IN THE MATTER OF NOLAN COX, MERCER COUNTY DEPARTMENT OF PUBLIC SAFETY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-02471-14T4

IN THE MATTER OF NOLAN

COX, MERCER COUNTY

DEPARTMENT OF PUBLIC

SAFETY.

December 7, 2016

Submitted September 22, 2016 Decided

Before Judges Hoffman and O'Connor.

On appeal from the New Jersey Civil Service Commission, CSC Docket No. 2013-116.

Alterman & Associates, LLC, attorneys for appellant Nolan Cox (Stuart J. Alterman and Matthew R. Dempsky, on the briefs).

Arthur R. Sypek, Jr., County Counsel, attorney for respondent Mercer County Department of Public Safety (Kristina E. Chubenko, Assistant County Counsel, of counsel and on the brief).

Christopher S. Porrino, Attorney General, attorney for respondent Civil Service Commission (Pamela N. Ullman, Deputy Attorney General, on the statement in lieu of brief).

PER CURIAM

Nolan Cox appeals from the Civil Service Commission's final administrative decision. The Commission found appellant, while employed as a correctional officer at the Mercer County Correction Center (CCC), engaged in misconduct warranting disciplinary charges and a forty-five-day suspension. The County and Commission oppose the appeal.

The charges arose when appellant failed to perform the majority of the routine security checks in his assigned hallway during his overnight shift. After receiving a Final Notice of Disciplinary Action (FNDA), appellant timely filed an appeal with the Commission, which transmitted the matter to the Office of Administrative Law (OAL) as a contested case. Following a hearing, an Administrative Law Judge (ALJ) found the County had not met its burden proving the falsification charge and modified the initial forty-five-day suspension to a five-day suspension. The County timely filed exceptions. Following its review, the Commission reinstated the falsification charge and the forty-five-day suspension.

This appeal followed, with appellant arguing (1) the Commission's ruling was arbitrary, capricious and unreasonable because the evidence in the record did not support its determination, (2) the forty-five-day penalty was excessive, and (3) procedural deficiencies in service and the County's failure to follow the Attorney General's guidelines necessitate reversal. We conclude these arguments lack merit. We affirm.

I.

We discern the following facts from the record and the hearing before the ALJ. The CCC employed appellant, now retired, as a correctional officer for approximately twenty years. The charges at issue arose from appellant's conduct on the overnight shift (11 p.m. to 7 a.m.) beginning on February 27, 2012, when appellant was assigned to the B-Pod second floor as the living unit officer. The B-Pod houses maximum security inmates.

According to the testimony of Captain Bearden of the CCC, appellant's job duties required him to patrol his unit at least once every thirty minutes and make visual security checks to insure the inmates were secured and safe. This assignment required appellant to physically walk the unit and look into each cell; he could not use monitors or cameras to conduct his checks. Each cell door contains a window which enables the officers to conduct their visual security checks. The B-Pod second floor consists of thirteen cells. Appellant was required to document each thirty-minute security check in the log book for the living unit.

On February 28, 2012, Captain Bearden reviewed the security footage from the overnight shift at issue, while investigating an unrelated incident. During this review, he observed appellant conducted only three of his required security checks the entire night. Captain Bearden then reviewed the log book for A tour, B-Pod second floor, and observed appellant wrote "all secure" next to each half-hour entry, indicating he made the security checks, even though the video showed he had not.

Following this discovery, Captain Bearden drafted charges against appellant. In a Preliminary Notice of Disciplinary Action (PNDA), dated April 4, 2012, Captain Bearden charged appellant with violating SOP (Standard Operating Procedure) 238, which requires officers to "account for each inmate every [thirty] minutes from 10 p.m. to 6 a.m." Captain Bearden explained "account" means "actually visually inspect and account for" by physically looking inside each cell. Captain Bearden also charged appellant with violating SOP 240, which requires "regular patrols of the living unit" and directs officers to make "[s]ecurity checks" every thirty minutes. He further charged appellant with other infractions, including falsification. Captain Bearden recommended a forty-five-day penalty, based on appellant's past disciplinary history (appellant had received one prior major disciplinary penalty and a resulting ten-day suspension in 2009, and two subsequent written reprimands).

