IN THE MATTER OF WILBUR BOOTH

NOT FOR PUBLICATION WITHOUT THE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 WILBUR

BOOTH, DEPARTMENT OF

CORRECTIONS.

______________________________________________________________

August 11, 2014

Argued February 5, 2014 Decided

Before Judges Sapp-Peterson and Maven.

On appeal from the Civil Service Commission, Department of Labor and Workforce Development, Docket No. 2012-728.

George W. Fisher argued the cause for appellant Wilbur Booth (Zuckerman & Fisher, LLC, attorneys; Mr. Fisher, on the brief).

Andrew J. Sarrol, Deputy Attorney General, argued the cause for respondent New Jersey Department of Corrections (John J. Hoffman, Acting Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Mr. Sarrol, on the brief).

PER CURIAM

Wilbur Booth, a lieutenant within the New Jersey Department of Corrections (NJDOC or Appointing Authority), appeals from a January 9, 2013 final determination of the Civil Service Commission (Commission) suspending him for ten working days. The Commission (1) adopted the findings of fact of the Administrative Law Judge (ALJ) upholding the Appointing Authority's finding that Booth had engaged in conduct unbecoming a public employee, (2) rejected the ALJ's conclusion that Booth violated the NJDOC policy prohibiting discrimination, harassment or hostile work environment, and (3) modified the sanction imposed. We affirm, substantially for the reasons outlined in the Commission's well-reasoned written decision.

The following facts were adduced at the hearing under review. Booth has worked for the NJDOC for approximately twenty-one and one-half years. At the time of the incident underlying this appeal, Booth had been assigned to the Adult Diagnostic Treatment Center (ADTC), where he assumed a supervisory role as a shift commander. Senior Corrections Officer Vincenzo Billero had also been assigned to the ADTC for approximately twelve years.

Although Booth and Billero were not assigned to the same shift, they often interacted with one another during shift changes. As a superior officer, Booth would, for example, verbally address Billero about his inappropriate attire, his early departure from work, and his alleged failure to properly handle State equipment. Booth filed several incident reports against Billero, while Billero filed two incident reports against Booth for harassment.

The incident underlying this appeal occurred on June 2, 2011 when Booth arrived on time to work the second shift. He used the men's locker room to change into his uniform. After doing so, Booth left the locker room, and proceeded toward the side door of the front of the facility. At the same time, Billero and Sergeant Michael Gutto were approaching Booth in single file order from the opposite direction.

Upon passing Booth, Billero reportedly said, "I guess some people have to get to work on time." Billero and Gutto then walked towards the locker room. After a minute or two, Booth turned around and returned to the locker room. He approached Billero, stood within six inches of his face, and said, "Were you just talking to me?" Billero responded, "Was I looking at you?" A verbal confrontation ensued, which ended when Billero, using an expletive, told Booth to get out of his face. At no point did Booth verbally threaten, make contact with, or make a "head lunge motion" toward Billero.

Both Booth and Billero filed incident reports following the confrontation. On July 7, 2011, the Appointing Authority issued a Preliminary Notice of Disciplinary Action charging Booth with violating N.J.A.C. 4A:2-2.3(a)(11) (other sufficient cause), NJDOC HRB:84-17, C31 (policy prohibiting discrimination, harassment or hostile environments in the workplace), N.J.A.C. 4A:2-2.3(a)(6) (conduct unbecoming a public employee), and NJDOC HRB:84-17, C11 (conduct unbecoming a public employee).

After a departmental hearing, the Appointing Authority issued a Final Notice of Disciplinary Action sustaining the charges, and suspending Booth from employment for thirty working days. Booth appealed, and the matter was transmitted to the Office of Administrative Law (OAL) for a hearing.

The case was heard over three days in August 2012 before ALJ Edward J. Delanoy, Jr. The ALJ heard testimony from Vincenzo Billero, Sergeant Michael Gutto, Major Thomas Robertson, Lieutenant Christopher Orlowsky, Albert L. Hancock, and Booth. Crediting Booth's testimony, the ALJ found it "difficult to believe that [Booth] would have returned to the locker room to confront Billero absent some comment or provocation from Billero." Thus, the ALJ found that Billero had instigated the locker room confrontation by his comment about Booth's tardiness for work. The ALJ further found no evidence that Booth had threatened Billero, or that any physical contact had occurred between the two men.

