In the Matter of William R. Hendrickson, Jr., Department of Community Affairs

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Justia Opinion Summary

William Hendrickson, Jr. worked as a fire safety inspector with the Department of Community Affairs. While on duty, he uttered an obscene and belittling remark about a female supervisor overheard by two of his colleagues. The DCA brought three disciplinary charges against Hendrickson. In September 2014, after a departmental hearing on the disciplinary charges, the DCA issued an order terminating Hendrickson’s employment. The ALJ held that Hendrickson uttered a gender slur in a workplace environment and therefore violated the State’s policy prohibiting gender discrimination and engaged in conduct unbecoming a public employee. Although the ALJ was troubled by Hendrickson’s failure to acknowledge his wrongdoing, she reasoned that removal was “too harsh” a punishment given Hendrickson’s lack of a disciplinary record in the fifteen months before and nine months after the incident. She instead ordered Hendrickson suspended for six months. The ALJ forwarded the decision to the Civil Service Commission, and both parties filed exceptions. Hendrickson argued that the discipline was too severe, and the DCA argued that termination was the appropriate punishment. Failing to reach a quorum, the ALJ's decision was deemed adopted by the Civil Service Commission. The Appellate Division reversed the ALJ’s decision and reinstated the DCA’s termination of Hendrickson’s employment, acknowledging the ALJ’s decision “was 'deemed-adopted’ as the Commission’s final decision. Nevertheless, the panel held that because the vacancies on the Commission disabled it from forming a quorum and acting, “the deemed-adopted statute does not require traditional deferential appellate review of the ALJ’s decision.” The New Jersey Supreme Court determined the Appellate Division erred in suggesting appellate review of a disciplinary sanction imposed by a judge was de novo and different from traditional appellate review of an agency determination. Consequently, and based on a deferential standard of review, the Supreme Court could not conclude the ALJ's decision was shocking to a sense of fairness, and affirmed the ALJ's decision.

SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of
the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the
Court. In the interest of brevity, portions of any opinion may not have been summarized.)

   In the Matter of William R. Hendrickson, Jr., Department of Community Affairs
                                 (A-12-17) (079885)

Argued April 9, 2018 -- Decided September 18, 2018

ALBIN, J., writing for the Court.

        Under  N.J.S.A. 52:14B-10(c), when an agency, such as the Civil Service
Commission, does not modify or reject the decision of an administrative law judge within a
prescribed period, “the decision of the administrative law judge shall be deemed adopted as
the final decision of the head of the agency.” This appeal raises the following question:
What is the judicial standard of review when the disciplinary decision of the administrative
law judge (ALJ) is deemed adopted by the Civil Service Commission (the Commission)
because the political branches did not appoint a sufficient number of Commissioners to form
a quorum to review the decision?

        William R. Hendrickson, Jr., began his employment as a fire safety inspector with the
Department of Community Affairs (DCA) in August 2012. While on duty on December 1,
2013, Hendrickson uttered an obscene and belittling remark about a female supervisor
overheard by two of his colleagues. The DCA brought three disciplinary charges against
Hendrickson. In September 2014, after a departmental hearing on the disciplinary charges,
the DCA issued an order terminating Hendrickson’s employment. Hendrickson appealed to
the Commission, and his matter was transmitted to the Office of Administrative Law (OAL)
for an evidentiary hearing.

        The ALJ held that Hendrickson uttered a gender slur in a workplace environment and
therefore violated the State’s policy prohibiting gender discrimination and engaged in
conduct unbecoming a public employee. She found that Hendrickson became angry at his
supervisor, Senior Inspector Knight, when he received her work order, and out of her
presence, “in a loud voice [Hendrickson] called [Knight] a 'c**t,’” a remark overheard by
two coworkers. According to the ALJ, the use of the gender slur was “disrespectful, sexist,
discriminatory, unprofessional, in bad taste, improper, and extremely offensive.” Such
disparaging language, the ALJ noted, has the capacity to undermine workplace morale and,
in this case, may have been overheard by members of the public.

