IN THE MATTER OF JAMES WHITE CAMDEN COUNTY, DEPARTMENT OF CORRECTIONS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

IN THE MATTER OF JAMES WHITE

CAMDEN COUNTY, DEPARTMENT OF

CORRECTIONS

_______________________________

February 8, 2017

Submitted January 23, 2017 Decided

Before Judges Haas and Currier.

On appeal from the New Jersey Civil Service Commission, Docket No. 2013-1858.

William B. Hildebrand, attorney for appellant James White.

Christopher A. Orlando, County Counsel, attorney for respondent Camden County Department of Corrections (Joshua A. Friedman, Assistant County Counsel, and Emeshe Arz n, Assistant County Counsel, on the brief).

Christopher S. Porrino, Attorney General, attorney for respondent New Jersey Civil Service Commission (Pamela N. Ullman, Deputy Attorney General, on the statement in lieu of brief).

PER CURIAM

Appellant James White appeals from the May 7, 2015 final administrative decision of the Civil Service Commission ("Commission") upholding action taken by appellant's employer, the Camden County Correctional Facility ("CCCF"), to suspend appellant for six months without pay on charges of conduct unbecoming a public employee, neglect of duty, misuse of public property, and other sufficient cause constituting violations of the CCCF's policies. We affirm.

We derive the following procedural history and facts from the record developed during the two-day hearing conducted in the Office of Administrative Law ("OAL"). Appellant worked as a corrections officer at the CCCF. Inmates incarcerated at the CCCF are required to surrender their jewelry, cell phones, and other personal property upon admission to the facility. The CCCF inventories these items and places each inmate's property in an envelope with information about the contents written on each one. The CCCF also gives each inmate a signed receipt with "a brief description of all inventoried effects."

The CCCF's Commissary Department is responsible for safeguarding the inmates' belongings and it maintains these items in a property room. If an inmate is released from the CCCF and does not pick up his property, the Commissary Department maintains custody of it for at least thirty days. After that time, the CCCF may dispose of the property under the terms of General Order 30 ("G.O. 30").1 This order requires the Commissary Department to prepare a monthly report of the property "in need of disposal[,]" which it forwards to the Deputy Warden of Administration for review. "The Deputy Warden may then authorize disposal" of the property. G.O. 30 also states that "[a]bsent written authorization by the Warden or designee, the inmate's personal property shall be disposed of after [thirty] days of release."

Sometime in 2010, the Commissary Department fell behind in listing the inmate property in need of disposal and ran out of space in its own area to store it. Accordingly, some of the property was moved to a cabinet in the CCCF Admissions Department for safekeeping.

Appellant worked in the Admissions Department and was responsible for ordering supplies for that unit. Because appellant was not assigned to the Commissary Department, he had no responsibility for maintaining inmate property, determining whether it was in need of disposal, or actually disposing of it.

Nevertheless, appellant began asking several of his superior officers whether he could sell the property for cash and use the money to buy supplies for the Admissions Department. Appellant first asked the lieutenant in charge of the Admissions Department, and the lieutenant told appellant that he was not permitted to do so. Appellant later asked the lieutenant a second time and she again "told him no."

After that lieutenant was promoted to the rank of captain and left the Admissions Department, appellant asked the next lieutenant in charge of the Admissions Department for permission to sell the property. This lieutenant told appellant she would check with the Deputy Warden, who told her "no." The lieutenant relayed this information to appellant. In spite of the Deputy Warden's clear decision, appellant continued to ask the lieutenant if he could sell the property. Each time, the lieutenant told appellant that he was not allowed to do so.

Appellant also asked two sergeants in the Admissions Department for authorization to sell the inmate property. Each sergeant denied his request.

Finally, appellant asked another sergeant in the Admissions Department, who allegedly gave appellant "permission" to remove the property from the CCCF and sell it. On Sunday, October 16, 2011, the two men removed the envelopes containing the property from the Admission's Department supply cabinet. The men discarded the envelopes and all of the attached property identification information.

Appellant and the sergeant culled out the gold and silver jewelry, watches, chains, rings, and cell phones from the property and put these items into two gallon-sized plastic bags. Appellant then carried the bags to his personal vehicle and took them home. Appellant gave one of the bags to his wife, who took it to a jeweler with whom the couple had a personal relationship. Appellant took the other bag to another jeweler he knew. The two jewelers paid appellant a total of $2995 for the items. Although each jeweler gave appellant a receipt stating the total amount each paid for all of the jewelry appellant or his wife gave them, neither jeweler identified how many pieces of jewelry were purchased as part of the transaction, the type or weight of the jewelry, or any other description of the items involved in the sale.

A few days later, appellant told the lieutenant in charge of the Admissions Department that he and the sergeant had gone through the property and that appellant had taken the jewelry home. Appellant stated that he had already received approximately $1400 for the jewelry he sold, but had not yet gotten the money from the other jeweler for the items his wife sold. The lieutenant notified the Internal Affairs Department. Appellant eventually returned some of the property he took from the CCCF.