Despite such findings, the ALJ concluded that Booth had violated the NJDOC's policy prohibiting discrimination and harassment. He determined that Booth was subject to the policy and, as a shift commander, he "should not handle disciplinary matters by confronting a subordinate officer in a public place such as a locker room, as this is a form of harassment." Although perhaps provoked by Billero, Booth's "actions created a hostile and harassing environment in the workplace."

The ALJ further concluded that Booth's conduct rose to the level of unbecoming a public employee. Although provoked, Booth "should not have publicly confronted Billero." The ALJ found that Booth had failed to maintain self-control and decorum in violation of Law Enforcement Personnel Rules and Regulations (LEPRR), and had engaged in threatening behavior, all of which could "adversely affect the morale or efficiency of a governmental unit or destroy public respect in the delivery of governmental services."

Additionally, the ALJ determined that Booth's conduct constituted "other sufficient cause" under N.J.A.C. 4A:2-2.3(a)(11) because it violated the implicit standard of good behavior. He recommended that the Appointing Authority's findings be upheld, but that Booth's penalty be reduced from a thirty-day suspension to a five-day suspension. Both Booth and the Appointing Authority filed exceptions to the ALJ's decision.

Thereafter, on January 9, 2013, the Commission issued its final agency decision. The Commission first determined the ALJ had erred in finding that Booth had engaged in discriminatory or harassing behavior in violation of the NJDOC's policy. Based on the record, the Commission found that Booth's conduct towards Billero was not motivated by Billero's membership in any protected categories enumerated by the policy. Moreover, although Billero had filed a prior harassment complaint against Booth, the ALJ "did not find any facts to support that [Booth's] actions were based on retaliation under the State Policy."

Notwithstanding this finding, the Commission determined that Booth had engaged in conduct unbecoming a public employee "and sufficient cause ha[d] been established to warrant his discipline." Noting Booth's supervisory role, the Commission found that he "took it upon himself to address Billero's comment in a confrontational manner with other officers present, which is a serious offense." Thus, the Commission sustained the charge.

As to Booth's penalty, the Commission found that Booth's offense was "sufficiently egregious to warrant major discipline." Considering Booth's supervisory position, the nature of the offense, his relatively unblemished disciplinary record, and the ALJ's credibility findings, the Commission imposed a ten-day suspension in accordance with N.J.S.A. 11A:2-19 and N.J.A.C. 4A:2-2.9(d). Having reduced the original penalty, the Commission awarded Booth twenty days' back pay, benefits, and seniority pursuant to N.J.A.C. 4A:2-2.10, but denied his request for counsel fees.

On appeal, Booth raises the following issues for our consideration:

I. A SUPERVISORY CORRECTION OFFICER'S ADDRESS OF A JUNIOR OFFICER ABOUT AN INCIDENT OF INSUBORDINATION THAT HAD OCCURRED MOMENTS EARLIER, WHICH ADDRESS WAS FACE-TO-FACE, OCCURRED IN THE INSTITUTION'S MEN'S LOCKER ROOM, AND FOLLOWED FREQUENT INSTANCES OF INSUBORDINATION BY THE JUNIOR OFFICER IGNORED BY TOP ADMINISTRATION, DOES NOT CONSTITUTE CONDUCT UNBECOMING AN OFFICER.

1. Facts Found Upon Consideration Less

than Whole Record.

2. Facts Found Upon Consideration of

the Complete Record.

II. IN THAT THE 10-DAY PENALTY IMPOSED UPON APPELLANT BELOW WAS REACHED WITHOUT DUE CONSIDERATION GIVEN TO THE WHOLE OF THE RECORD, IT MUST BE SET ASIDE AS ARBITRARY AND CAPRICIOUS.

III. PURSUANT TO THE ADMINISTRATIVE REGULATION, APPELLANT IS ENTITLED TO PAYMENT OF COUNSEL FEES FOR HAVING PREVAILED IN THIS MATTER BY EITHER REVERSAL OF HOLDING OF "CONDUCT UNBECOMING" OR BY THE SUBSTANTIAL REDUCTION IN PENALTY INITIALLY IMPOSED AND SERVED.

After carefully reviewing the record and applicable legal principles, we affirm, substantially for the reasons set forth in the Commission's written decision. We only add the following brief comments.

Our review of an agency's final decision is limited. In re Stallworth, 208 N.J. 182, 194 (2011). 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). If a reviewing court determines that the Commission's decision is arbitrary, "the court may either finally determine the matter by fixing the appropriate penalty or remand it to the Commission for redetermination." Stallworth, supra, 208 N.J. at 194 (internal quotation marks omitted).