        Although the ALJ was troubled by Hendrickson’s failure to acknowledge his
wrongdoing, she reasoned that removal was “too harsh” a punishment given Hendrickson’s
lack of a disciplinary record in the fifteen months before and nine months after the incident.
She instead ordered Hendrickson suspended for six months.
                                                1
        The ALJ forwarded the decision to the Civil Service Commission, and both parties
filed exceptions. Hendrickson argued that the discipline was too severe, and the DCA argued
that termination was the appropriate punishment.

       In accordance with  N.J.S.A. 52:14B-10(c), the Commission had forty-five days to
“adopt, reject or modify” the ALJ’s findings and render a final decision.  N.J.S.A. 11A:2-3
provides that the Commission “shall consist of five members” and that three members “shall
constitute a quorum.” The Commission, however, did not have a sufficient number of
appointed Commissioners to form a quorum. Without a quorum, the Commission could not
operate to adopt, reject, or modify the ALJ’s decision.

        Because the Commission did not and could not modify or reject the ALJ’s report
within the prescribed period, the ALJ’s decision was “deemed adopted as the final decision
of the head of the agency.” See  N.J.S.A. 52:14B-10(c). The DCA appealed the
Commission’s final agency decision to the Appellate Division. The contested issues
concerned the quantum of discipline imposed by the ALJ and the level of deference that
should be afforded to an ALJ’s deemed-adopted decision by a reviewing court.

        The Appellate Division reversed the ALJ’s decision and reinstated the DCA’s
termination of Hendrickson’s employment.  451 N.J. Super. 262, 266 (App. Div. 2017). The
panel acknowledged that the ALJ’s decision “was 'deemed-adopted’ as the Commission’s
final decision.” Ibid. Nevertheless, the panel held that because the vacancies on the
Commission disabled it from forming a quorum and acting, “the deemed-adopted statute
does not require traditional deferential appellate review of the ALJ’s decision.” Ibid. In
rejecting agency deference as its approach, the panel instead resorted to “the equally familiar
standard of review for bench trials.” Id. at 273. In doing so, it stated that it would affirm the
ALJ’s factual findings “to the extent they are supported by substantial credible evidence in
the record,” but accord no deference to and review de novo the ALJ’s legal conclusions.
Ibid. It determined that the ALJ’s factfindings were “supported by the record” but that “the
propriety of the disciplinary sanction” was “a question of law” subject to de novo review. Id.
at 274. The panel concluded, as a matter of law, that “the doctrine of progressive discipline
should be bypassed” because “[t]he incident violated the State’s anti-discrimination policy
and societal norms,” thus justifying the reinstatement of Hendrickson’s termination. Ibid.

       The Court granted Hendrickson’s petition for certification.  231 N.J. 143 (2017).

HELD: The appellate tests for reviewing an administrative disciplinary sanction and a criminal
sentence are virtually the same. Therefore, the Appellate Division erred in suggesting that
appellate review of a disciplinary sanction imposed by a judge is de novo and different from
traditional appellate review of an agency determination. Additionally, merely because the
factual findings and rulings made by ALJs are oftentimes contingent on whether an agency
accepts, rejects, or modifies an ALJ’s decision does not mean that ALJs are second-tier players
or hold an inferior status as factfinders. Based on its deferential standard of review, the Court
cannot conclude that the ALJ’s decision is shocking to one’s sense of fairness.