In November 2012, the CCCF charged appellant with conduct unbecoming a public employee, neglect of duty, misuse of public property, and other sufficient cause constituting violations of the CCCF's policies. Following a departmental hearing, the CCCF sustained the charges and suspended appellant for six months without pay. Appellant requested a hearing and the matter was referred to the OAL.

At the hearing, appellant admitted removing the jewelry from the inventory envelopes, disposing of the envelopes, taking the jewelry home, and then selling it. He claimed that he did so because "he had a lawful order from" the last sergeant he asked about the property. Appellant also alleged that the two lieutenants he asked about the property, the Deputy Warden, and between ten and twenty other supervisors he spoke to about his scheme "would not get back to" him and that "no one ever told [him] no" when he asked about selling the jewelry. Therefore, appellant thought he could simply take the inmates' property. Appellant also asserted that he was not aware of G.O. 30 or the need to keep the property secure until it was properly disposed of by the Commissary Department in accordance with the requirements of that order.

At the conclusion of the hearing, the Administrative Law Judge ("ALJ") rendered a thorough Initial Decision sustaining the charges and penalty. The ALJ found that the two lieutenants consistently told appellant he was not allowed to take and sell the property and that he ignored them. Therefore, the ALJ determined that appellant's claim that he never got an answer to his inquiries was simply not credible. The ALJ also rejected appellant's assertion that the sergeant "ordered" appellant to remove the property. Instead, the ALJ found that the two officers "acted in concert" to take and sell the property.

While the ALJ concluded that appellant's actions were not "criminally motivated," he found that appellant and the sergeant "took this action to create a slush fund to avoid the appropriate reimbursement of supply expenditures."2 By doing so, appellant demonstrated "a complete disregard of [the] property rights of the discharged inmates or the CCCF." As a result, the ALJ observed that CCCF was now "subject to exposure to inmates' claims" concerning the property. The ALJ also noted that appellant chose "business acquaintances" to sell the jewelry, and kept no record of what he took and what he sold. Under these circumstances, the ALJ determined that the six-month suspension imposed by the CCCF was appropriate.

Appellant filed exceptions to the ALJ's Initial's Decision. On May 7, 2015, the Commission accepted and adopted the ALJ's findings of fact and conclusions of law and, in a written order, affirmed the six-month suspension. This appeal followed.

On appeal, appellant argues that the record does not support the Commission's decision finding him guilty of the offenses charged and imposing a six-month suspension. We disagree.

Established precedents guide our task on appeal. Our scope of review of an administrative agency's final determination is limited. In re Herrmann, 192 N.J. 19, 27 (2007). "[A] strong presumption of reasonableness attaches" to the agency's decision. In re Carroll, 339 N.J. Super. 429, 437 (App. Div.) (quoting In re Vey, 272 N.J. Super. 199, 205 (App. Div. 1993), aff'd, 135 N.J. 306 (1994)), certif. denied, 170 N.J. 85 (2001). Additionally, we give "due regard to the opportunity of the one who heard the witnesses to judge . . . their credibility." In re Taylor, 158 N.J. 644, 656 (1999) (quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)).

The burden is upon the appellant 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). To that end, we will "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." In re Application of Virtua-West Jersey Hosp. Voorhees for a Certificate of Need, 194 N.J. 413, 422 (2008).

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. In re Stallworth, 208 N.J. 182, 194 (2011); see also Taylor, supra, 158 N.J. at 656-57 (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 (alteration in original) (quoting 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.

Applying these principles here, we discern no basis for disturbing the Commission's decision to sustain the charges and appellant's six-month suspension. Appellant was not even assigned to the CCCF Commissary Department, which was solely responsible for the maintenance of inmate property. The lieutenants he asked about his scheme to sell the inmates' property repeatedly told him he was not permitted to do so. Despite these clear directives, appellant and the sergeant removed the jewelry contained in the storage cabinet and destroyed the envelopes that documented the items they took. Appellant gave a portion of the jewelry to his wife and the couple then sold the jewelry to two of their personal business acquaintances without receiving any meaningful invoices in return. The ALJ specifically found that appellant's attempts to provide excuses for his misconduct were not credible and we defer to that determination. Taylor, supra, 158 N.J. at 656.

Thus, the Commission's decision is supported by substantial credible evidence in the record and, under the circumstances of this case, the penalty it imposed is certainly not "so disproportionate to the offense, in light of all the circumstances, as to be shocking to one's sense of fairness." Herrmann, supra, 192 N.J. at 28-29. We therefore affirm substantially for the reasons expressed by the Commission, which incorporated the detailed findings of fact and conclusions of law rendered by the ALJ in his well-reasoned written opinion.

Affirmed.

1 G.O. 30 was approved by the Warden of the Camden County Department of Corrections and the Camden County Board of Chosen Freeholders.

2 As part of a settlement of the charges against him, the sergeant involved in the scheme with appellant agreed to a demotion in rank and a one-month suspension.