DONJU FRAZIER v. NEW JERSEY STATE PRISON DEPARTMENT OF CORRECTIONS
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1239-16T3
DONJU FRAZIER,
Petitioner-Respondent,
v.
NEW JERSEY STATE PRISON,
DEPARTMENT OF CORRECTIONS,
Respondent-Appellant.
__________________________________
Argued February 27, 2018 – Decided March 16, 2018
Before Judges Fasciale and Moynihan.
On appeal from the Civil Service Commission,
Docket No. 2016-3665.
Christopher W. Weber, Deputy Attorney General,
argued the cause for appellant (Gurbir S.
Grewal, Attorney General, attorney; Melissa H.
Raksa, Assistant Attorney General, of counsel;
Christopher W. Weber, on the briefs).
Colin M. Lynch argued the cause for respondent
(Zazzali, Fagella, Nowak, Kleinbaum &
Friedman, attorneys; Colin M. Lynch, on the
brief).
PER CURIAM
The New Jersey State Prison, Department of Corrections (DOC)
appeals from an October 11, 2016 final agency decision by the New
Jersey Civil Service Commission (CSC) upholding an initial
decision by an administrative law judge (ALJ) reducing the removal
of Donju Frazier to a 120-day suspension. The DOC contends that
the ALJ improperly concluded that Frazier's conduct was not
criminal and did not require disclosure to the DOC; and improperly
modified Frazier's disciplinary penalty. We agree and vacate the
120-day suspension, and reinstate the original sanction of
removal.
The DOC employs Frazier as a Senior Corrections Officer.
While employed by the DOC, Frazier served as a soldier in the
United States Army National Guard. The incident that triggered
the DOC's investigation and disciplinary proceedings was Frazier's
discharge from the Army.
Following an investigation by DOC Special Investigation
Division (SID), the CSC issued a preliminary notice of disciplinary
action (PNDA), charging Frazier with conduct unbecoming a public
employee, N.J.A.C. 4A:2-2.3(a)(6); other sufficient cause,
N.J.A.C. 4A:2-2.3(a)(12); falsification, intentional misstatement
of material fact in connection with work, employment application,
attendance, or in any record, report, investigation or other
proceeding, Human Resources Bulletin (HRB) 84-17 as amended C-8;
2 A-1239-16T3
conduct unbecoming an employee, HRB 84-17 as amended C-11; and
violation of a rule, regulation, policy, procedure, order or
administrative decision, HRB 84-17 as amended E-1. After the
departmental hearing, the CSC issued a final notice of disciplinary
action (FNDA) sustaining all charges and imposing the sanction of
removal.
Frazier appealed and the matter was transmitted to the OAL
for a hearing. The ALJ issued an initial decision modifying the
penalty from removal to a 120-day suspension. The ALJ's decision
was later deemed adopted as the CSC's final agency decision,
pursuant to
N.J.S.A. 40A:14-204, due to a lack of quorum.1
We apply the standard of review announced in In re
Hendrickson,
451 N.J. Super. 262, 272-73 (App. Div.), certif.
granted,
231 N.J. 143 (2017), and will, in our limited role, affirm
an ALJ's findings if "they are supported by substantial credible
evidence in the record," but afford no deference to the ALJ's
legal conclusions and review them de novo. As in Hendrickson,
1
Following the filing of its initial notice of appeal, the DOC
moved before the CSC for a stay of the final decision, which the
CSC granted due to a clear likelihood of success on the merits.
Frazier moved this court to dissolve the CSC's stay, which we
denied. The CSC advised this court in August 2017 that it "lacked
a quorum to do business from January through October 2016," and
thus did not review the ALJ's initial decision nor the submitted
exceptions; and does not take a position on the merits of this
appeal.
3 A-1239-16T3
"when the lack of a quorum attributable to vacancies caused the
agency inaction, the current version of the deemed-adopted statute
does not require traditional deferential appellate review of the
ALJ's decision." Id. at 266. Without the CSC's review, there is
no existing "particular and superior expertise in the legislative
arena in which [the agency] functions." Id. at 273. Thus, we
apply, not the usual "highly deferential review of agency
decisions," but the less deferential bench trial standard of
review. Ibid.
