IN THE MATTER OF PETER FARLOW, CAMDEN COUNTY CORRECTIONAL FACILITY

NOT FOR PUBLICATION WITHOUT THE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-5617-15T1


IN THE MATTER OF PETER
FARLOW, CAMDEN COUNTY
CORRECTIONAL FACILITY.
______________________________

                   Argued December 5, 2018 – Decided January 24, 2019

                   Before Judges Reisner and Mawla.

                   On appeal from the New Jersey Civil Service
                   Commission, Docket No. 2015-2246.

                   Stuart J. Alterman argued the cause for appellant Peter
                   Farlow (Alterman & Associates, LLC, attorneys; Stuart
                   J. Alterman, of counsel and on the brief; Arthur J.
                   Murray, on the brief).

                   Howard L. Goldberg, First Assistant County Counsel,
                   argued the cause for respondent Camden County
                   Correctional Facility (Christopher A. Orlando, County
                   Counsel, attorney; Howard L. Goldberg, on the brief).

                   Respondent Civil Service Commission has not filed a
                   brief.1


1
  The Commission filed a letter stating that it took no position on the merits of
the appeal.
PER CURIAM

      Peter Farlow appeals from a final administrative action of the Civil

Service   Commission     (Commission),      approving    his   termination      from

employment by the Camden County Correctional Facility (CCCF or employer)

for conduct unbecoming a public employee, N.J.A.C. 4A:2-2.3(a)(6),

discrimination that affects equal employment opportunity, including sexual

harassment, N.J.A.C. 4A:2-2.3(a)(9), and other sufficient cause, N.J.A.C. 4A:2-

2.3(a)(12). After a lengthy administrative hearing, an administrative law judge

(ALJ) credited testimony from the employer's witnesses. Although Farlow

denied all of the charges, the ALJ found that Farlow's testimony was not

credible. The ALJ found that Farlow committed the misconduct with which he

was charged, and he recommended termination from employment as the

appropriate penalty. Lacking a quorum, the Commission could not vote on

whether to adopt or reject the initial decision, and as a result, the decision was

deemed adopted. See  N.J.S.A. 52:14B-10(c); In re Hendrickson,  235 N.J. 145,

153-54 (2018).

      On this appeal, Farlow presents the following points of argument:

            I.  EVEN ASSUMING ARGUENDO THE BONA
            FIDES OF THE SUSTAINED DISCIPLINE
            AGAINST FARLOW, REMOVAL, AS FOUND BY
            THE ALJ, WAS INAPPROPRIATE UNDER THE

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CIRCUMSTANCES AND WAS AN AFFRONT TO
NEW JERSEY'S LONG HELD JURISPRUDENCE OF
PROGRESSIVE DISCIPLINE.

II. THE ALJ ERRED AS A MATTER OF LAW IN
DETERMINING    THAT   CCCF   WAS   NOT
REQUIRED TO ADOPT THE NEW JERSEY
ATTORNEY     GENERAL    GUIDELINES  ON
INTERNAL POLICIES AND PROCEDURES.

III. THE ALJ ERRED AS A MATTER OF LAW IN
FINDING THE SPECIFICATIONS LEVIED BY
CCCF AGAINST FARLOW WERE ADEQUATE.

IV. THE ALJ ERRED AS A MATTER OF LAW IN
FAILING TO DISMISS THE DISCIPLINARY
CHARGES LEVIED AGAINST FARLOW WHEN IT
WAS ESTABLISHED THAT CCCF HAD NOT
ADOPTED THE NEW JERSEY ATTORNEY
GENERAL GUIDELINES ON INTERNAL AFFAIRS
POLICIES AND PROCEDURES COUPLED WITH
THE LACK OF DETAIL IN CCCF'S PURPORTED
SPECIFICATIONS.

V.  THE ALJ ERRED AS A MATTER OF LAW BY
DENYING DISMISSAL OF THE CHARGES LEVIED
AGAINST FARLOW BASED UPON CCCF'S
BLATANT VIOLATION OF THE 45-DAY RULE.