An ALJ's factual findings and legal conclusions are not "binding upon [an] agency head, unless otherwise provided by statute." N.J.A.C. 1:1-18.1(c). Accordingly, an agency head reviews an ALJ's decision "de novo . . . based on the record" before the ALJ. See In re Parlow, 192 N.J. Super. 247, 248 (App. Div. 1983). The Commission may reject or modify legal conclusions as well as fact findings unrelated to witness credibility, but must state its reasons for doing so. N.J.S.A. 52:14B-10(c); N.J.A.C. 1:1-18.6(b).

Contrary to Booth's first contention on appeal, there is nothing in the record to suggest that the Commission's determination that Booth had engaged in conduct unbecoming a public employee was either arbitrary, capricious, or unreasonable. Rather, the Commission's written decision indicates it appropriately considered the relevant circumstances surrounding Booth's discipline, namely his supervisory position and the unprofessional manner in which he addressed Billero's comment. Thus, we discern no basis to reverse the Commission's decision in this regard.

With respect to the penalty imposed, Booth argues a ten-day suspension was so disproportionate to the offense, given all of the circumstances, that it shocked one's sense of fairness. See Stallworth, supra, 208 N.J. at 195. To that end, Booth further contends the Commission failed to consider all of the attendant circumstances, including Billero's poor reputation and Booth's prior efforts to constructively address Billero's inappropriate conduct.

An appellate court has "no power to act independently as an administrative tribunal or to substitute its judgment for that of the agency," Herrmann, supra, 192 N.J. at 28 (internal quotation marks and citation omitted), and is cautioned against substituting its own views on the penalty imposed for that of the administrative body, In re Carter, 191 N.J. 474, 486 (2007). Rather, we owe substantial deference to the agency's "choice of remedy or sanction, seeing it as a matter of broad discretion, . . . especially where considerations of public policy are implicated." Herrmann, supra, 192 N.J. at 35 (internal quotation marks and citations omitted).

In our review of a sanction imposed by an administrative agency, we alter the sanction imposed "only 'when necessary to bring the agency's action into conformity with its delegated authority.'" Id. at 28 (quoting In re Polk License Revocation, 90 N.J. 550, 578 (1982)).

In light of the deference owed to such determinations, . . . 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. . . . 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.

[Herrmann, supra, 192 N.J. at 28-29 (second ellipsis in original) (internal quotation marks and citations omitted).]

See also City of Newark v. Massey, 93 N.J. Super. 317, 324-25 (App. Div. 1967) (holding that in the context of disciplinary actions, we will not disturb the penalty imposed unless it is "so utterly disproportionate to the offense as to amount to a clear abuse of discretion." (internal quotation marks and citation omitted)).

The Commission's written decision makes clear that it considered key factors in deciding to impose a ten-day suspension, namely Booth's role as a supervisor, the nature of the offense, and the negative effect of Booth's conduct on the public trust. The Commission also considered such mitigating evidence as Booth's minor disciplinary history, accurately noting, however, that where an officer's underlying conduct is of such an egregious nature, the imposition of a penalty is appropriate, regardless of the officer's disciplinary history. See Carter v. Bordentown, 191 N.J. 474, 484 (2007).

Given the factors upon which the Commission relied, as well as the fact that the Commission's decision resulted in a reduction of the original penalty imposed by the Appointing Authority, we conclude the penalty was not so disproportionate to the offense so as to shock our sense of fairness. Moreover, the Commission's decision to impose a ten-day suspension was neither arbitrary, capricious, nor unreasonable. See Stallworth, supra, 208 N.J. at 194-95 (applying standard to disciplinary sanction).

Lastly, Booth argues he is entitled to counsel fees because he prevailed in having received a reduction in the original penalty imposed by the Appointing Authority. See N.J.A.C. 4A:2-2.12(a) ("The [Commission] shall award partial or full reasonable counsel fees incurred in proceedings before it . . . where an employee has prevailed on all or substantially all of the primary issues before the Commission."). We disagree.

Although the Commission reduced Booth's original penalty and reversed the ALJ's finding that Booth had harassed Billero in violation of the NJDOC policy, it ultimately upheld his suspension while sustaining the charges of conduct unbecoming of a public employee and other sufficient cause. See, e.g., Walcott v. City of Plainfield, 282 N.J. Super. 121, 128 (App. Div. 1995). We do not interpret this to mean that Booth prevailed within the meaning of the regulation. Further, nothing in the record suggests that the Commission's determination not to award counsel fees was either arbitrary, capricious or unreasonable, or unsupported by substantial credible evidence in the record.

Affirmed.