IN THE MATTER OF EDWIN GARCIA DEPARTMENT OF CORRECTIONS HUDSON COUNTY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1404-08T31404-08T3

IN THE MATTER OF EDWIN GARCIA,

DEPARTMENT OF CORRECTIONS HUDSON

COUNTY.

________________________________________

 

Argued November 30, 2009 - Decided

Before Judges Rodr guez and Chambers.

On appeal from a Final Administrative Decision of the Civil Service Commission, Docket No. CSC 2007-5035.

Anthony J. Iacullo argued the cause for appellant Edwin Garcia (Iacullo Martino, L.L.C., attorneys; Mr. Iacullo, of counsel and on the brief; Joshua H. Reinitz, on the brief).

Cindy Nan Vogelman argued the cause for respondent Department of Corrections Hudson County (Chasan Leyner & Lamparello, attorneys; Ms. Vogelman, of counsel and on the brief; Maria P. Vallejo, on the brief).

Anne Milgram, Attorney General, attorney for respondent New Jersey Civil Service Commission (Andrea R. Grundfest, Deputy Attorney General, on the statement in lieu of brief).

PER CURIAM

Edwin Garcia appeals from the Final Administrative Action of the Civil Service Commission (Commission), terminating his employment as a corrections officer with the Hudson County Department of Corrections. We affirm.

At issue are two disciplinary matters. In the first, the County maintained that Garcia failed to include in a report the fact that another officer had lunged at a handcuffed inmate and grabbed the inmate's shirt. As a result, the County charged Garcia with insubordination, N.J.A.C. 4A:2-2.3(a)(2), conduct unbecoming a public employee, N.J.A.C. 4A:2-2.3(a)(6), neglect of duty, N.J.A.C. 4A:2-2.3(a)(7), and other sufficient cause, N.J.A.C. 4A:2-2.3(a)(11). In the second disciplinary matter, the County asserted that, while involved in an incident with an inmate, Garcia used excessive force despite being ordered numerous times to cease. For this incident, Garcia was charged with conduct unbecoming a public employee, N.J.A.C. 4A:2-2.3(a)(6), neglect of duty, N.J.A.C. 4A:2-2.3(a)(7), and other sufficient cause, N.J.A.C. 4A:2-2.3(a)(11). The County sought to terminate Garcia's employment.

The County held a hearing on the disciplinary charges on March 2, and April 4, 2007, and the hearing officer sustained the charges. The County issued a Final Notice of Disciplinary Action terminating Garcia's employment on June 7, 2007. Garcia appealed the decision to the Commission and a hearing was held before an Administrative Law Judge (ALJ).

The ALJ took testimony from numerous witnesses, including Garcia, and a superior officer who testified that during the second disciplinary incident, he received a punch intended for the inmate when he intervened. The ALJ sustained both charges, finding, with respect to the first incident, that "Garcia submitted a report omitting the use of excessive force on an inmate" and, with respect to the second incident, that "Garcia used excessive force to subdue inmate E.B. by striking him, although ordered to desist by superior officers." In the Initial Decision, the ALJ concluded that Garcia had committed conduct unbecoming a public employee, neglect of duty, and insubordination. In light of Garcia's prior record and the nature of these offenses, the ALJ imposed the sanction of removal.

The Commission, in its independent evaluation of the record, concluded that the removal was justified. Garcia now appeals that decision to this court. Garcia contends that the findings of the Commission are not justified and that the sanction of removal was arbitrary and capricious.

Our review of an administrative agency decision is limited. In re Musick, 143 N.J. 206, 216 (1996). An administrative agency is presumed to have acted reasonably. In re Vey, 272 N.J. Super. 199, 205 (App. Div. 1993), aff'd, 135 N.J. 306 (1994). We must sustain the Commission's decision unless appellant has made "a clear showing that [the agency's decision] is arbitrary, capricious, or unreasonable, or that it lacks fair support in the record." In re Herrmann, 192 N.J. 19, 27-28 (2007). In evaluating whether this standard has been met, we make the following three inquiries:

(1) whether the agency's action violates express or implied legislative policies, that is, did the agency follow the law; (2) whether the record contains substantial evidence to support the findings on which the agency based its action; and (3) whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors.
 
[Id. at 28 (quoting Mazza v. Bd. of Trs., 143 N.J. 22, 25 (1995)).]

When reviewing the imposition of disciplinary penalties by an administrative agency, we must accord substantial deference to the agency's expertise in this area. Ibid. We may not substitute our judgment for that of the administrative agency. Ibid. We will not overturn the agency's determination unless it is illegal or unreasonable, ibid. (citing 37 New Jersey Practice, Administrative Law and Practice 328, at 334 (Steven L. Lefelt) (1 ed. 1988)), or the "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 (quoting In re Polk, 90 N.J. 550, 578 (1982)).

In light of these standards, we find no basis to overturn the decision of the Commission. While Garcia provided testimony disputing some of the critical factual assertions made by other witnesses and, regarding the first matter, provided an explanation for omitting certain material from his report, a review of the record indicates that there is substantial evidence to support the factual findings of the ALJ and conclusions reached by the Commission.

 
Further the sanction of termination for these disciplinary infractions is not unreasonable or disproportionate in light of the offenses, particularly when viewed against the backdrop of Garcia's prior disciplinary record. While the ALJ acknowledged that Garcia had received eight commendations during his employment, Garcia had also been repeatedly disciplined, including at least four suspensions in excess of thirty days.

Affirmed.

The appeal was filed with the Merit System Board, but the Board's functions, powers and duties were transferred to the Civil Service Commission effective June 30, 2008, pursuant to N.J.S.A. 11A:11-1.

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A-1404-08T3

December 21, 2009