VI. THE ALJ ERRED AS A MATTER OF LAW IN
CONSIDERING TWO ALLEGED CLAIMS OF
HARASSMENT      AND    HOSTILE    WORK
ENVIRONMENT (ALJ FINDING OF FACT #8 AND
#13) BASED ON HEARSAY.

VII. THE  ALJ  DENIED   FARLOW   A
FUNDAMENTAL    FAIRNESS   BY   NOT
CONSIDERING ANY OF THE EXHIBITS HE

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            MOVED INTO EVIDENCE IN RENDERING HIS
            INITIAL DECISION, WHICH BECAME THE FINAL
            DECISION.

            VIII. THE ALJ'S FACTUAL FINDINGS ARE NOT
            SUPPORTED BY SUBSTANTIAL CREDIBLE
            EVIDENCE.

We find no merit in any of those arguments, and we affirm.

      We begin by addressing Farlow's first and last points of argument. After

reviewing the record, we find no basis to second-guess the ALJ's evaluation of

witness credibility, and we conclude that his factual findings are supported by

substantial credible evidence.    See Lavezzi v. State,  219 N.J. 163, 171-72

(2014). The hearing testimony is outlined at length in the initial decision and

need not be repeated in detail here. For purposes of this appeal, a summary of

the ALJ's factual findings will suffice.

      Between November 2012 and December 2013, Farlow, a corrections

lieutenant, made various inappropriate comments to a subordinate, a female

officer named D.H.2 He made sexual references to her anatomy, subjected her

to crude insults, and made a comment about her sexual relationship with her




2
  The employees' names are not germane to our decision, and we use initials to
protect their privacy.
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husband. D.H. did not file complaints about these comments, because Farlow

led her to believe that he had a close relationship with one of the deputy wardens.

        Between February 2013 and February 2014, Farlow had several

inappropriate interactions with another female officer, S.R. According to S.R.,

Farlow touched her hair without her consent and made comments to S.R.'s co-

workers about her body. Those comments referred to a photograph, from her

personal Facebook page, of S.R. wearing a bathing suit. Farlow also made

demeaning remarks about other officers in front of S.R., referring to them as

"pieces of shit." S.R., who was a probationary employee at the time, did not file

complaints about this behavior because she was afraid that it would negatively

affect her prospects for continued employment with CCCF.

        Between March 2013 and March 2014, Farlow subjected a female officer,

J.D., to descriptions of his sex life, including his marital infidelities, and asked

her if women liked men who performed oral sex. During this time, Farlow also

referred to other officers as "pieces of shit" in front of J.D., and he told other

officers that J.D. "slept with most of the guys in the department." J.D., who was

also a probationary employee, did not file complaints, fearing that she would

not be retained after her probationary year. 3


3
    Witnesses also referred to the probationary year as the working test period.
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      Between March 2012 and March 2014, Farlow made a litany of

inappropriate comments to A.C., a female officer. He made comments about

S.R.'s bathing suit photo, stated that J.D. was the "biggest whore in the jail," and

said that J.D. had performed oral sex on another officer. Farlow also told A.C.

that he had received oral sex from a woman in an elevator during a sports

tournament. Farlow commented to A.C. that a male officer, W.R., "look[ed]

gay" because of his physical appearance. A.C. did not file complaints about

these incidents due to fear of retaliation.

      According to W.R., Farlow yelled at him in front of inmates and demeaned

him. Farlow called W.R. a "piece of shit." On one occasion, Farlow entered an

office occupied by W.R. and said he "smelled shit." Like the other officers,

W.R. did not file a complaint due to fear that it would affect his employment

status.

      On July 25, 2014, in the presence of J.V., a male sergeant, Farlow told a

female officer, A.B., that Farlow would like to see J.V. "push you up against the

wall and kiss the back of your neck." Farlow told A.B. not to tell her husband,

who was also a corrections officer.

