IN THE MATTER OF KENNETH BOLTON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1457-10T2

A-1624-10T2

IN THE MATTERS OF KENNETH

BOLTON, ROBERT KNOBLOCK AND

MICHAEL LUBRANO, MERCER COUNTY.

_______________________________

February 4, 2013

Submitted January 24, 2013 - Decided

Before Judges Nugent and Haas.

On appeal from the Civil Service Commission, Docket Nos. 2008-349, 2008-910 and 2008-963.

Szaferman, Lakind, Blumstein & Blader, P.C., attorneys for appellant Robert Knoblock in A-1457-10 (Stuart A. Tucker, of counsel and on the brief).

Alterman & Associates, L.L.C., attorneys for appellants Kenneth Bolton and Michael Lubrano in A-1624-10 (Stuart J. Alterman, on the brief).

Arthur R. Sypek, Jr., Mercer County Counsel, attorney for respondent County of Mercer (Joi Lynne Ortiz, Assistant County Counsel, on the brief).

Jeffrey S. Chiesa, Attorney General, attorney for respondent Civil Service Commission (Todd A. Wigder, Deputy Attorney General, on the statement in lieu of brief).

PER CURIAM

In these back-to-back matters, which we now consolidate for disposition in a single opinion, Robert Knoblock and Michael Lubrano appeal from a final determination of the Civil Service Commission (Commission) terminating their employment as correction officers with the County of Mercer (County) on a charge of conduct unbecoming a public employee. Kenneth Bolton, another County correction officer, appeals from the Commission's final decision imposing a twenty-day suspension on a charge of violating rules regarding reporting injuries, abuse, or accidents involving inmates. In so ruling, the Commission adopted the findings of fact and credibility determinations made by the Administrative Law Judge (ALJ). We affirm.

I.

The following facts were adduced at the hearing under review. On April 1, 2006, Sergeant Lysczak had a confrontation with three inmates at the Mercer County Correctional Center (Center) and called a "Code 6," which means "that an officer needs assistance." Sgt. Lysczak sprayed the inmates with "Oleoresin Capsicum (OC) . . . to quell the disturbance." Knoblock, Lubrano, and Bolton, together with other correction officers, responded to the Code 6.

The three inmates, P.B., J.L., and C.P., were evacuated from the contaminated area and transported through the Center to the medical unit for treatment. P.B. and J.L. were later taken to the hospital.

The next day, two internal affairs officers, Lieutenant Phyllis Oliver and Investigator Edwin Rodriguez, began an investigation of the incident. Video surveillance cameras had recorded part of what occurred. Lt. Oliver and Inv. Rodriguez viewed the video on a digital video recorder (DVR), but they lacked the training necessary to make a copy of the video. As a result, after thirty days, the video was automatically deleted from the database and was not available at the hearing.

However, the two officers were able to print "still photographs" from the video, which depicted various officers involved with the three inmates. The video did not cover all areas of the Center through which the officers or the inmates passed during the incident. Neither the video nor the photographs show any of the officers "kicking, stomping or abusing an inmate."

However, the photographs depicted one of the inmates, P.B., being dragged by Bolton and Officer Kinacki. Bolton had the inmate "by the pants leg" and Officer Kinacki was "holding the inmate's jumpsuit collar." At one point, P.B. was on the first step of the stairs "with his back leaning on the second step and his foot up in the air." Another photograph shows Bolton trying to hold a door open for Officer Kinacki while holding P.B.'s left leg.

Inv. Rodriguez next talked to Sgt. Lysczak, who stated the "inmates had acted out and had to be sprayed with OC spray, which is like mace." Inv. Rodriguez then interviewed the three inmates. The inmates stated they were upset because they were not given "time out of their cell" and they began to bang on the cell door to get out. They claimed Sgt. Lysczak then sprayed them with OC.

P.B. told Inv. Rodriguez that, when the other officers arrived, he was taken out of the cell, "placed in mechanical restraints[,]" and "dragged, pulled by his jumpsuit, and that he had been hit over the head and had head injuries, bumps and bruises." P.B. was treated at the hospital for a scalp wound and lacerations. He provided written statements to Inv. Rodriguez and the Mercer County Prosecutor's Office that were consistent with this account.

