IN THE MATTER OF MELISSA FRATELLA

NOT FOR PUBLICATION WITHOUT THE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

MELISSA FRATELLA,

Appellant.

_________________________________________

May 19, 2014

Before Judges Yannotti, Ashrafi and St. John.

On appeal from the Civil Service Commission, Docket Nos. 2011-2739 and 2011-2803.

Darryl M. Saunders argued the cause for appellant.

Stephen E. Trimboli, Special County Counsel, argued the cause for respondent Morris County Sheriff's Office (Daniel O'Mullan, Morris County Counsel, attorney; Mr. Trimboli, of counsel and on the brief).

John J. Hoffman, Acting Attorney General, attorney for the New Jersey Civil Service Commission (Pamela N. Ullman, Deputy Attorney General, on the statement in lieu of brief).

PER CURIAM
 

Melissa Fratella appeals from the April 18, 2012 final decision of the Civil Service Commission (Commission), upholding her removal from her position as a corrections officer at the Morris County Sheriff's Office (MCSO). Having reviewed the record in light of the contentions advanced on appeal, we affirm.

I.

We discern the following facts from the record. Fratella was employed by MCSO's Bureau of Corrections (BOC) as a corrections officer from April 1997 to December 10, 2010. During her tenure, Fratella amassed twenty-two disciplinary actions consisting of sixteen suspensions and six written reprimands.

On October 14, 2010, an incident occurred at the correctional facility in which Fratella failed to remain in sufficient proximity to provide security to a nurse who was administering medical treatment to prison inmates. Consequently, Fratella was charged with violating N.J.A.C. 4A:2-2.3(a)(1) (incompetency, inefficiency or failure to perform duties, (3) (inability to perform duties), (7) (neglect of duty) and (11) (other sufficient causes), as well as MCSO Rules and Regulations (the MCSO Rules) 1:3.22 (neglect of duty), 2:5.3 (attention to duty), 2:5.10 (truthfulness) and 2:5.24 (conduct prejudicial). Fratella waived a departmental hearing and was served with a Final Notice of Disciplinary Action (FNDA), which suspended her from her position for 180 days.

On November 27, 2010, Fratella attended a shift meeting and mishandled her weapon in contravention of prison safety rules. She was subsequently charged with handling her firearm carelessly. MCSO also accused Fratella of being "deceptive, evasive, and untruthful" during investigations of both incidents, specifically that she had turned in reports, "which distorted the facts or concealed the details of the incidents." Accordingly, MCSO charged Fratella with numerous violations of N.J.A.C. 4A:2-2.3 and the MCSO Rules.

After Fratella again waived a departmental hearing, MCSO served an FNDA sustaining the charges and terminating Fratella from her position retroactive to December 10, 2010.

Fratella administratively appealed both the suspension and termination actions, and the matters were submitted to the Office of Administrative Law (OAL) as a contested, consolidated case. A hearing was conducted before an Administrative Law Judge (ALJ). On February 29, 2012, the ALJ issued an initial decision dismissing all of the charges except for the duty-weapon infraction, and reduced the penalty to a ninety-day suspension.

Regarding the firearm incident, the ALJ found that a preponderance of the evidence existed that Fratella had "entered the training [room] for muster with her weapon in its holster attached to her duty belt carried over her arm" and that a supervisor told her "at least two months before the incident that she had to [either] wear her gun on her belt around her waist . . . or place it in her locker in the armory before muster." However, the ALJ concluded that termination was disproportionate under the circumstances, reasoning that Fratella had not been previously disciplined for this particular type of misconduct and that her conduct posed no actual danger to others because her firearm was unloaded at the time.