      Farlow received training on sexual harassment, diversity, ethics, and

respect in the work place in 2013 and 2014. Previously, Farlow had received


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training on hostile work environments, harassment, quid pro quo harassment,

and sexual harassment policy and procedures.

      The ALJ determined that Farlow's conduct "revealed a complete disregard

of the profession[al] manner in which a superior officer should comport his

actions. His actions sexually harassed the women assigned to his shift . . . . [His

actions left] the CCCF subject to exposure to claims based on a hostile work

place or sexual harassment." The ALJ concluded that the CCCF had met its

burden of proof and termination of employment was an appropriate penalty.

      The ALJ's factual findings are amply supported by the record. In light of

those findings, we find no legal error in the decision that termination was the

appropriate penalty. Our standard of review is whether the penalty "shocks one's

sense of fairness." Hendrickson,  235 N.J. at 150. We conclude it does not.

      Farlow engaged in a pattern of unprofessional and demeaning behavior

toward his subordinates, most of whom were probationary employees who felt

powerless to complain about his conduct. Moreover, his prior disciplinary

record reflected four violations for conduct unbecoming a public employee

between 2006 and 2009. Each of those violations resulted in a suspension

ranging from two days to ninety days.          Two of the violations involved

unprofessional comments, including an instance where Farlow was disciplined


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for telling a female co-worker that she had "a flabby ass." Farlow's disciplinary

history gave him ample notice that future incidents of inappropriate and

unprofessional behavior would be the basis for further disciplinary action, but

he continued to engage in that type of behavior.         Farlow's conduct was

particularly egregious in light of his position as the disciplinary lieutenant on

his shift at CCCF. His misconduct was also severe, because it potentially

exposed CCCF to hostile work environment and sexual harassment claims.

      While we find that the employer followed principles of progressive

discipline here, termination would have been appropriate in any case. "[N]either

this court nor our Supreme Court 'regard[] the theory of progressive discipline

as a fixed and immutable rule to be followed without question.'" In re Restrepo,

 449 N.J. Super. 409, 425 (App. Div.) (alteration in original) (quoting In re

Carter,  191 N.J. 474, 484 (2007)), certif. denied,  230 N.J. 574 (2017).

"[P]rogressive discipline is not a necessary 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). Those considerations apply here.




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      Farlow's remaining appellate arguments are without sufficient merit to

warrant discussion beyond the following brief comments.           See    R. 2:11-

3(e)(1)(E).

      Contrary to Farlow's argument, the charges were not untimely under

 N.J.S.A. 30:8-18.2, which requires that charges be filed no later than forty-five

days after the employer "obtain[s] sufficient information" on which to base the

complaint. As a matter of fairness and good management practice, the warden

ordered a thorough internal investigation before deciding whether disciplinary

charges were warranted. The charges were filed within forty-five days of the

date on which the warden received the internal investigation report.

      CCCF was not required to follow the Attorney General's (AG's) guidelines

for law enforcement agencies conducting internal affairs investigations. See

 N.J.S.A. 40A:14-181 (mandanting that "[e]very law enforcement agency" adopt

guidelines consistent with the AG's guidelines). Those guidelines do not apply

to corrections facilities. Office of the N.J. Attorney Gen., Div. of Criminal

Justice, Internal Affairs Policy & Procedures 5 (last updated Nov. 2017),

https://www.nj.gov/oag/dcj/agguide/internalaffairs2000v1_2.pdf          ("[C]ounty

correctional agencies . . . are under no obligation to implement the provisions of




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this policy."). 4 Moreover, Farlow had notice of the charges against him well in

advance of the hearing before the ALJ.       Prior to the hearing, Farlow was

provided with discovery, including the internal investigative report and the

written statements of the witnesses interviewed during the investigation. In fact,

he admitted that he was given copies of the witness statements prior to his

departmental hearing at CCCF.

      Affirmed.




4
  Farlow's counsel spent extensive amounts of time cross-examining witnesses
about the procedures CCCF followed in conducting the internal investigation.
As a result, a relatively straightforward case involving employee misconduct
occupied fifteen days of hearings.
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