IN THE MATTER OF MARION WILSON, 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NOT FOR PUBLICATION WITHOUT THE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-4951-16T3

IN THE MATTER OF MARION
WILSON, CAMDEN COUNTY,
DEPARTMENT OF CORRECTIONS.
________________________________

                Submitted January 24, 2019 – Decided February 8, 2019

                Before Judges Vernoia and Moynihan.

                On appeal from the New Jersey Civil Service
                Commission, Docket No. 2017-74.

                William B. Hildebrand, attorney for appellant Marion
                Wilson.

                Christopher A. Orlando, Camden County Counsel,
                attorney for respondent Camden County Department of
                Corrections (Howard L. Goldberg, First Assistant
                County Counsel, on the brief).

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

PER CURIAM
      Marion Wilson, a corrections officer with the Camden County Department

of Corrections (CCDC), appeals from a June 7, 2017 final agency decision of

the Civil Service Commission. The Commission adopted the initial decision of

the administrative law judge (ALJ), entered after a hearing, upholding the

CCDC's decision to demote Wilson from sergeant to corrections officer based

on her admitted violations of various rules, procedures and standards in her role

as a supervisor on September 10, 2015. 1

                                       I.

      Wilson does not challenge the Commission's adoption of the ALJ's

findings of fact. The ALJ found that on September 10, 2015, Wilson was

assigned duties as a supervisor of a "special needs/high risk unit" in the Camden

County Correctional Facility. Various written directives pertaining to the unit

require that corrections officers conduct "[c]lose [w]atch checks" of the inmates

in the unit "every [five] minutes" and record the inmates' names and the times

the checks were conducted in a logbook. The directives further require that the

assigned supervisors who are on duty when the checks are made review and sign


1
   The Commission also adopted the ALJ's decision imposing a five-day
suspension for Wilson's December 7, 2015 violation of the CCDC's General
Orders #001, #073 and #074 by posting inappropriate comments in "pass on"
books used by the CCDC's staff in the Camden County Correctional Facility.
Wilson does not appeal that portion of the Commission's final agency decision.
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the logbooks. The logbook entries must be "turned in with the daily paperwork

for each shift."

      The ALJ further found that on September 10, 2015, Wilson signed

paperwork showing two corrections officers conducted close watch checks

while Wilson was present in the unit, but a video recording revealed the officers

never conducted the checks.2       That same day, immediately after it was

determined the close watch checks had not been conducted, Wilson was directed

to turn over her "tour notes and post logs" from that morning, but she said she

did not have a post log and had thrown her tour notes in the garbage. Wilson's

trash was collected but no tour notes were found.

      The evidence showed Wilson was in charge of the unit, responsible for

ensuring the corrections officers followed the required protocols and conducted

the close watch checks, and Wilson's actions constituted serious infractions in

violation of clear directives that caused a loss of confidence in Wilson as a

supervisor. A CCDC captain testified that she "felt that a demotion . . . was a

fair recommendation of discipline" because Wilson's "actions and [the]



2
  The evidence also showed Wilson signed a logbook page that was blank. That
is, as the supervisor with the responsibility for signing off on the corrections
officers' entries documenting their close watch checks, Wilson signed a logbook
page before the officers had actually made any of their entries.
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                                       3
[o]fficers not doing their [checks] in a [m]ental [h]ealth area . . . was dereliction

of her duties." The captain testified she "could not trust [Wilson] to supervise

staff" and "[does] not have confidence that [Wilson] could do her job as a

[s]upervisor."

      The ALJ found Wilson committed each of the numerous offenses for

which she was charged: failure to perform her duties, N.J.A.C. 4A:2-2.3(a)(1);

insubordination, N.J.A.C. 4A:2-2.3(a)(2); conduct unbecoming a public

employee, N.J.A.C. 4A:2-2.3(a)(6); neglect of duty, N.J.A.C. 4A:2-2.3(a)(7);

other sufficient cause, N.J.A.C. 4A:2-2.3(a)(12); and violating the Camden

County Correctional Facility Rules of Conduct 1.1, violations in general; 1.2,

conduct unbecoming; 1.3, neglect of duty; 1.4, insubordination; 2.10,

inattentiveness to duty; 3.1, supervision; 3.2, security; and 3.6, departmental

reports, and Camden County Correctional Facility General Orders #073 and

#074 and Supervisor General Order #001.