Exceptions and cross-exceptions to the ALJ's initial decision were filed on behalf of both MCSO and Fratella. On April 18, 2012, the Commission issued a final decision in which it rejected the ALJ's recommendations and upheld both the infraction for the lack of security for the nurse, and its 180-day suspension, and Fratella's removal for the firearm infraction. Addressing the suspension first, the Commission stated:

[T]he Commission does not agree with the ALJ's finding that [Fratella]'s conduct and actions were proper while the nurse was attending to an inmate. The Commission reviewed the photos of the video surveillance tape of the incident and determined that [Fratella] was not a reasonable distance from the nurse. In this regard, [Fratella] acknowledged that she was required to be a reasonable distance from the nurse attending to inmates. However, it appears that [Fratella] sat at her desk, many feet from the nurse during the interactions with the first two inmates and only moved to closer proximity when the third inmate, and her sergeant, were present. Further, the Commission notes that [Fratella]'s actions placed the nurse at a substantial risk of harm. Had the inmate attacked the nurse, a significant injury could have been caused before [Fratella] would have been in a position to render aid. Accordingly, the Commission upholds the charges relating to that incident pertaining to [Fratella]'s interactions with the nurse.

Turning then to the firearm incident, the Commission concurred with the ALJ's factual findings and determination of the charges, but disagreed about the proper penalty. After noting that its review of the penalty is de novo and surveying the applicable case law, the Commission stated:

The official record in the instant matter reveals that [Fratella] has been employed since April 1997, and has incurred . . . . 22 disciplinary matters in a span of 13 years[, which] present a very poor disciplinary record. Additionally, the mere fact that the present misconduct might not exactly mirror prior offenses is not a mitigating factor. In examining the penalty for [Fratella]'s failure to remain at a reasonable distance from the nurse attending to an inmate, the Commission finds no reason for the reduction of the penalty. There are no mitigating factors present, as [Fratella] acknowledged that she was supposed to be a reasonable distance away. [Fratella]'s actions could have led to severe injuries or death to the nurse she was supposed to protect and the fact that no incident occurred is not a mitigating factor. Accordingly, when considering the appellant's actions and her deplorable disciplinary history, the Commission finds that a 180-day suspension for this incident is proper.

With regard to the penalty for the firearm incident, the Commission finds [Fratella]'s conduct to be extremely troubling and egregious. [Fratella] was ordered by her superior not to carry her belt with the firearm into muster. [Fratella] was told to either wear her belt with the firearm on her waist or to secure her firearm in a gun locker before muster. [Fratella] ignored this order. She placed her fellow officers in needless harm by not following orders. In a paramilitary organization such as a correctional facility, the need to follow orders and to practice proper firearm safety is paramount. The mere fact that no one was injured is inconsequential. Given the egregious nature of her offense and her prior disciplinary record, which includes three major disciplines, the Commission finds that the penalty of removal is proper for this infraction.

Accordingly, the Commission reinstated the charge regarding the nurse incident and the penalties imposed by MCSO. This appeal ensued.

On appeal, Fratella argues that the Commission's decision to suspend her for the nurse incident was arbitrary, capricious and unreasonable and should be reversed. She further contends that termination for the firearm infraction is disproportionate to the offense committed and should be reversed.

II.

We begin with a review of the well-established principles that guide our analysis. Appellate review of an administrative agency decision is limited. In re Herrmann, 192 N.J. 19, 27 (2007). A "strong presumption of reasonableness attaches" to the Commission's decision. In re Carroll, 339 N.J. Super. 429, 437 (App. Div.), certif. denied, 170 N.J. 85 (2001). Appellants have the burden to demonstrate grounds for reversal. McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 563 (App. Div. 2002); see also Bowden v. Bayside State Prison, 268 N.J. Super. 301, 304 (App. Div. 1993)(holding that "[t]he burden of showing the agency's action was arbitrary, unreasonable or capricious rests upon the appellant"), certif. denied, 135 N.J. 469 (1994).

Appellate courts generally defer to final agency actions, only "reversing those actions if they are 'arbitrary, capricious or unreasonable or [if the action] is not supported by substantial credible evidence in the record as a whole.'" N.J. Soc'y for the Prev. of Cruelty to Animals v. N.J. Dep't of Agric., 196 N.J. 366, 384-85 (2008) (alteration in original) (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980)). Under the arbitrary, capricious, and unreasonable standard, our scope of review is guided by three major inquiries: (l) whether the agency's decision is consistent with applicable law; (2) whether the decision is supported by substantial credible evidence in the record; and (3) whether in applying the law to the facts, the administrative agency clearly erred in reaching its conclusion. In re Stallworth, 208 N.J. 182, 194 (2011).