                                               2
1.  N.J.S.A. 52:14B-10 generally sets forth the procedures for resolving contested agency
cases submitted to the OAL. The current version of subsection (c) is the product of a 2014
amendment that set a strict deadline for administrative agencies to “adopt, reject or modify”
an ALJ’s decision -- unless all the parties agreed to an extension. Ibid. Under the
amendment, when the agency does not act within the forty-five-day statutory timeframe -- or
within the single extension period not to exceed forty-five days -- the ALJ’s decision is
“deemed adopted as the final decision of the head of the agency.” Ibid. In this way, the
Legislature ensured that there would always be a timely final agency decision. (pp. 14-15)

2. Traditionally, courts give substantial deference to an agency’s imposition of a disciplinary
sanction, based on its “expertise and superior knowledge of a particular field.” In re
Herrmann,  192 N.J. 19, 28 (2007). “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. In the present case, the Appellate Division held that a
different standard of review should apply to an ALJ’s disciplinary decision that becomes a
final agency determination because the Commission was unable to form a quorum to act.
The panel opted to apply the standard of review for bench trials and declared that it would
defer to the ALJ’s factfindings, but not to the ALJ’s conclusions of law. The panel evidently
classified the ALJ’s disciplinary sanction as a legal conclusion and therefore erroneously
engaged in a de novo review. An abuse of discretion standard, however, applies to the
judicial imposition of a sentence, State v. Roth,  95 N.J. 334, 364-65 (1984), or a disciplinary
sanction, In re Herrmann,  192 N.J. at 28-29. Appellate deference extends to a trial judge’s
imposition of a sentence, whether the judge or a jury sits as the trier of fact. Appellate courts
will not exercise judicial power to modify a sentence unless “the application of the facts to
the law is such a clear error of judgment that it shocks the judicial conscience.” Roth,  95 N.J. at 364. The appellate tests for reviewing an administrative disciplinary sanction and a
criminal sentence are virtually the same. Therefore, the Appellate Division erred in
suggesting that appellate review of a disciplinary sanction imposed by a judge is de novo and
different from traditional appellate review of an agency determination. (pp. 16-19)

3. Given the deferential standard of review applicable here, the ALJ’s six-month suspension
must be sustained. A belittling gender insult uttered in the workplace by a state employee is
a violation of New Jersey’s policy against discrimination and Hendrickson’s conduct was
unbecoming a public employee. The ALJ rebuked Hendrickson’s language in the strongest
terms in sustaining the charges against him. Nevertheless, in setting the appropriate
discipline, the ALJ found that Hendrickson’s behavior amounted to an isolated incident and
warranted a lesser penalty than the extreme sanction of termination. The Court cannot
conclude that the ALJ’s decision is shocking to one’s sense of fairness. (pp. 19-21)

     The judgment of the Appellate Division is REVERSED and the judgment of the
Administrative Law Judge is REINSTATED.

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, PATTERSON,
FERNANDEZ-VINA, SOLOMON, and TIMPONE join in JUSTICE ALBIN’s opinion.
                                3
                                       SUPREME COURT OF NEW JERSEY
                                         A-
12 September Term 2017
                                                  079885

IN THE MATTER OF WILLIAM R.
HENDRICKSON, JR., DEPARTMENT
OF COMMUNITY AFFAIRS.


         Argued April 9, 2018 – Decided September 18, 2018

         On certification to the Superior Court,
         Appellate Division, whose opinion is
         reported at  451 N.J. Super. 262 (App. Div.
         2017).

         Arnold Shep Cohen argued the cause for
         appellant William Hendrickson (Oxfeld Cohen,
         attorneys; Arnold Shep Cohen, of counsel and
         on the brief).

         Melanie R. Walter, Deputy Attorney General,
         argued the cause for respondent New Jersey
         Department of Community Affairs (Gurbir S.
         Grewal, Attorney General, attorney; Melissa
         H. Raksa, Assistant Attorney General, of
         counsel, and Melanie R. Walter, on the
         brief).

    JUSTICE ALBIN delivered the opinion of the Court.

    Under  N.J.S.A. 52:14B-10(c), when an agency, such as the

Civil Service Commission, does not modify or reject the decision

of an administrative law judge within a prescribed period, “the

decision of the administrative law judge shall be deemed adopted

as the final decision of the head of the agency.”   This appeal

raises the following question:   What is the judicial standard of

review when the disciplinary decision of the administrative law

judge (ALJ) is deemed adopted by the Civil Service Commission


                                 1
(the Commission) because the political branches did not appoint

a sufficient number of Commissioners to form a quorum to review

the decision?