J.L. gave similar oral and written statements. He said he was hit in the head with a radio by Sgt. Lysczak. After he was taken out of the cell, J.L. stated he was assaulted by other officers, including Knoblock. The officers threw him into a wall and punched and kicked him. J.L. did not specifically identify Lubrano as one of the officers who assaulted him. He was unsure of the name of at least one of the officers who participated in the attack. After he was evaluated in the medical unit and was being escorted to where he could be transported to the hospital, J.L. stated the officers assaulted him again. He asserted the officers were aware of where the surveillance cameras were and picked locations for the assaults where cameras were not located. J.L. was treated at the hospital for a head wound and facial lacerations.

The third inmate, C.P. provided a similar account, although he could not identify the officers who assaulted him. He stated he saw J.L. being assaulted by Knoblock and Sgt. Lysczak.

Inv. Rodriguez reviewed the reports filed by the officers concerning the incident. Bolton's report of what occurred on April 1, 2006 was one-paragraph in length and stated:

When this Ofc arrived to the Code 6 with other responding Ofc's I/M [P.B.] was already restrained. The Code 6 was called because [P.B.] threw water on Sgt. Lysczak. [P.B.] was taken to medical and treated. When he was cleared we took him to R&D and prepped him for a hospital trip without further incident.

Other than Sgt. Lysczak, no correction officers were interviewed as part of the investigation. However, Inv. Rodriguez did speak to Officer Frank Paal because he had not received a report from him. Officer Paal told Inv. Rodriguez that he had filed a report on the day of the incident. However, that report was never located. Officer Paal then provided a written report to Inv. Rodriguez on April 27, 2006. He also provided a statement to the prosecutor's office.

Following the completion of the internal affairs investigation, the County charged fourteen correction officers with various infractions. Bolton, Knoblock and Lubrano were each charged with conduct unbecoming a public employee and with other violations of the County's rules regarding safety and security, reporting injuries, abuse or accidents involving inmates, intentional abuse or misuse of authority or position, and inappropriate physical contact or mistreatment of inmates. The County proposed to remove all three officers from employment.

At the hearing, Officer Paal testified he was one of the officers who responded to the Code 6. When he arrived, J.L. was already in the doorway of the cell and Officer Paal told him to get up against the wall. Sgt. Lysczak then struck J.L. in the head with his radio. J.L. was not resisting at that time. Officer Paal began leading J.L. through "the A36 door" toward the medical unit because the inmate was injured and had been sprayed with OC. By that time, Knoblock and Lubrano were with him, together with Officer Otterbre.

Once they got to the steps that go up to the "the A35 door," Officer Paal stated that the three other officers began to "kick and stomp" J.L., who was handcuffed and on the floor. Another officer, Sergeant Hopkins, warned "cameras, cameras, cameras." At that point, Knoblock and Lubrano got J.L. to his feet and they escorted him into the hallway, where the cameras were located, and took him to the medical unit.

After J.L. was showered and given a clean uniform, Officer Paal testified he, Knoblock, Lubrano, and Sgt. Lysczak walked J.L. toward the "receiving and discharge" (R & D) area. After they went through "the A102 door" and were outside the range of surveillance cameras, Officer Paal testified Sgt. Lysczak said he wanted "the inmate introduced to the walls." The door was then locked and Knoblock and Lubrano pinned J.L. to the wall and struck him in the ribs and head. Officer Paal then received a call to report back to the unit and he left the area at that time.

Captain Richard Beardon testified that Bolton had used excessive force by dragging P.B., who was handcuffed. When an inmate is dragged under those circumstances, there is a risk of injury in the form of "positional asphyxia," which is "restricted breathing." The fact that the inmate had been sprayed with OC increased this risk. Instead of dragging the inmate, Captain Beardon opined that the officers should have used "a fireman's carry" with one officer under each of the inmate's arms. With regard to Officer Paal's account of Knoblock and Lubrano's assaults on J.L., Captain Beardon stated that the physical abuse of an inmate is plainly prohibited.