Applying this standard of review, we turn first to the ALJ's
determination that Frazier's conduct was not criminal. During his
active duty tour with the Army, in December 2014, Frazier attended
a beach party in Qatar, along with other members of his platoon,
where soldiers were permitted a maximum of three alcoholic drinks,
policed on the honor system. Frazier violated this rule and became
intoxicated. While in-line for food, Frazier stood behind L.J.,2
a subordinate female solider, and touched her stomach, chest and
buttocks. Throughout the evening, Frazier proceeded to be
inappropriate with L.J., including unwanted touching and verbal
sexual advances.
2
We identify the victim by initials to protect her identity.
4 A-1239-16T3
The United States Army Criminal Investigation Command
(USACIC) investigated Frazier's conduct, and concluded that
probable cause existed for charges to be filed against Frazier
under the Uniform Code of Military Justice (UCMJ). Frazier
requested Chapter 10 Discharge in Lieu of Trial by Court-Martial
(Chapter 10 discharge), which the Army approved, resulting in the
charges being dismissed, and Frazier being reduced in rank and
discharged from the Army with a classification of other than
honorable conditions.
We conclude the evidence does not support the ALJ's
determination that Frazier's conduct was not criminal. The USACIC
is the Army's principal law enforcement agency responsible for
investigating criminal matters in the Army, and it specifically
investigated Frazier's conduct in December 2014. Frazier was
charged with crimes under the UCMJ, which governs criminal actions
in the military. A conviction for violations of the UCMJ can
result in serious sanctions and sentences of incarceration. See
10 U.S.C. §§ 855 to 858b. Frazier avoided court-martial
proceedings, and the risk of conviction and incarceration, by
requesting Chapter 10 discharge. Although Chapter 10 discharge
is an administrative function, the charges underlying it are not.
Frazier would not have been subject to court-martial proceedings
but for the probable cause finding of criminal conduct, and Chapter
5 A-1239-16T3
10 discharge specifically avoids court-martial proceedings. For
the ALJ to have found differently is erroneous.
Witness testimony does not support the ALJ's findings and
conclusion, although the ALJ found all witnesses, but L.J.,
credible.3 Major John Ciulla, the Chief of Military Justice at
Fort Jackson, South Carolina, testified that "because it’s a
[Chapter 10 discharge] . . . it has to have been a criminal
conduct, because . . . you wouldn't get a [Chapter 10 discharge]
if it wasn't something that you were going to get court martialed
for and that you could receive a bad conduct discharge for." The
ALJ ignored the judgment of military commanders who determined the
seriousness of Frazier's conduct and the necessity of court-
martial charges.
Furthermore, the ALJ improperly concluded that Frazier's
discharge was for intoxication and disorderly behavior, and not
3
The DOC does not challenge the ALJ's credibility findings, but
instead challenges the ALJ's failure to offer any reasons for
finding L.J. incredible coupled with the ALJ's determination that
Frazier's conduct was not criminal. L.J.'s testimony at the OAL
hearing is consistent with statements she made during the USACIC's
investigation, while Frazier had been untruthful at times and
described variations of the events. We recognize that credibility
determinations need not be articulated in all instances as long
as they are supportable by the record. State v. Locurto,
157 N.J. 463, 474 (1999). In this case, however, the ALJ's findings are
so divergent from the proofs that it was necessary that she provide
reasons for finding L.J. incredible. Without an explanation, and
without support by substantial credible evidence in the record,
we accord no deference to that credibility finding.
6 A-1239-16T3
for his sexual misconduct against L.J. The ALJ found that "the
papers do not specify which charge, nor do they indicate that such
action is tantamount to a plea of guilty to any criminal offense."
This finding is improper. The basis for the Army's investigation,
which resulted in Frazier's discharge, was for "a possible sexual
assault which occurred off-post in Qatar." The result of the
investigation was "probable cause to believe [Frazier] committed
the offense of Abusive Sexual Contact." The record does not
provide substantial credible evidence supporting the ALJ's
determination that Frazier's conduct was not criminal, but rather
supports that it was criminal.
Next, we turn to the DOC's contention that the ALJ improperly
found that Frazier did not fail to report his conduct to the DOC.
As a corrections officer, Frazier is held to a higher standard of
conduct than other public employees. In re Phillips,
117 N.J.
567, 576-77 (1990). In the course of his employment, Frazier had
been provided with HRB 84-19, dated April 3, 2000, receipt of
which he acknowledged. The bulletin required that: "Employees who
are summoned, arrested or incarcerated as a result of a crime or
an offense as defined by N.J.S.A. 2C, Criminal Justice Code of New
Jersey, must advise their superior as soon as possible, but not
more than [forty-eight] hours from the date of the summons, arrest
or incarceration." This requirement applies to "[s]uch matters
7 A-1239-16T3
which occur outside the jurisdiction of the State of New Jersey
. . . when the crime or offense meets the criteria in N.J.S.A. 2C,
Criminal Justice Code of New Jersey."