    In this case, the Department of Community Affairs (DCA)

terminated from employment Fire Inspector William R.

Hendrickson, Jr., for various disciplinary infractions.

Hendrickson appealed that decision to the Commission, and the

matter was referred to the Office of Administrative Law (OAL) to

be heard as a contested case.   An ALJ conducted a hearing and

sustained the disciplinary charges, but rejected termination as

the appropriate discipline and instead imposed a six-month

suspension.

    The ALJ’s decision was then submitted to the Commission.

At the time, the political branches had not appointed the

requisite number of Commissioners to constitute a quorum.

Without a quorum, the Commission could not adopt, reject, or

modify the ALJ’s decision within the prescribed period, and

therefore that decision was “deemed adopted” as the Commission’s

final decision.

    The DCA appealed the discipline imposed by the ALJ.      The

Appellate Division held that the historical deference due to an

agency’s decision on appellate review does not apply “when an

agency’s inability to act on a timely basis is entirely

involuntary.”   In re Hendrickson,  451 N.J. Super. 262, 272 (App.


                                  2 Div. 2017).   The panel concluded that, “at a minimum, an ALJ’s

deemed-adopted decision should not be reviewed deferentially.”

Id. at 273.   Nevertheless, the panel afforded deference to the

ALJ’s factual findings, as it would in the case of a bench

trial.    Ibid.   The panel, however, maintained that no deference

would be accorded to the ALJ’s legal conclusions -- the

discipline imposed.     Id. at 273-74.   The panel reviewed the

disciplinary sanction de novo, reversed the ALJ’s determination,

and reinstated the DCA’s termination of Hendrickson as the

appropriate discipline.     Id. at 274-75.

    We now reverse.      The ALJ’s decision was “deemed adopted” as

the final agency determination pursuant to  N.J.S.A. 52:14B-

10(c).    In this unusual setting, the ALJ’s decision was deemed

adopted because a shorthanded Commission was disabled from

acting.    Whether we apply the traditional standard of appellate

deference to an agency’s imposition of discipline or the

deferential standard of appellate review to a trial court’s

sentencing decision, the test remains the same -- was the

discipline imposed by the ALJ so disproportionate that it shocks

the conscience or one’s sense of fairness?      See In re Herrmann,

 192 N.J. 19, 28-29 (2007) (appellate review of agency’s

disciplinary sanction); State v. Roth,  95 N.J. 334, 364-65

(1984) (appellate review of trial court’s sentence).      No one

disputes that this appeal is from a final agency determination.


                                   3
Because the appellate standard of review is practically

identical whether the ALJ’s deemed-adopted decision is compared

to a trial court’s sentencing or an agency’s disciplinary

determination, in this instance giving the name “agency

deference” to the standard is a sensible approach.

    In applying a deferential standard, we do not substitute

our judgment for that of the ALJ merely because we might have

come to a different outcome.    So long as reasonable minds might

differ about the appropriateness of the disciplinary sanction,

we have no charge to second-guess the call made by the ALJ.

    Because we do not find that the discipline imposed by the

ALJ shocks one’s sense of fairness, we vacate the Appellate

Division’s judgment terminating Hendrickson and reinstate the

six-month suspension.

                                 I.

                                 A.

    William R. Hendrickson, Jr., began his employment as a fire

safety inspector with the DCA in August 2012.    While on duty on

December 1, 2013, Hendrickson uttered an obscene and belittling

remark about a female supervisor overheard by two of his

colleagues.    The DCA brought three disciplinary charges against

Hendrickson:   conduct unbecoming a public employee, N.J.A.C.

4A:2-2.3(a)(6); engaging in prohibited gender discrimination,

N.J.A.C. 4A:2-2.3(a)(9); and violating New Jersey’s policy


                                  4
against discrimination in the workplace, N.J.A.C. 4A:2-

2.3(a)(12) (“An employee may be subject to discipline for . . .