Thomas O'Donnell, a retired lieutenant who previously worked at the Center, testified as an expert for the defense. He stated there was nothing improper about the way Bolton had handled P.B. The inmate had been sprayed with OC and, to avoid exposure and contamination, an officer would not want to get too close to the inmate. Therefore, in O'Donnell's opinion, grabbing and dragging the inmate by his pants leg was a reasonable manner of getting him to the medical unit. Officer Kenneth Fitzpatrick testified he had witnessed an inmate being dragged by officers in the past and this was the "normal way" to handle an inmate who is not cooperative.

Sergeant Peter Lindenthal testified he responded to the Code 6, but could not get through the A35 door to assist. He saw Officer Paal and five other officers. He did not see any inmates being assaulted. Officers Matthew Tate Pinder, Brian Waters, Scott Kieffer, and Lawrence Lobue also responded to the emergency call and each testified he saw no inmates being assaulted. Officer Otterbre testified he and Knoblock had escorted one of the inmates and that Lubrano was not a part of his team. He did not recall Officer Paal being present. He did not see any officer assaulting an inmate.

Bolton testified he responded to the Code 6 and, when he arrived, he saw P.B. on his back. Officer Kinacki attempted to get P.B. to his feet, but he would not cooperate. Officer Kinacki dragged P.B. to the A36 door and he and Bolton then carried him to the medical unit. Bolton testified the inmate was carried, not dragged. He stated "no force" was used to control P.B., even though he also testified the inmate was "struggling a bit" at times.

Bolton found nothing unusual about this incident. He stated there were four or five incidents like this a month. About a year before, he had seen an inmate being dragged, but this did not happen frequently. Bolton testified he wrote his report at home and then turned it in.

Lubrano testified that, after the Code was called, he ran to the A35 door, which was closed. Other officers were also stuck at the door. He heard Sgt. Lysczak asking for assistance. When the door opened, he saw an inmate on the floor in restraints. He followed the other officers as they escorted the inmate to the medical unit. He did not see Officer Paal at any time and testified he was also never with Knoblock. He stated he did not strike J.L. and did not see any inmates being assaulted.

Finally, Knoblock testified he was among the officers waiting for the A35 door to open. He went to another door and was able to get into the area. He then assisted Officer Otterbre in escorting one of the inmates to the medical unit. Knoblock testified he did not see Officer Paal during the incident and that Lubrano was not near him. He stated he did not assist in escorting J.L. to the R & D area after he was done in the medical unit.

Knoblock claimed Officer Paal told him after the incident that "[n]ow is my time to get that asshole," meaning Sgt. Lysczak. He asserted Officer Paal was upset at Sgt. Lysczak for making jokes about his hairpiece. Knoblock testified he saw Officer Paal write, but then tear up, a report before filling out another one. Knoblock testified he had not assaulted J.L. and he did not see any other officers attack an inmate.

II.

Following a ten-day hearing, the ALJ issued an initial decision. Based upon her review of the testimony presented and the documentary evidence, the ALJ found the County had not proven that Bolton had engaged in conduct unbecoming an employee in the manner in which he transported P.B. to the medical unit. The ALJ found the photographs showed the inmate did make contact with the ground, but only at the point where the two officers were attempting to carry him through a door. The ALJ found the dispersal of the OC spray caused an emergency situation and that the Center did not have a "clear policy prohibiting the method of transport Bolton used" under those circumstances. Thus, the ALJ concluded the County had not met its burden of proof on this charge.

However, the ALJ found that Bolton's one-paragraph report of the incident was insufficient. While Bolton did file a report, it did not set forth any of the details of how the officers carried P.B., P.B.'s condition during the transport, or whether anything P.B. did contributed to the officers' decision to carry him in the manner they did, rather than using a fireman's carry. Accordingly, the ALJ concluded that Bolton had failed to file an adequate written report. She recommended that, rather than the removal penalty sought by the County, a five-day suspension was appropriate.

The ALJ upheld the conduct unbecoming a public employee charges against both Knoblock and Lubrano. In so ruling, the ALJ found that Officer Paal's account of what transpired was the most credible. While Officer Paal was "foggy" on some facts, the ALJ found he had "no reason . . . to make up the testimony, especially in such detail." Officer Paal's account, the ALJ found, was consistent with and corroborated by J.L.'s statements to internal affairs and the prosecutor's office. The ALJ noted "[i]t would be more unbelievable that Paal could fabricate testimony and have it in sync with the statement of inmate J.L." In this regard, there was no evidence that the officer was aware of the content of J.L.'s statements "or even told . . . about them."

