IN THE MATTER OF ALONZO CUMBERLANDER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2567-11T4

IN THE MATTER OF ALONZO

CUMBERLANDER, NORTHERN STATE

PRISON.

______________________________

June 12, 2013

Submitted June 5, 2013 Decided

Before Judges Sapp-Peterson and Haas.

On appeal from the Civil Service Commission, Docket No. 2011-3635.

Saluti Law Group, attorneys for appellant

Alonzo Cumberlander (Gerald M. Saluti, on the brief).

Jeffrey S. Chiesa, Attorney General, attorney for respondent Department of Corrections (Melissa H. Raksa, Assistant Attorney General, of counsel; Brandon Hawkins, Deputy Attorney General, on the brief).

PER CURIAM

Alonzo Cumberlander appeals from a December 7, 2011 final determination of the Civil Service Commission (Commission) terminating his employment with the State Department of Corrections (DOC). The Commission adopted the findings of fact of the Administrative Law Judge (ALJ) upholding the charges of conduct unbecoming a public employee and undue familiarity with an inmate and the penalty of removal sought by the DOC. On appeal, Cumberlander does not dispute the fact that he committed the violations charged. His appeal is limited to an argument that the Commission erred in removing him from his position as a Senior Correction Officer at Northern State Prison. We disagree and affirm.

There is no dispute as to the material facts developed at the hearing before the ALJ. On February 1, 2011, Administrator Lagana, Lieutenant Daye, and Assistant Superintendent Nogan observed Cumberlander eating a plate of rice and beans at his post. Lagana questioned Cumberlander about the food and he admitted he had received the meal from an inmate, who had cooked it in his cell. Cumberlander also admitted receiving food from inmates on other occasions in the past. Lagana immediately relieved Cumberlander from his post and this disciplinary action followed.

Cumberlander testified and admitted he had accepted the food from the inmate, but claimed "he did not think it was inappropriate[.]" He acknowledged he had been "instructed that he was not allowed to accept anything of value or any gifts from inmates[.]" However, he "did not consider food supplied by an inmate cooked in a cell to be a violation because it had little to no value."

The ALJ found the DOC had established the charges against Cumberlander and that his conduct fully warranted his removal from employment. Relying upon several DOC directives to its employees and the employee handbook, the ALJ found "it is undoubtedly clear that Correction Officers should not place themselves in a position of showing any favoritism toward specific inmates nor should they accept favors or do favors for inmates for it leads to the potential of discord and perhaps worse consequences."

The ALJ found "Cumberlander's contention that he did not believe that taking food cooked in a cell by [an inmate] was prohibited is far from a credible contention." The ALJ further found Cumberlander's claim that the food did "not have value" and, therefore, could not be considered a gift, was "at best pretextual and defies common sense." The ALJ stated:

As pointed out by the witnesses testifying on behalf of [DOC], the consumption of food prepared by [an inmate] in plain view of all the other inmates would undoubtedly give those inmates the impression that the inmate who supplied the food may in some way get preferential treatment in return. Although that may not be the bargaining chip at the time of the receipt of the food, it was clear that since Cumberlander had discretionary authority to determine which cells may or may not be searched, that this type of subtle influence is exactly the type of conduct that is prohibited. For Cumberlander not to recognize the potential negative perception of his action leads to the conclusion that despite all his exposure to rules and regulations and training at the Academy, his lack of common sense is ultimately a danger to the institution and his fellow Correction Officers.

The ALJ further concluded that the penalty of removal was appropriate. Cumberlander had twice been suspended for three days as a result of attendance violations. He was also suspended for forty-five days1 for abandoning his position and had very recently been suspended for 120 days "for carrying a weapon when unauthorized and improperly securing it in a hotel room." In determining to remove Cumberlander from his position, the ALJ explained:

Although there was some indication by the witnesses testifying on behalf of [DOC] that there exists a no tolerance policy for violations of the nature charged herein by Cumberlander, it is without doubt, even in the absence of a no tolerance policy, the point of no return for Cumberlander. His prior disciplinary history reflects a progressive discipline which, given the facts and circumstances of this matter, should lead to a termination.

Cumberlander did not file any exceptions to the ALJ's Initial Decision. On December 7, 2011, the Commission adopted the ALJ's findings and removed Cumberlander from employment. This appeal followed.

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).

Cumberlander's contentions on appeal are limited to his claim that the penalty of removal was too harsh under the circumstances of this case. He alleges the penalty "does not comport with the principle of progressive discipline" and that the Commission's decision was flawed because the ALJ mistakenly stated he had previously been suspended for ninety days for abandoning his position, instead of the actual forty-five-day suspension he received. Cumberlander also asserts the Commission should not have considered his 120-day suspension because it was not final at the time of his hearing. 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 305-06. "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.

Here, Cumberlander admitted he accepted food from an inmate on February 1, 2011 and that he had also done this in the past. He was fully aware he could not receive gifts from inmates and the ALJ found that Cumberlander's excuses for his misconduct were pretextual, not credible, and "defie[d] common sense." Fraternization of this type with inmates is strictly forbidden in a prison setting because it leads to allegations of favorable treatment for the inmates involved and poses a serious danger to correction officers and other inmates.

Even if this violation was not one for which DOC has properly established "a no tolerance policy," Cumberlander's serious prior discipline record fully supported the Commission's decision to remove him from employment. The concept of "progressive discipline" has long been utilized when determining the appropriate penalties for the misconduct of public employees. Herrmann, supra, 192 N.J. at 29-30. That is, an employee s "past record[,]" including the reasonably recent history of promotions, commendations, and formally or informally adjudicated disciplinary actions "may be resorted to for guidance in determining the appropriate penalty for the current specific offense." West New York v. Bock, 38 N.J. 500, 523-24 (1962). Under this system, an employee's past record can support the imposition of a more severe penalty, or, conversely, can be used to mitigate the penalty of a present offense. Herrmann, supra, 192 N.J. at 30-33.

Cumberlander's performance had been steadily declining. He had been suspended for three days on two separate occasions for absenteeism. He had also received a forty-five-day suspension for abandoning his position and a subsequent 120-day suspension for "for carrying a weapon when unauthorized and improperly securing it in a hotel room." Clearly, these suspensions did not deter Cumberlander from continuing to violate DOC's employment polices. Thus, the Commission's decision to remove him from employment was not arbitrary, capricious or unreasonable under the circumstances of this case.

Cumberlander argues he should not be removed because the ALJ incorrectly stated he had received a ninety-day suspension for abandoning his position. However, the Commissioner noted this error in its decision and based its determination to remove Cumberlander solely upon the actual prior penalties he had received. Cumberlander also contends the Commission should not have considered the 120-day suspension he received because, at the time of the hearing before the ALJ, the Commission had not yet approved that penalty. Again, this argument ignores the fact that, by the time of the Commission's December 7, 2011 decision in this case, it had approved the 120-day suspension in a decision issued on August 17, 2011. In light of his extensive prior disciplinary record, Cumberlander's removal from his public position as a senior correction officer does not shock our sense of fairness.

Affirmed.

1 The ALJ's opinion incorrectly states Cumberlander received a ninety-day suspension for this offense.