IN THE MATTER OF JEFFREY BURDSALL

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0T2

IN THE MATTER OF JEFFREY

BURDSALL, JUDICIARY,

VICINAGE 15.

_________________________________________________

December 10, 2015

Argued December 1, 2015 Decided

Before Judges Fisher and Currier.

On appeal from the Civil Service Commission, CSC Docket Nos. 2011-2885 and 2013-1768.

Kevin P. McCann argued the cause for appellant Jeffrey Burdsall (Chance & McCann, L.L.C., attorneys; Beth White, on the brief).

Ione K. Curva, Deputy Attorney General, argued the cause for respondent New Jersey Judiciary, Vicinage 15 (John J. Hoffman, Acting Attorney General, attorney; Lisa A. Puglisi, Assistant Attorney General, of counsel; Ms. Curva, on the brief).

PER CURIAM

Appellant Jeffrey Burdsall has been employed by the Judiciary as a senior probation officer since 2002 and, at the time in question, was assigned to the Family Division. On September 21, 2010, Lois Diamond, the vicinage chief probation officer, sent an email to other vicinage probation officers, staff and supervisors in the Probation Division "in response to staff arriving later to work and as an effort to reiterate the importance of adherence to attendance and timekeeping policies and procedures." Appellant was not a recipient of this email because he was assigned to the Family Division, not the Probation Division; it was, however, forwarded to him by V.M., another employee assigned to the Probation Division. In forwarding the email to appellant, V.M. included an additional message to appellant about D.K., one of the original recipients of Diamond's email

WOW, and yet [D.K.] is never here and there is no way to account for all the time he takes (who knows if it is being documented or not) and when he is here he walks around chatting with his favorite officers about personal crap for extended periods of time.

Appellant sent the following email to Diamond and many others, on September 22, 2010

Thank[] you for responding so quickly with regards to this issue. I have discussed the matter with Debbie and she has informed me of your discussions with her. We will be back in touch with you [in] regard[] to a date to meet on this issue and other outstanding situations. I have received other e-mails regarding supervisors i.e. ([D.K.]) being [i]nattentive with time (socializing). My concern is that are [sic] supervisors subject to coaching as well, and if they are really taking time. I appreciate the response and the reference to super-visors and managers and feel this has helped the situation immensely. Debbie and I will be in touch to set up a date to attempt to resolve all outstanding issues. Thank you for all your efforts on this matter.

Appellant placed his name at the end of the email and identified himself as shop steward for PANJ, the Probation Association of New Jersey. Despite this suggestion that he was addressing this as a union matter, appellant also sent the email to probation officers who were not members of the union.

D.K. immediately complained about appellant's email, and after an investigation, appellant was charged with conduct unbecoming a public employee, N.J.A.C. 4A:2-2.3(a)(6), and given a fifteen-day suspension. He appealed, and the matter was transferred to the Office of Administrative Law. After a two-day hearing and the submission of written arguments, the administrative law judge recommended dismissal of the charges. The Judiciary filed exceptions, and appellant responded.

The Civil Service Commission accepted and adopted the ALJ's findings of fact but rejected the ALJ's recommendation that the charges be dismissed. Despite upholding the charge of conduct unbecoming a public employee, the Commission found a fifteen-day suspension to be unjustified and imposed an official written reprimand, the mildest form of discipline, N.J.A.C. 4A:2-3.

In seeking our review, appellant argues that the final agency decision should be vacated and the charges dismissed because: (1) the sending of the email was a protected union activity; (2) the Commission "did not follow the law"; (3) the record lacked substantial evidence to support the findings; (4) the conclusion reached by the Commission was unreasonable; and (5) "[t]he punishment is shocking to one's sense of fairness." We find these arguments to be of insufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E). We add only the following brief comments.

In rejecting the arguments that the Commission's determination was unreasonable, that the decision lacked factual support, or that appellant was merely acting in his capacity as shop steward, we observe that the Commission properly focused on appellant's "superfluous inclusion" of D.K.'s name in the email in question and the fact that appellant's email was sent to both union and non-union officers. These circumstances belie any suggestion that appellant did not single out D.K. for harassment or that appellant was merely acting in his capacity as a shop steward in sending the email. Moreover, as the Commission noted in its written decision, even if appellant intended to pursue an issue of importance to the union, he showed poor judgment "in needlessly including [D.K.'s] name in his widely-circulated email."

Our familiar standard of review precludes intervention at this stage absent a clear showing that the final agency decision is arbitrary, capricious or unreasonable, or that it lacks fair support in the record. In re Stallworth, 208 N.J. 182, 194 (2011); In re Herrmann, 192 N.J. 19, 27-28 (2007). Having closely examined the record in light of the issues posed, we conclude that the Commission's determination was well-supported by the evidence and was fair and reasonable.

Affirmed.