"Balancing the credibility of the witnesses," the ALJ found that Officer Paal's testimony that Knoblock and Lubrano had assaulted J.L. twice, before and after he was treated in the medical unit, was the credible account of what had occurred. Accordingly, she upheld the conduct unbecoming charges against both officers and recommended that they each be removed from employment. Both parties filed exceptions.

Following a de novo review of the record, the Commission adopted the ALJ's findings of fact. Taking into account the ALJ's opportunity to see and hear the witnesses as they testified, the Commission deferred to her credibility findings, which it found were fully explained and supported by the record.

With regard to Knoblock and Lubrano, the Commission agreed with the ALJ that removal was the only appropriate penalty, remarking that "[u]nwarranted abuse of inmates, such as is described in this case, simply cannot be tolerated in the prison setting." However, the Commission did not agree with the ALJ that Bolton should only receive a five-day suspension for the insufficient report he had filed. The Commission found "that Bolton's report was lacking, in that it made no mention of the need to carry P.B., or of the difficulty he encountered in doing so." Bolton had previously been issued a two-day suspension as the result of a minor disciplinary action. In addition, the Commission found "[t]he importance of providing full, accurate and detailed reports of such incidents cannot be understated." Therefore, the Commission imposed a twenty-day suspension upon Bolton.1

This appeal followed.

III.

Established precedents guide our task on appeal. Appellate review of an administrative agency decision is limited. In re Herrmann, 192 N.J. 19, 27 (2007). A strong presumption of reasonableness attaches to the Commission's decision. In re Carroll, 339 N.J. Super. 429, 437 (App. Div.), certif. denied, 170 N.J. 85 (2001). Appellants have the burden to demonstrate grounds for reversal. McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 563 (App. Div. 2002); see also Bowden v. Bayside State Prison, 268 N.J. Super. 301, 304 (App. Div. 1993) (holding that "[t]he burden of showing the agency's action was arbitrary, unreasonable, or capricious rests upon the appellant"), certif. denied, 135 N.J. 469 (1994).

Appellate courts generally defer to final agency actions, only "reversing those actions if they are 'arbitrary, capricious or unreasonable or [if the action] is not supported by substantial credible evidence in the record as a whole.'" N.J. Soc'y for the Prev. of Cruelty to Animals v. N.J. Dep't of Agric., 196 N.J. 366, 384-85 (2008) (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980) (alteration in original)). Under the arbitrary, capricious, and unreasonable standard, our scope of review is guided by three major inquiries: (l) whether the agency's decision conforms with relevant law; (2) whether the decision is supported by substantial credible evidence in the record; and (3) whether in applying the law to the facts, the administrative agency clearly erred in reaching its conclusion. In re Stallworth, 208 N.J. 182, 194 (2011).

When an agency decision satisfies such criteria, we accord substantial deference to the agency's fact-finding and legal conclusions, acknowledging the agency's "'expertise and superior knowledge of a particular field.'" Circus Liquors, Inc. v. Middletown Twp., 199 N.J. 1, 10 (2009)(quoting Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992)). We will not substitute our judgment for the agency's even though we might have reached a different conclusion. Stallworth, supra, 208 N.J. at 194; see also In re Taylor, 158 N.J. 644, 656 (1999) (discussing the narrow appellate standard of review for administrative matters).

With those principles in mind, we first turn to Knoblock and Lubrano's assertion that the Commission erred in upholding the charge of conduct unbecoming a public employee. They argue the Commission should have rejected the testimony of Officer Paal. They allege the officer's testimony differed from their testimony and the testimony of the witnesses who testified on their behalf. They also assert the officer's testimony was inconsistent with the statements provided by inmate J.L. and, alternatively, that the ALJ should not have considered the inmate's statement because it was hearsay. Finally, Knoblock and Lubrano contend the Commission should have found that Officer Paal was not credible because, in other judicial and administrative proceedings involving other officers, judges have found that his testimony was not credible. We reject these contentions.