The ALJ found that the evidence demonstrated only that
military charges were brought against Frazier and dismissed, and
that the DOC failed to prove beyond a preponderance of the evidence
that Frazier was summoned, arrested or convicted under Title 2C.
The ALJ misapprehended the triggering events for the reporting
obligation. Frazier only had to be summoned, arrested or convicted
as a result of a crime or offense as defined by Title 2C. The ALJ
failed to complete this analysis.
Given the nature of Frazier's conduct, as a civilian, he
could have possibly been subject to prosecution and conviction for
aggravated criminal sexual contact,
N.J.S.A. 2C:14-3(a); criminal
sexual contact,
N.J.S.A. 2C:14-3(b); or assault,
N.J.S.A. 2C:12-
1. Frazier received a charge sheet following the USACIC's
investigation, a document similar in effect to a summons or
indictment. Had Frazier not been afforded Chapter 10 discharge,
he would have appeared for court-martial proceedings. As such,
Frazier's conduct required him to report the December 2014 incident
to the DOC. The DOC did not learn of the events leading to
Frazier's discharge until nearly one year after the incident –
well-beyond the forty-eight hour reporting requirement. Frazier
8 A-1239-16T3
did not follow the DOC's reporting requirement and the ALJ erred
in finding that he did not have to report the December 2014
incident.
Lastly, the ALJ abused her discretion in determining that
Frazier engaged in conduct unbecoming a public employee, yet
imposed a less severe discipline than originally imposed. "Conduct
unbecoming a public employee," N.J.A.C. 4A:2-2.3(a)(6), is an
"elastic" phrase encompassing "any conduct which adversely affects
. . . morale or efficiency . . . [or] which has a tendency to
destroy public respect for [public] employees and confidence in
the operation of [public] services," Karins v. Atl. City,
152 N.J. 532, 554 (1998) (third alteration in original) (quoting In
re Emmons,
63 N.J. Super. 136, 140 (App. Div. 1960)). Conduct
that "has the tendency to destroy public respect for [public]
employees and public confidence in the operation of" the public
entity is intolerable. Id. at 556-57.
The substantial credible evidence supports a finding that
Frazier violated the regulation by inappropriately touching L.J.;
however, it is unclear whether the ALJ relied on this evidence or
evidence of Frazier's intoxication in making her determination.
The ALJ should have considered all of the evidence, including
Frazier's sexual misconduct, in determining that he violated the
regulation.
9 A-1239-16T3
Frazier asserts that the ALJ properly applied the concept of
progressive discipline in reducing his penalty. "The concept of
progressive discipline has been employed to impose severe
disciplinary sanction when a public employee's misconduct is
habitual, or to mitigate a penalty. When employed to mitigate,
it results in incremental punishment." Hendrickson, 451 N.J.
Super. at 274 (citations omitted). However, it is not a
consideration "when the misconduct is severe, when it is
unbecoming to the employee's position or renders the employee
unsuitable for continuation in the position, or when application
of the principle would be contrary to the public interest." In
re Herrmann,
192 N.J. 19, 33 (2007). Additionally, "progressive
discipline has been bypassed when an employee engages in severe
misconduct, especially when the employee's position involves
public safety and the misconduct causes risk of harm to persons
or property." Ibid. "Termination has been affirmed where the
employee's conduct was unbecoming his or her position regardless
of a blameless work history." Hendrickson,
451 N.J. Super. at
275.
Here, Frazier's position with the DOC involves protecting
incarcerated individuals from victimization within correctional
facilities, N.J.A.C. 10A:1-1.1(a)(7), and protecting the public
by providing custody, care and discipline to incarcerated
10 A-1239-16T3
individuals, N.J.A.C. 10A:1-1.1(a)(1). Frazier's unbecoming
conduct, involving his sexual misconduct against L.J. and failure
to report, is at odds with his work responsibilities. The ALJ
improperly considered progressive discipline in reducing Frazier's
penalty in light of the record. The record indicates that Frazier
lacks the ability to adhere to rules and behave professionally;
and lacks candor and self-control. Frazier is a poor candidate
for incremental discipline and the ALJ abused her discretion in
ruling otherwise.
Reversed and the original sanction of removal is reinstated.
11 A-1239-16T3
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