When an agency decision satisfies such criteria, we accord substantial deference to the agency's fact-finding and legal conclusions, acknowledging "the agency's 'expertise and superior knowledge of a particular field.'" Circus Liquors, Inc. v. Governing Body of Middletown Twp., 199 N.J. 1, 10 (2009) (quoting Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992)). We will not substitute our judgment for the agency's even though we might have reached a different conclusion. Stallworth, supra, 208 N.J. at 194; see also In re Taylor, 158 N.J. 644, 656-57 (1999)(discussing the narrow appellate standard of review for administrative matters).

Our deference to agency decisions "applies to the review of disciplinary sanctions as well." Herrmann, supra, 192 N.J. at 28. "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 (internal quotation marks omitted). "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.

Pursuant to the Administrative Procedure Act, N.J.S.A.52:14B-1 to -24, "an ALJ, who has been assigned to review a disputed matter involving a State agency, is charged with issuing a decision that contains recommended findings of fact and conclusions of law that are 'based upon sufficient, competent, and credible evidence.'" In re Taylor, 158 N.J. 644, 655 (1999)(quoting N.J.S.A.52:14B-10(c)). An ALJ's factual findings and legal conclusions, however, 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. In re Parlow, 192 N.J. Super. 247, 248 (App. Div. 1983). As the "primary factfinder," the agency has the "ultimate authority, upon a review of the record submitted by the ALJ[,] to adopt, reject or modify the recommended report and decision of the ALJ." N.J. Dep't of Pub. Advocate v. N.J. Bd. of Pub. Utils., 189 N.J. Super. 491, 507 (App. Div. 1983)(citing N.J.S.A.52:14B-10(c)). Nevertheless, where an agency head rejects or modifies an ALJ's findings of fact unrelated to issues of witness credibility, N.J.S.A.52:14B-10(c) provides that "the agency head shall state with particularity the reasons for rejecting the findings and shall make new or modified findings supported by sufficient, competent, and credible evidence in the record."

Applying these principles here, we discern no basis for disturbing the Commission's decision to suspend and remove Fratella from her position. The Commission explicitly rejected the ALJ's findings on the issue of security for the nurse, determining from the video surveillance that Fratella did not remain "a reasonable distance from the nurse attending to inmates." The Commission also stated that Fratella "acknowledged that she was required to be a reasonable distance from the nurse attending to inmates." The video and her acknowledgment provided ample evidence to support the Commission's findings.

With regard to the firearm incident, which was also captured on video, we give deference to the Commission's expertise on matters falling within its province. Gloucester Cnty. Welfare Bd. v. N.J. Civil Serv. Comm'n, 93 N.J. 384, 396 (1983). Also, it is well settled that "the importance of maintaining discipline" in a correctional facility, in light of "the danger which inheres when order and discipline are disrupted or destroyed in a prison," is a matter "peculiarly within the expertise of the corrections officials." Bowden, supra, 268 N.J. Super. at 305-06 (citing Henry, supra, 81 N.J. at 579).

The Commission's departure from the ALJ's penalty recommendation was adequately explained in accordance with N.J.S.A. 52:14B-10(c). Fratella, over the course of her career at MCSO, incurred a disciplinary record constituting twenty-two suspensions or written reprimands for various infractions. Though the ALJ concluded that removal was not warranted under circumstances where the instant misconduct was different from past offenses, the Commission was permitted to consider Fratella's prior infractions in determining the appropriate penalty here. See Stallworth, supra, 208 N.J. at 199 ("Even where the present conduct alone would not warrant termination, a history of discipline in the reasonably recent past may justify a greater penalty; the number, timing, or seriousness of the previous offenses may make termination the appropriate penalty.").

The Commission's decision is therefore supported by substantial and credible evidence in the record. Further, the penalties imposed do not "shock our judicial conscience." Consequently, there is no basis to intervene.

Affirmed.