It is well established that an appellate court may not "engage in an independent assessment of the evidence as if it were the court of first instance." State v. Locurto, 157 N.J. 463, 471 (1999). We must give "'due regard to the opportunity of the one who heard the witnesses to judge of their credibility.'" Taylor, supra, 158 N.J. at 659 (quoting Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 587 (1988)).

Here, the ALJ found that, among all the witnesses who testified, Officer Paal's account was the most credible. The ALJ made specific findings about the officer's credibility. For example, she found that the officer had no motivation "to make up [his] testimony, especially in such detail." In addition, she found that the officer's statement to Rodriquez was consistent with the statement provided by J.L., even though there was no testimony that Rodriguez had ever showed Officer Paal the inmate's statement.

Contrary to Knoblock and Lubrano's contentions, the ALJ did not "blindly accept" Officer Paal's account. She pointed out that the officer was "clear on some facts, but foggy on others" and that he had confused several of the officers in his testimony and was not sure where he had been standing when he witnessed the attack on J.L. However, the ALJ explained that the minor inconsistencies in this portion of Officer Paal's testimony were due to the officers being of the same build and wearing similar uniforms, together with the passage of time.

The ALJ also found that Officer Paal's testimony was more credible than that of the other officers. For example, she specifically found that Knoblock's claim that Officer Paal told him that he intended to file false charges against Sgt. Lysczak because "[n]ow is my time to get that asshole," to be "unworthy of belief and self-serving." The ALJ also found that Knoblock and Lubrano's claims that they had not seen Officer Paal during the incident were not credible because the photographs show that he was clearly present at that time.

An ALJ's credibility findings "'are often influenced by matters such as observations of the character and demeanor of witnesses and common human experience that are not transmitted by the record.'" Taylor, supra, 158 N.J. at 660 (quoting Locurto, supra, 157 N.J. at 474). Here, the ALJ's credibility findings are amply supported by the record. The Commission properly deferred to them.

Lubrano argues he is not specifically named in J.L.'s written statements and, therefore, he should not have been found guilty of the charge of assaulting the inmate. However, Officer Paal clearly identified Lubrano as one of the officers who attacked J.L. and the ALJ found this account to be credible Moreover, J.L. indicated in both of his statements that other officers, who he could not identify, were involved. Therefore, Lubrano's argument lacks merit.

Knoblock and Lubrano next contend the ALJ should not have considered J.L.'s statements because they were hearsay. We disagree. Hearsay is admissible in an administrative hearing and "may be employed to corroborate competent proof, or competent proof may be supported or given added probative force by hearsay testimony." Weston v. State, 60 N.J. 36, 51 (1972). Here, J.L.'s hearsay statements were used to corroborate Officer Paal's testimony at the hearing. Thus, there was plainly "a residuum of legal and competent evidence in the record" to support the ALJ's finding, based in part on J.L.'s statements, that Officer Paal's account was credible. Ibid.

Knoblock and Lubrano also argue that judges in other administrative and judicial matters involving some of the other officers who were charged have found Officer Paal to be "less than credible." Therefore, they assert the ALJ erred in failing to do the same. This argument lacks merit.

In this case, the ALJ's credibility findings were well supported by the record. Taylor, supra. More importantly, however, Knoblock and Lubrano did not raise this contention before the ALJ. Indeed, none of the transcripts of the matters upon which they rely were submitted to the ALJ during the hearing. Instead, appellants submitted this material for the first time in their exceptions to the ALJ's initial decision. N.J.A.C. 1:1-18.4(c) clearly prohibits a party from presenting any evidence not presented at the hearing as part of an exception. Therefore, this material was not part of the administrative record and it was not properly before either the ALJ or the Commission. Thus, it may not be considered on appeal. Nieder v. Royal Indem. Ins. Co., 62 N.J.229, 234 (1973)(an appellate court will ordinarily not consider issues not presented at trial).

Knoblock and Lubrano also assert there is no video of them assaulting J.L. and the County produced no photographs depicting the alleged assault. However, Officer Paal explained the officers were well aware where the video cameras were located and that they waited until they were out of sight of the cameras before striking J.L. Thus, there was sufficient credible evidence in the record to support the Commission's rejection of this contention.

