IN THE MATTER OF ELIZABETH CHAPARRO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4277-10T4

IN THE MATTER OF ELIZABETH

CHAPARRO, DEPARTMENT OF

CORRECTIONS.

_____________________________

January 29, 2013

Argued January 22, 2013 Decided

Before Judges Parrillo and Fasciale.

On appeal from the New Jersey Civil Service Commission, Docket No. 2010-2386.

Maria C. Manganaro argued the cause for appellant Elizabeth Chaparro (Ms. Manganaro, attorney; Joseph A. Carmen, on the brief).

Todd A. Wigder, Deputy Attorney General, argued the cause for respondent New Jersey Civil Service Commission (Jeffrey S. Chiesa, Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Mr. Wigder, on the brief).

PER CURIAM

Petitioner Elizabeth Chaparro appeals from a March 18, 2011 final agency decision of the Civil Service Commission (CSC) imposing a ten-working-day suspension on her employment as a senior corrections officer with the South Woods State Prison (SWSP). We affirm.

On April 19, 2009, the Department of Corrections (DOC) served Chaparro with a preliminary notice of disciplinary action charging her with insubordination for failing to timely obtain an annual tuberculosis (PPD) test and for disobeying orders to take the test. On October 16, 2009, the DOC conducted a hearing and on January 5, 2010, the DOC served a final notice of disciplinary action on Chaparro suspending her for thirty days.

Chaparro appealed to the CSC, which transferred the appeal to the Office of Administrative Law. On October 15, 2010, an Administrative Law Judge (ALJ) conducted a hearing. The DOC presented testimony from Captain David Redman, who was in charge of SWSP,1 and Ronald J. DeMaio, the SWSP infection control nurse. Chaparro, a former member of the United States Naval Reserve, testified that she had been tested by the Navy in July 2008, which she felt sufficed for SWSP. She also testified that after learning of her pending suspension, she had the Navy test her on April 16, 2009.2 The ALJ issued an eleven-page written decision on November 12, 2010.

The ALJ found that SWSP issued a memorandum on December 18, 2008, to all personnel advising them that they were required to undergo PPD testing.3 He found that SWSP serviced "over 1,200 employees and over 3,000 inmates." Furthermore, the ALJ found that after learning that Chaparro failed to get tested, Redman issued a second memorandum dated February 3, 2009, instructing her to undergo testing by February 16, 2009.4 Chaparro did not comply. The ALJ further found that DeMaio spoke with Chaparro and informed her that her Navy testing was insufficient. The judge stated that Chaparro "conceded that she was aware that PPD testing was ongoing at [SWSP]." He found her assertion that she did not read the February 3, 2009 memorandum "unconvincing." In particular, the ALJ stated:

[Chaparro] admitted that she understood that she was required to undergo further testing, and that said testing was mandatory. In short, [Chaparro] understood that she was under order to undergo PPD testing, but failed to comply with that order. Her contention that she was "procrastinating," that is, delaying complying with the order, does not absolve her. She knew she was required to undergo additional PPD testing, and she failed to do so until threatened with termination. Unquestionably, she is guilty of insubordination. Accordingly, the action of [SWSP] sustaining the charge of other sufficient cause insubordination must be AFFIRMED.

He then reduced the original thirty day suspension to five days, based, in part, on her never having been suspended before. Chaparro then appealed to the CSC.

On March 18, 2011, the CSC issued a written final agency decision. The CSC adopted the ALJ's findings of fact, but it rejected the suspension modification. The CSC stated that "it is clear from the facts that [Chaparro] is guilty of insubordination"; she "clear[ly] . . . ignored the instructions given by a superior officer and did not get tested," and "chose to disobey the direct order given by her superior officer." The CSC upheld the charges. Regarding the suspension, the CSC stated:

Approximately nine months passed between [Chaparro's] last test and the time she finally chose to get re-tested. There was plenty of time to expose others to this highly contagious disease if [Chaparro] had contracted it. [Chaparro] expressly chose not to comply with a direct order. This is not a behavior that should be encouraged, especially in a paramilitary setting such as a prison. It is the choice to disregard a direct order that puts the other staff member[s] and the inmates in danger. Obedience of direct orders is a must in such a setting to be successful in maintaining order and stability. It is clear that [Chaparro's] choice to disobey a direct order is severe enough to warrant a major discipline. Accordingly, the [CSC] concludes that a [ten] working day suspension is warranted.[5]

On appeal, Chaparro argues that the CSC's decision should be reversed because it "is entirely unreasonable and a waste of resources to give the same person the exact same test during the same time period." We disagree and affirm substantially for the reasons expressed by the CSC in its March 18, 2011 final decision. We add the following brief comments.

Our review of an agency's final decision is limited. In re Taylor, 158 N.J. at 656 (quoting Clowes, supra, 109 N.J. at 587). We "defer to an agency's expertise and superior knowledge of a particular field," Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992), and uphold its decision "unless there is a clear showing that it is arbitrary, capricious, or unreasonable, or that it lacks fair support in the record," In re Herrmann, 192 N.J. 19, 27-28 (2007). Our review of the record reveals sufficient credible evidence to support the CSC's decision to affirm Chaparro's suspension.

We recognize that the importance of maintaining order and discipline in a corrections facility means that officers, such as Chaparro, are held to a higher standard of conduct than other public employees. See Henry v. Rahway State Prison, 81 N.J. 571, 579 (1980) ("Maintaining discipline within law enforcement agencies is important for the safety and security of the public."); Bowden v. Bayside State Prison, 268 N.J. Super. 301, 306 (App. Div. 1993) ("We can take judicial notice that [prison] facilities, if not properly operated, have a capacity to become 'tinderboxes.'"), certif. denied, 135 N.J. 469 (1994).

"In matters involving discipline of police and corrections officers, public safety concerns may also bear upon the propriety of the . . . sanction." In re Carter, 191 N.J. 474, 485 (2007). As a result, we conclude that the final CSC decision is not arbitrary, capricious, or unreasonable.

1 At the time, SWSP did not have a chief.

2 Ultimately, SWSP accepted this test but still found her noncompliant for failing to have obeyed prior orders and for failing to have timely obtained the PPD test.

3 The memorandum advised personnel that DeMaio would begin testing on January 20, 2009, and end on January 30, 2009.

4 The memorandum emphasized that if Chaparro failed to comply, she would be subject to disciplinary action "up to and including termination."

5 In modifying the ultimate suspension from thirty days to ten working days, the CSC ruled that Chaparro is entitled to twenty days of back pay, benefits, and seniority pursuant to N.J.A.C. 4A:2-2.10.