IN THE MATTER OF STEVEN A. FLESH

NOT FOR PUBLICATION WITHOUT THE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 STEVEN A. FLESH,

ALBERT C. WAGNER YOUTH CORRECTIONAL

FACILITY.

_________________________________

April 22, 2014

Submitted April 9, 2014 Decided

Before Judges Grall and Nugent.

On appeal from Civil Service Commission, CSC Docket Nos. 2012-3127 and 2012-3128.

Jay M. Arnesen, attorney for appellant Steven A. Flesh.

John J. Hoffman, Acting Attorney General, attorney for respondent Albert C. Wagner Youth Correctional Facility (Melissa H. Raksa, Assistant Attorney General, of counsel; Peter H. Jenkins, Deputy Attorney General, on the brief).

PER CURIAM

Appellant, former Senior Corrections Officer Steven A. Flesh, appeals from the November 8, 2012 final administrative decision that upheld the appointing authority's action suspending him for sixty days and removing him from office. We affirm.

Appellant does not dispute the facts that resulted in his discipline. He began working as a corrections officer at the Albert C. Wagner Youth Correctional Facility, Department of Corrections (the appointing authority), in 2008. In November 2011, while appellant was driving to work, police stopped him and charged him with operating a motor vehicle while under the influence of alcohol, N.J.S.A. 39:4-50, refusal to submit to a chemical test, N.J.S.A. 39:4-50.4a, and other traffic summonses. Appellant subsequently pled guilty to the operating under the influence and refusal charges, and the municipal court judge imposed appropriate penalties.

The next month, December 2011, police arrested appellant after he was involved in an accident, and charged him with operating a motor vehicle while under the influence of alcohol, N.J.S.A. 39:4-50, leaving the scene of an accident, N.J.S.A. 39:4-129, and failure to report an accident, N.J.S.A. 39:4-130. Defendant subsequently pled guilty to the charge of operating a motor vehicle while under the influence of alcohol, and the municipal court judge imposed appropriate penalties.

Following appellant's convictions, the appointing authority charged him with conduct unbecoming a public employee and other sufficient cause for violating its rules and regulations. The appointing authority served appellant with a separate Preliminary Notice of Disciplinary Action (PNDA) for each of the November and December 2011 incidents. The PNDAs specified the charges and proposed discipline for each instance of misconduct. The discipline proposed was a sixty-day suspension for the charges stemming from the November 2011 incident, and removal from office for the charges stemming from the December 2011 incident. At appellant's request, the appointing authority timely conducted disciplinary hearings. Thereafter the appointing authority served appellant with a separate Final Notice of Disciplinary Action (FNDA) for the November and December 2011 incidents; suspension for sixty days and removal from office, respectively.

Appellant appealed both disciplinary actions to the Civil Service Commission (CSC), which transmitted them to the Office of Administrative Law for a contested hearing. The Administrative Law Judge (ALJ) consolidated them and thereafter granted the appointing authority's motion for summary decision. Based on the undisputed facts, the ALJ determined that appellant was guilty of conduct unbecoming a public employee and other sufficient cause.

The ALJ conducted a plenary hearing as to what penalty should be imposed. Following the hearing, the ALJ rendered a decision which included the following findings and conclusions:

After listening to appellant's testimony and the testimony of his witnesses, it's clear to me that he was a fine correction officer and is a good person. I am convinced that his misconduct was an aberration and that if he were allowed to return to work he does appear to be capable of living up to the high standards of a correction officer. I feel strongly that if the appellant were not allowed to return to his position, it would send a terrible message to other good people who may have made mistakes that they should not even bother to try to turn around their lives and be productive members of society.

On the other hand, appellant's convictions of two offenses of driving while intoxicated and one offense of breathalyzer test refusal are very serious offenses which warrant his removal as a correction officer. Reinstating the appellant to his position as a correction officer, even with a substantial period of suspension, would be viewed as approving misconduct of correction officers and all law enforcement officers who violate their oath of office. I must agree with respondent's arguments that appellant's misconduct not only endangered the public, but also involved his breaking the very laws he is sworn to enforce and should result in the forfeiture of any and all trust in him as a correction officer. Therefore, I reluctantly CONCLUDE that the appropriate penalty is appellant's removal from his position as a Senior Correction Officer.

The parties filed exceptions and cross-exceptions with the CSC. On November 8, 2012, the CSC accepted and adopted the ALJ's findings of fact and conclusions. The CSC determined "that the action of the appointing authority in suspending and removing the appellant was justified." Accordingly, the CSC affirmed the appointing authority's disciplinary action and dismissed appellant's appeal. Appellant filed this appeal from the CSC's decision.

Appellant presents the following argument for our consideration:

POINT I

THE CIVIL SERVICE COMMISSION'S DECISION TO REMOVE APPELLANT FROM HIS EMPLOYMENT WAS ARBITRARY AND CAPRICIOUS AND MUST BE REVERSED AS THE PENALTY WAS NOT PROPORTIONAL TO THE FACTS PRESENTED.

The standard of review of administrative agency decisions "requires that courts defer to the specialized or technical expertise of the agency charged with administration of a regulatory system." In re Virtua-West Jersey Hosp. Voorhees, 194 N.J. 413, 422 (2008). Consequently, "an appellate court ordinarily should not disturb an administrative agency's determinations or findings unless there is a clear showing that (1) the agency did not follow the law; (2) the decision was arbitrary, capricious, or unreasonable; or (3) the decision was not supported by substantial evidence." Id. at 422. "The burden of demonstrating that the agency's action was arbitrary, capricious or unreasonable rests upon the [party] challenging the administrative action." In re Arenas, 385 N.J. Super. 440, 443-44 (App. Div.), certif. denied, 188 N.J. 219 (2006); McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 563 (App. Div. 2002); Barone v. Dep't of Human Servs., 210 N.J. Super. 276, 285 (App. Div. 1986), aff'd, 107 N.J. 355 (1987).

"That deferential standard applies to the review of disciplinary sanctions as well." In re Herrmann, 192 N.J. 19, 28 (2007). "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 (alteration in original) (internal quotation marks omitted) (citing In re Polk, 90 N.J. 550, 578 (1982)). "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.

Having considered appellant's argument in light of the record and our standard of review, we conclude that the CSC's decision is supported by sufficient credible evidence in the record as a whole, R. 2:11-3(e)(1)(D); that its decision is not arbitrary, capricious, or unreasonable, In re Arenas, supra, 385 N.J. Super. at 443-44; and that suspending appellant and removing him from office is not so disproportionate to the serious offenses he committed, in light of all the circumstances, as to be shocking to one's sense of fairness, In re Herrmann, supra, 192 N.J. at 28-29. Appellant's argument is without sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E).