constituted his neglect of duty as it could have resulted in harm to the inmates."

We must affirm the agency's determination when supported by sufficient evidence in the record. In re Herrmann, 192 N.J. 19, 27-29 (2007); Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992); Henry v. Rahway State Prison, 81 N.J. 571, 580 (1980). As we have said in the context of prison discipline:

Our role on review is limited. Our function is to determine whether the administrative action was arbitrary, capricious or unreasonable. We will only decide whether the findings could reasonably have been reached on the credible evidence in the record, considering the proofs as a whole. We cannot substitute our judgment for that of the agency. We accord to the agency's exercise of its statutorily delegated responsibilities a strong presumption of reasonableness. The burden of showing the agency's action was arbitrary, unreasonable upon capricious rests on the appellant.

[Bowden v. Bayside State Prison, 268 N.J. Super. 301, 304 (App. Div. 1993), certif. denied, 135 N.J. 469 (1994) (citations omitted).]

In Bowden, we reversed the MSB's reduction of discipline of a corrections officer who had been removed from office. We stated that "[t]he need for proper control over the conduct of inmates in a correctional facility and the part played by proper relationships between those who are required to maintain order and enforce discipline and the inmates cannot be doubted." Id. at 305-06. Thus, "[t]he appraisal of the seriousness of [the officer's] offense and degree to which such offenses subvert discipline [at the correctional facility] are matters peculiarly within the expertise of the corrections officials." Id. at 306. In the absence of a cross appeal in this case, we cannot reinstate the discipline originally imposed, but in the prison setting we cannot in any event find the MSB's findings and discipline to be arbitrary, capricious or unreasonable.

We emphasize that we agree with appellant that the failure to stand when Orlik entered the trailer was neither a basis for the disciplinary charges nor can be a basis by itself for disciplinary action. However, it could be considered by the MSB to be part of the overall neglect of the circumstances by appellant. His response to the entry of a superior officer was relevant to whether he was paying proper attention and was sufficiently attentive to his circumstances. While it may not be a specific violation for not standing when a superior officer entered the trailer, we cannot disagree with the MSB that the subject related to appellant's "inattentiveness," and "[i]t was the appellant's inattentiveness that constituted his neglect of duty as it could have resulted in harm to the inmates." Appellant's own testimony reveals that, irrespective of the reason, he neither stood, spoke to nor acknowledged Orlik when Orlik entered the trailer.

Appellant also contends that he served for over eight months without any significant or major disciplinary infraction, but we cannot state that that would prohibit the reduced fifteen-day suspension based on the concept of progressive discipline. The MSB expressly recognized that doctrine and has expertise in knowing discipline imposed for various and similar infractions. We cannot consider the discipline imposed to be "shocking to one's sense of fairness," which does not result merely because "the court would have reached a different result." Herrmann, supra,, 192 N.J. at 28-29.

Nor did the MSB abuse its discretion in determining that appellant did not prevail on "substantially all of the primary issues" before the MSB, thereby denying appellant counsel fees. N.J.A.C. 4A:2-2.12. As some of the charges were sustained and a fifteen-day suspension was imposed on the MSB's de novo review, we agree with the MSB's interpretation of its own regulation that appellant was not entitled to counsel fees notwithstanding the reduction of fifteen days of the suspension. See N.J.A.C. 4A:2-2.12.

 
The final administrative determination of the Merit System Board is affirmed.

The charges of insubordination and conduct unbecoming an officer were not sustained.

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A-4617-07T1

August 17, 2009