IN THE MATTER OF KEISHA MCGEE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

IN THE MATTER OF

KEISHA MCGEE,

NORTHERN STATE PRISON,

DEPARTMENT OF CORRECTIONS

_______________________________

December 15, 2014

Argued October 7, 2014 - Decided

Before Judges Hoffman and Whipple.

On appeal from Civil Service Commission, Docket No. 2012-3003.

Michael S. Doran argued the cause for appellant Keisha McGee (Cammarata, Nulty and Garrigan, L.L.C., attorneys; Mr. Doran, on the brief).

Roshan Shah, Deputy Attorney General, argued the cause for respondent Department of Corrections (John J. Hoffman, Acting Attorney General, attorney; Randy Miller, Deputy Attorney General, on the brief).

PER CURIAM

Appellant Keisha McGee, a Senior Corrections Officer, employed by the New Jersey Department of Corrections (DOC) at Northern State Prison, appeals from a Civil Service Commission (CSC) final decision sustaining charges of insubordination, conduct unbecoming a public employee, other sufficient cause ("other cause") and violation of a rule, regulation, policy, procedure, order or administrative decision ("violation of regulation or policy") as well as the imposition of a thirty-day suspension. The charges stem from an incident wherein appellant addressed offensive language to a superior officer and questioned his authority. We affirm in part, reverse in part, and remand for redetermination of the penalty.

On November 6, 2011, appellant reported to the prison for her 2:00 p.m. shift. The prison has an entrance lobby with a security scanner through which all employees are required to pass. An employee who fails to clear the scanner four times must sign a scan form and consent to a search. Beyond the scanner is a sally port which operates like an air lock, with an officer remotely closing an outer door and opening an inner door.

On that day, appellant walked through the security scanner, failing to clear four times. Sgt. Alvaro Castro was monitoring the security scanner. According to Castro, appellant began talking to co-workers and continued into the sally port. Castro called her name several times in order to have her sign the scan form, but she did not respond. After she entered the sally port, Castro ordered the officer operating the doors to send her back.

When she returned to Castro, appellant said she was not going to "go through this bullshit every day." She also said that supervisors were "fucking jokes." When Castro explained that he was doing his job, appellant stated that he did not know what his job was. Appellant signed the scan form and was searched in an adjacent room, where it was determined that an article of appellant's clothing had set off the scanner.

Appellant says that she only set off the scanner two times and that, upon being called back, Castro stated, "Oh, McGee, I don't have time for this, I am just doing my job. My job is to make sure you dirty cops clear the machine." Appellant claims she said, "I am not a dirty cop, apparently you don't know what your job is then, I am not a dirty officer, a dirty cop." Appellant stated that Castro then turned to Lt. William Coughlin and said, "You hear this disrespectful ass officer, Lieutenant?" The parties do not dispute that appellant signed the scan form and, ultimately, followed the necessary procedures for entry.

On December 20, 2011, the DOC served appellant with a notice of disciplinary action, charging her with: insubordination, N.J.A.C. 4A:2-2.3(a)(2) and DOC Human Resources Bulletin (HRB) 84-17 as amended, C-9; unbecoming conduct, N.J.A.C. 4A:2-2.3(a)(6) and HRB 84-17 as amended, C-11; other cause, N.J.A.C. 4A:2-2.3(a)(11)1; and violation of regulation or policy, HRB 84-17, as amended, E-1. Appellant requested a departmental hearing, which the DOC conducted on January 17, 2012. On April 3, 2012, the DOC issued a final notice of disciplinary action, sustaining all charges and suspending appellant for thirty days. Appellant appealed to the CSC, and on October 18, 2012, a hearing was conducted before an Administrative Law Judge (ALJ). After considering all of the testimony, the ALJ issued a written decision finding appellant guilty of all disciplinary charges.

The ALJ found the DOC's witnesses to be credible, independent and corroborative. The ALJ found inconsistencies in appellant's account and found her version not worthy of belief. The ALJ specifically found that appellant "willfully refused to sign the Failure to Clear report and attempted to enter the prison without clearance." The ALJ also found that appellant told Castro she would not "go through this bullshit every day," that she told him that supervisors were "fucking jokes" and that she told him that he did not know what his job was.

The ALJ found appellant guilty of insubordination pursuant to N.J.A.C. 4A:2-2.3(a)(2) and HRB 84-17, as amended, C-9, and guilty of conduct unbecoming a public employee in violation of N.J.A.C. 4A:2-2.3(a)(6) and HRB 84-17, as amended, C-11. The ALJ also found that appellant's conduct violated departmental regulations or policies under HRB 84-17 as amended, E-1, which constitutes other cause for purposes of N.J.A.C. 4A:2-2.3(a)(11) and that she was subject to major discipline. The ALJ concluded, after consideration of appellant's lack of a prior disciplinary record, that her offenses warranted a thirty-day suspension.