Bolton contends the report he filed was not insufficient. However, the Commission found the report "made no mention of the need to carry P.B., or of the difficulty [Bolton] encountered in doing so." Instead, the report merely stated that the inmate "was taken to medical and treated." No explanation was even provided as to why such treatment was necessary. Under the circumstances, the report was plainly insufficient and the Commission properly sustained this charge.

In sum, appellants have not demonstrated that the Commission's decision is arbitrary, capricious or unreasonable. The decision is fully supported by the record and appropriately defers to the ALJ's express credibility findings. Thus, as the Commission's final decision is not "clearly . . . mistaken" or "plainly unwarranted[,]" Clowes, supra, 109 N.J.at 588 (citing State v. Johnson, 42 N.J.146, 162 (1964)), we discern no basis to second-guess it.

IV.

Appellants each challenge the Commission's decision as to the penalties imposed upon them. First, Knoblock and Lubrano argue that they should not have been removed from employment. We disagree.

With regard to employee discipline, the Supreme Court has directed that "courts should take care not to substitute their own views of whether a particular penalty is correct for those of the body charged with making that decision." In re Carter, 191 N.J. 474, 486 (2007). Thus, our deference to agency decisions "applies to the review of disciplinary sanctions as well." Herrmann, supra, 192 N.J. at 28. "In light of the deference owed to such determinations, when reviewing administrative sanctions, the test . . . is whether such punishment is so disproportionate to the offense, in light of all the circumstances, as to be shocking to one's sense of fairness." Id. at 28-29 (internal quotation marks omitted). "The threshold of 'shocking' the court's sense of fairness is a difficult one, not met whenever the court would have reached a different result." Id. at 29.

Moreover, maintaining discipline and order over both inmates and employees is critical to properly operate prison facilities. Bowden, supra, 268 N.J. Super. at 305-306. "The appraisal of the seriousness of [a correction officer's] offense and degree to which such offenses subvert discipline at [a correctional facility] are matters peculiarly within the expertise of the corrections officials." Id. at 306.

In sustaining the County's decision to remove Knoblock and Lubrano, the Commission concluded that "[u]nwarranted abuse of inmates, such as is described in this case, simply cannot be tolerated in the prison setting." Knoblock and Lubrano's removal from their public positions as corrections officers as a result of their conduct does not shock our sense of fairness.

Similarly, we discern no basis to disturb the Commission's decision to impose a twenty-day suspension upon Bolton. In determining this sanction, the Commission "emphasize[d] that [Bolton], a law enforcement officer, failed to fully report his involvement in the Code 6" on April 1, 2006[,]" and noted that "[t]he importance of providing full, accurate and detailed reports of such incidents cannot be understated." Bolton also had a prior minor disciplinary action, which involved a two-day suspension. Under these circumstances, the suspension was a fair one.

Finally, Bolton argues that, because the penalty proposed by the County was modified from removal to a twenty-day suspension, he is entitled to counsel fees. We disagree.

N.J.A.C. 4A:2-2.12(a) provides that the Commission "shall award partial or full reasonable counsel fees incurred in proceedings before it . . . where an employee has prevailed on all or substantially all of the primary issues before the Commission." The primary issue in a disciplinary appeal is the merits of the charges; merely because a penalty is reduced does not render an employee a prevailing party under this regulation. See Walcott v. City of Plainfield, 282 N.J. Super. 121, 128 (App. Div. 1995).

In this case, although the Commission affirmed the dismissal of the charge involving the "inappropriate dragging of P.B.[,]" it sustained the insufficient report charge, which was one of the two main charges against Bolton. A major disciplinary sanction of a twenty-day suspension was imposed. Thus, the Commission properly concluded Bolton was not entitled to counsel fees because he had not prevailed on all or substantially all of the primary issues in this matter. N.J.A.C. 4A:2-2.12(a).

1 The Commission sustained the ALJ's finding that the County had not proven the conduct unbecoming charge against Bolton. Because he was able to return to employment, the Commission ordered that Bolton was entitled to mitigated back pay, benefits and seniority for the period following his twenty-day suspension to the date of his actual reinstatement as a correction officer. The Commission denied Bolton's request for counsel fees.