Appellant testified he had been assigned to the living unit on B-Pod for approximately five or six years. He received the B-Pod top tier assignment on the night in question because it was a "bidded post," meaning he requested and obtained it based on seniority. Appellant stated any officer assigned to that area is stationed at a desk at the end of the hall. The hall is an "L" shape, and appellant stated he could see all the cell doors except one from his desk.

Appellant testified his duties were to make thirty-minute checks on the unit, which he did while sitting at the desk. Appellant further noted the inmates would call out if they needed attention or medical help, and he also would be able to hear if a fight started. Appellant also stated he did not always get up every thirty minutes to check the cells in order to surprise the inmates, as they would sometimes keep track of his schedule. On cross-examination, appellant admitted he could only see the bunk beds inside the first two cells from his desk, and he would have to get up and look in the windows to see the bunks in the other cells.

Appellant acknowledged an SOP required officers to "make a walk around" every thirty minutes. He stated there were no problems on the night in question, and "everything was secure." Appellant testified he wrote "all secure" in the log book entries, despite not getting up, because it was a quiet night with no problems. He stated he visually checked the hallway and determined the units were secure. Appellant further acknowledged he did not make his rounds in the "procedurally correct" manner on the night in question, but claimed he followed proper procedure on other days.

Appellant also testified Captain Bearden asked him to write a report on or about April 11, 2012, regarding "what was going on [in] my unit" on the night of February 27. Appellant stated he asked Captain Bearden what the problem was, but the captain did not give him a straight answer. Appellant went back to work the next day after drafting the report, and did not receive any further contact regarding the report for several months.

Appellant claimed he never received the PNDA nor was he told of his charges or suspension until July 8, 2012, when the officer in charge of shifts at the CCC informed him. He also stated he never received the FNDA dated June 27, 2012. However, on cross-examination, he acknowledged his signature on the form, along with his handwriting noting the date of July 2, 2012. The form indicated his suspension would begin on July 9, 2012.

The ALJ rendered his initial decision on October 22, 2014, modifying the suspension from forty-five days to five days and dismissing the falsification charge. Regarding falsification, the ALJ stated, "I cannot conclude that appellant is guilty of falsification if he truly believed that the checks he logged in the logbook were sufficient." The ALJ further found appellant's suspension was excessive, noting it was "troubling" Captain Bearden knew of appellant's conduct as early as February 28, 2012, but took no corrective action until the April 4 PNDA and ultimate suspension on July 9, 2012. The ALJ noted the County could not have found appellant's conduct egregious enough to warrant a significant forty-five-day suspension when it did not immediately act to discipline him.

The County filed Exceptions, and the Commission issued its Final Administrative Action on December 17, 2014, finding appellant's belief the visual checks were sufficient "not reasonable," as he acknowledged the SOPs required he perform physical security checks every thirty minutes. The Commission further found the County may have taken an extended period of time to bring forth the formal charges, but appellant's misconduct in failing to perform the required security checks was a serious infraction warranting the full penalty. The Commission noted it would have imposed the full suspension even if it had not sustained the falsification charge, stating, "[T]he potential public safety implications that could result from the failure to adequately conduct security checks is significant."

II.

Where a civil service employee is charged with misconduct related to his or her official duties in a major discipline case, the Commission may impose penalties. N.J.A.C.4A:2-2.2, -2.3(a). In such cases, the appointing authority bears the burden of proof. N.J.A.C.4A:2-1.4. In administrative cases, facts essential to the claim must be proven by the preponderance of the evidence. Atkinson v. Parsekian, 37 N.J.143, 149 (1962).

Where the appointing authority meets its burden of proof in a major discipline case, penalties may include suspension for more than five days at any time or a fine, disciplinary demotion, or removal from public employment. N.J.A.C.4A:2-2.2(a). Factors determining the degree of discipline include the employee's prior disciplinary record. West New York v. Bock, 38 N.J.500, 523-24 (1962). However, removal or significant penalties may be appropriate where misconduct is sufficiently egregious. SeeHenry v. Rahway State Prison, 81 N.J.571, 580 (1980).