On May 1, 2013, the CSC issued a final decision adopting the findings of fact and conclusions of law of the ALJ and affirming the thirty-day suspension. Appellant appeals that final decision, arguing that the decision is arbitrary, capricious and unreasonable and is based on findings not supported by substantial, credible evidence. She also argues that the ALJ improperly expanded the charges set forth in the preliminary notice of disciplinary action and improperly prohibited appellant from questioning witnesses during the hearing.

We have a limited role in reviewing a decision of an administrative agency. Ordinarily, we will only reverse the decision of an administrative agency if it is arbitrary, capricious or unreasonable, or if it is not supported by substantial credible evidence in the record as a whole. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980) (citing Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963)). Moreover, while we are not bound by the CSC's legal opinions, we must give deference to the CSC's interpretation of its own regulations. Bd. of Educ. of City of Sea Isle v. Kennedy, 393 N.J. Super. 93, 101-02 (App. Div. 2007), aff'd, 196 N.J. 1 (2008). If we conclude that the decision of the CSC is arbitrary, we may finally determine the matter by fixing the appropriate penalty or remand it to the CSC for redetermination. Henry, supra, 81 N.J. at 580.

In applying these standards, we conclude that the ALJ's findings that appellant willfully refused to sign the scan form and attempted to enter the prison without clearance were unsupported by the record and are arbitrary, capricious and unreasonable. The parties do not dispute that appellant signed the scan form, and there is no testimony in the record that supports a finding that she refused. Castro admitted appellant signed the scan form and followed procedure. Moreover, appellant correctly points out that she was not charged in the preliminary notice of discipline with refusing to sign the scan form or attempting to enter the prison without clearance, and therefore the ALJ s finding expands the charge.

However, the ALJ's findings that appellant used offensive, disrespectful language are supported by substantial credible evidence in the record. The ALJ found Castro's testimony about what appellant said to him to be credible and corroborated by other DOC witnesses. Appellant's account was discredited. Therefore, we must consider whether appellant's use of offensive, disrespectful language to a superior officer alone is sufficient to sustain all three charges.

N.J.A.C. 4A:2-2.3(a)(2) does not define insubordination. HRB 84-17, as amended, C-9 defines insubordination as "[i]ntentional disobedience or refusal to accept order, assaulting or resisting authority, disrespect or use of insulting or abusive language to supervisor." Here, appellant used offensive language and exhibited a disrespectful attitude toward a superior officer. While not a direct act of disobedience, appellant's language was clearly insulting and abusive. Giving deference to the CSC's determination of its own regulations, we conclude that the record supports the finding of insubordination.

N.J.A.C. 4A:2.2-3(a)(2) as well as HRB 84-17, as amended, C-11 do not define unbecoming conduct. Conduct unbecoming an employee is an elastic phrase "that 'has been defined as any conduct which adversely affects the morale or efficiency of the bureau . . . [or] which has a tendency to destroy public respect for municipal employees and confidence in the operation of municipal services.'" Karins v. Atl. City, 152 N.J. 532, 554 (1998) (quoting Appeal of Emmons, 63 N.J. Super. 136, 140 (App. Div. 1960) (alterations in original)). The CSC's decision to affirm the finding of conduct unbecoming is consistent with the definition of conduct unbecoming in Karins, and we apply the same definition for state employees. Such misconduct need not be predicated upon the violation of any particular rule or regulation, but may be based upon the violation of implicit standards of good behavior. Emmons, supra, 63 N.J. Super. at 140. Appellant's profanity and disrespectful remarks toward her superior clearly fit within this definition because of their capacity to undermine morale, efficiency and discipline within the confines of a prison. We conclude that the record supports the finding.

The third charge, other cause, N.J.A.C. 4A:2-2.3(a)(11), pertains to violations of regulations or policy, HRB 84-17 as amended, E-1. As noted previously, we have determined that the charges of willful refusal to sign the scan form and attempting to enter the prison without clearance were not supported by sufficient credible evidence. There is no evidence of any other regulatory or policy violations. Therefore, the CSC erred by finding that the evidence established this charge.

The ALJ found that appellant's behavior warranted the thirty-day suspension based upon findings of guilt on three charges and found that appellant's conduct was sufficiently egregious to permit the imposition of a significant suspension in the absence of any prior disciplinary history. Because we have determined that the evidence does not support the third charge, the penalty imposed must be reversed and the matter remanded to the CSC for a redetermination of the penalty.

Finally, appellant challenges the ALJ's decision to prohibit appellant from questioning DOC witnesses regarding their failure to submit DOC-mandated written reports detailing appellant's violations of rules and regulations, and claims in her reply brief that her due process rights were violated when the ALJ expanded the charges. These arguments are without sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E).

Affirmed in part, reversed in part, and remanded to the CSC for redetermination of the penalty. We do not retain jurisdiction.

1 Subsequently re-codified as N.J.A.C. 4A:2-2.3(a)(12) as amended by R.2012 d.056, effective March 5, 2012. Hereinafter referred to as N.J.A.C. 4A:2-2.3(a)(11), as originally charged.