      The ALJ noted that Wilson did not dispute that she committed the offenses

charged and challenged only the reasonableness of the demotion as a sanction.

The ALJ noted Wilson's prior disciplinary history, consisting of "several similar

offenses committed within the preceding seventeen years," and including seven




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similar offenses and "approximately nine" instances of "minor disciplinary

charges" within the previous seven years.

      The ALJ considered the concept of progressive discipline and explained

that a "failure to adhere to security precautions" in a correctional facility "could

have potentially serious consequences, which may give rise to a more serious

penalty regardless of the lack of any past disciplinary consequences." The ALJ

further found Wilson's offenses were "critical to [the] security and safety of

inmates and fellow employees." The ALJ rejected Wilson's contention that

demotion was too severe a sanction because it would impact Wilson 's pension

benefits when she retired, finding the argument "fallacious" because it ignored

that the CCDC's "utmost concern" is to provide a safe and secure facility for the

inmates and staff.

      As noted, the ALJ concluded the demotion of Wilson was appropriate

under the circumstances presented. In its final agency decision, the Commission

adopted the ALJ's findings and recommendation. This appeal followed.

                                        II.

      On appeal, Wilson does not contest the Commission's determination that

she committed the various offenses with which she was charged. She focuses

solely on the discipline imposed and argues the demotion is too harsh. She


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reprises her claim that the demotion will have a substantial impact on the

pension benefits she will receive during her retirement. 3 Having reviewed the

record and those arguments in light of applicable law, we affirm.

        Our review of administrative agency actions is limited. In re Herrmann,

 192 N.J. 19, 27 (2007). We will not upset an agency's final quasi-judicial

decision absent a "clear showing that it is arbitrary, capricious, or unreasonable,

or that it lacks fair support in the record." Id. at 27-28. This same deferential

standard applies to our review of the agency's choice of a disciplinary sanction.

Id. at 28. We "accord substantial deference to an agency head's choice of remedy

or sanction." Id. at 34-35 (quoting Div. of State Police v. Jiras,  305 N.J. Super.
 476, 482 (App. Div. 1997)).

        We review discipline only to determine whether the "punishment is so

disproportionate to the offense, in the light of all of the circumstances, as to be

shocking to one's sense of fairness." In re Stallworth,  208 N.J. 182, 195 (2011)

(citation omitted). Moreover, as our Supreme Court has "cautioned, courts

should take care not to substitute their own views of whether a particular penalty

is correct for those of the body charged with making that decision." In re Carter,

 191 N.J. 474, 486 (2007).


3
    The record reflects that Wilson retired on March 1, 2017.
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      Measured against this standard, we find no basis to reverse the ALJ's

findings and conclusion, which the Commission adopted. Our review makes

plain the Commission's decision is supported by sufficient credible evidence and

that the demotion is justified. Id. at 484; see R. 2:11-3(e)(1)(D). Wilson's

conduct related directly to her supervisory duties as a sergeant, constituted a

violation of clear and unequivocal directives related to the performance of her

duties and had the potential to affect the safety and security of high-risk inmates

and the corrections officers under Wilson's supervision. In addition, Wilson not

only neglected her clearly defined supervisory job responsibilities, she

intentionally created the false impression that two corrections officers she was

charged with supervising performed duties when they had not.

      We reject Wilson's contention the demotion is inconsistent with the notion

of progressive discipline. There is no requirement that progressive discipline be

imposed in every case. Herrmann,  192 N.J. at 33. It is inapplicable "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." Ibid. Here,

the evidence supports the Commission's finding that Wilson's conduct

demonstrated she was unsuitable to continue in her role as a supervisor and her


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                                        7
continuation in a supervisory position was inimical to the safety and security of

the inmates and staff.

      Given the circumstances presented, and Wilson's prior disciplinary

history, the demotion does not "shock[] . . . [our] sense of fairness," Stallworth,

208 at 195 (quoting Carter,  191 N.J. at 484), and we find no basis warranting

reversal of the Commission's decision. Wilson's remaining arguments to the

contrary, including her claim the demotion is too harsh because it will result in

a reduction in her pension benefits, are without sufficient merit to warrant

discussion in a written opinion. See R. 2:11-3(e)(1)(E). Affirmed.




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