The scope of appellate review of an administrative agency decision is limited. SeeIn re Herrmann, 192 N.J.19, 27 (2007). "An administrative agency's final quasi-judicial decision will be sustained unless there is a clear showing that it is arbitrary, capricious, or unreasonable, or that it lacks fair support in the record." Id.at 27-28 (citing Campbell v. Dep't of Civil Serv., 39 N.J.556, 562 (1963)).

However, when the agency head reaches findings of fact at odds with those of the ALJ, our review is heightened. In re Lalama, 343 N.J. Super. 560, 565 (App. Div. 2001). An agency is not required to accept the findings of the ALJ, but cannot simply disregard them without stating sufficient reasons for the decision. Ibid. The basis for rejecting the ALJ's recommendation "must be set forth by the agency head with particularity and new or modified findings supported by sufficient, competent, and credible evidence in the record must be made." Dep't of Children & Families, Div. of Youth & Family Servs. v. C.H., 414 N.J. Super. 472, 480 (App. Div.) (citing N.J.S.A.52:14B-10(c)), reaff'd, 416 N.J. Super.414 (App. Div. 2010), certif. denied, 207 N.J.188 (2011).

We impose this high burden on the agency head because the legislature has expressly circumscribed its power to reject the credibility-based fact-finding of an ALJ. SeeN.J.S.A.52:14B-10(c). The statute advises that the agency head cannot reject the ALJ's fact findings relating to the credibility of lay witness testimony unless it determines the findings were "arbitrary, capricious or unreasonable" or were "not supported by sufficient, competent, and credible evidence in the record." Ibid.

We have interpreted this statute, noting "[a]n agency head reviewing an ALJ's credibility findings relating to a lay witness may not reject or modify these findings unless the agency head explains why the ALJ's findings are arbitrary or not supported by the record." S.D. v. Div. of Med. Assistance & Health Servs., 349 N.J. Super. 480, 485 (App. Div. 2002). "When an ALJ has made factual findings by evaluating the credibility of lay witnesses, the [agency head] may no longer sift through the record anew to make its own decision, which will be affirmed if it is independently supported by credible evidence." Cavalieri v. Bd. of Trs. of the Pub. Emps. Ret. Sys., 368 N.J. Super. 527, 534 (App. Div. 2004) (citations omitted).

Applying this standard, we are satisfied the Commission stated with particularity its reasons for rejecting the ALJ's findings. Moreover, the record and principles of law adequately support these reasons.

First, we conclude the Commission appropriately rejected the ALJ's recommendation to dismiss the falsification charge. The ALJ stated he could not conclude appellant falsified the logbook if appellant "truly believed" his visual security checks were sufficient. The Commission found appellant's claim unreasonable, as appellant acknowledged during the hearing the SOP required he get up and physically perform the security checks every thirty minutes. The Commission therefore found appellant falsified his log book by indicating he performed the required security checks when in reality he had not.

We agree, and conclude the ALJ's credibility determination was so wide of the mark that the Commission correctly found it unreasonable. N.J.S.A.52:14B-10(c). Appellant clearly acknowledged before the ALJ that he was required to physically get up and check the units. Therefore, appellant provided false information when he logged that he performed the required checks every thirty minutes, but later admitted he did not do what was required.

Moreover, appellant stated he did not perform the required checks because it was a quiet night, and thus he believed visual checks from his desk were sufficient to confirm the units were secure. However, appellant acknowledged he could only see inside two of the units from his desk, and he could not see one unit at all from that position. Therefore, appellant also made false statements when he wrote the units were "all secure" without confirming the veracity of these statements.

Second, we discern no basis to disturb the Commission's re-imposition of the full forty-five-day suspension. The Commission reviews penalty determinations de novo. SeeWinters v. N. Hudson Reg'l Fire & Rescue, 212 N.J.67, 81 (2012) (citing N.J.A.C.4A:2-2.9(d)). Indeed, when not considering the ALJ's credibility findings relating to a lay witness, an agency head reviews an ALJ's decision de novo "based on the record." In re Parlow, 192 N.J. Super. 247, 248 (App. Div. 1983). We grant administrative agencies significant deference upon appellate review, and we will not disturb their decisions unless they are "arbitrary, capricious, or unreasonable." Circus Liquors, Inc. v. Governing Body of Middletown Twp., 199 N.J.1, 9 (2009).

The ALJ found appellant's forty-five-day sentence excessive because it was not imposed until several months after the date of incident, thereby demonstrating appellant's misconduct was not egregious or else the Commission would have imposed the suspension immediately. Conversely, while noting the unexplained delay in proceeding with the charges, the Commission concluded the delay did not mitigate the seriousness of the misconduct.

We agree with the Commission. In prison, the disruption of order poses significant danger. Bowden v. Bayside State Prison, 268 N.J. Super. 301, 305 (App. Div. 1993), certif. denied, 135 N.J.469 (1994). We have noted the need for proper operation of correctional facilities, taking judicial notice that such facilities have the capacity to become "tinderboxes" if mismanaged. Id.at 305-06.

The Commission further notes it generally utilizes the concept of "progressive discipline" in appointing penalties. SeeIn re Carter, 191 N.J.474, 483-84 (2007) (discussing the theory of "progressive discipline"). However, a significant penalty may be appropriate, even where a corrections officer does not have a prior disciplinary record, if the misconduct in question is sufficiently serious. Henry, supra, 81 N.J.at 580; see alsoHerrmann, supra, 192 N.J.at 33 ("[P]rogressive discipline has been bypassed when an employee engages in severe misconduct, especially when the employee's position involves public safety and the misconduct causes risk of harm to persons or property."); Carter, supra, 191 N.J.at 486 (noting some offenses are so severe that dismissal may be appropriate even where an employee has no prior record of discipline).

Therefore, we agree appellant's failure to perform the required safety checks created a serious public safety risk warranting the forty-five-day penalty. Based on the safety concerns and volatile nature of correctional facilities, we find this penalty neither "arbitrary, capricious, [nor] unreasonable." Circus Liquors, supra, 199 N.J.at 9. We further find any supposed delay in imposing the sentence of no consequence given these essential public safety concerns.

Finally, we address appellant's procedural challenges. Appellant first argues he was not given proper notice of his charges because he never received the PNDA, and he only received the FNDA five days prior to the beginning of his suspension, and therefore he did not have a meaningful opportunity for a departmental hearing to defend himself from the charges.

Our review of the record does not clearly indicate whether appellant ever received service of the PNDA. However, we have held that "[a]lleged procedural deficiencies attendant upon the departmental prior hearing" are considered cured if the appellant receives a later plenary de novo hearing. In re Darcy, 114 N.J. Super. 454, 461 (App. Div. 1971); see alsoEnsslin v. Twp. of N. Bergen, 275 N.J. Super.352, 361 (App. Div. 1994) ("[P]rocedural irregularities at the department level are considered 'cured' by a subsequent plenary hearing at the agency level.") (citation omitted), certif. denied, 142 N.J.446 (1995). This was the case here, as appellant received a full evidentiary hearing before an ALJ over three different dates. Therefore, we find the ALJ's hearing cured any alleged procedural deficiencies regarding the PNDA and FNDA, and we affirm on this basis.

Last, appellant argues his disciplinary penalty was defective because the County did not comply with the Attorney General guidelines governing Internal Affairs Policy and Procedures. SeeN.J.S.A.40A:14-181 ("Every law enforcement agency shall adopt and implement guidelines which shall be consistent with the guidelines governing the 'Internal Affairs Policy and Procedures' of the Police Management Manual . . . ."). However, the relevant guidelines exempt correctional facilities from these requirements

Agencies not under the Supervision of the Attorney General as set forth in the Criminal Justice Act of 1970 and/or whose primary mission does not include enforcing the criminal laws of this State (e.g., State and county juvenile justice agencies, State and county correctional agencies . . .), are under no obligation to implement the provisions of this policy.

[Office of the Attorney Gen., Internal Affairs Policy & Procedures 5 (2014).]

We discern no basis to depart from the application of this exemption.

Affirmed.