[o]ther sufficient cause.”).

    In September 2014, after a departmental hearing on the

disciplinary charges, the DCA issued an order terminating

Hendrickson’s employment.   Hendrickson appealed to the Civil

Service Commission, and his matter was transmitted to the OAL

for an evidentiary hearing.

    At the ALJ hearing, the DCA called five witnesses, two fire

safety inspectors with firsthand knowledge of the incident and

three other DCA employees with information related to

departmental policy and its imposition of discipline.

Hendrickson testified on his own behalf.   Although the testimony

is consistent in many respects, Hendrickson and his colleagues

had differing accounts of the words he uttered.

    The following narrative is formed from the testimony and

evidence presented at the June 2015 ALJ hearing.

                                B.

    On Sunday, December 1, 2013, inspectors from the DCA’s

Division of Fire Safety were assigned to MetLife Stadium in the

Meadowlands, which was hosting a New York Jets football game.

The inspectors’ task was to ensure that the stadium complied

with applicable safety codes.   Three of the fire inspectors,

Christopher Reier, Vincent Lombardi, and Hendrickson met in the


                                 5
stadium’s parking lot before taking on their assignments.      Their

supervisor was Senior Inspector Margaret Knight, who was not

present with the three men at that time.

    While in the parking lot, Hendrickson received word that

Knight had assigned him to inspect the pyrotechnics display --

the fireworks -- on the roof that day.    Reier testified that he

relayed the assignment to Hendrickson, who became irate over the

posting, and called Knight a “c**t.”     According to Reier,

Hendrickson did not direct the remark to either Reier or

Lombardi, but rather made the comment to himself in a voice that

was overheard.   Lombardi, in his testimony, essentially

corroborated this account, although he recalled that Hendrickson

referred to Knight as a ”f***ing c**t.”    Both men were offended

by Hendrickson’s obscene remark and eventually reported the

incident.

    In his testimony, Hendrickson gave a different account of

his reaction to the rooftop pyrotechnic assignment.    He stated

that Reier informed him of his assignment and then walked away.

While four inspectors were fifteen to twenty feet away, he

“muttered” to himself, in a rather loud voice that he attributed

to his military background, “I hope she gets a disease.”       He

also admitted that he “said a few words [he’s] not proud of,”

but claimed to have no recollection of using the “'C’ word.”




                                 6
    According to a report filed by Knight, after her arrival,

Reier informed her of Hendrickson’s outburst.    Knight announced

to a number of the inspectors, including Hendrickson, “that if

anyone had any issues with [her], to please respect [her]

position and come to [her] and the problem would be discussed

and hopefully resolved.”     After Knight concluded her remarks,

Hendrickson walked away without saying a word and did his

assigned task without incident.

                                  C.

    At the conclusion of the hearing, the ALJ issued a written

decision.   The ALJ held that Hendrickson uttered a gender slur

in a workplace environment and therefore violated the State’s

policy prohibiting gender discrimination and engaged in conduct

unbecoming a public employee.    She found that Hendrickson became

angry at his supervisor, Senior Inspector Knight, when he

received her work order and “in a loud voice [Hendrickson]

called [Knight] a 'c**t.’”    The ALJ rejected Hendrickson’s

account as not credible.   According to the ALJ, the use of the

gender slur was “disrespectful, sexist, discriminatory,

unprofessional, in bad taste, improper, and extremely

offensive.”   Such disparaging language, the ALJ noted, has the

capacity to undermine workplace morale and, in this case, may

have been overheard by members of the public.




                                  7
     Although the ALJ was troubled by Hendrickson’s failure to

acknowledge his wrongdoing, she reasoned that removal was “too

harsh” a punishment given Hendrickson’s lack of a disciplinary

record in the fifteen months before and nine months after the

incident.   In determining the appropriate quantum of discipline,

the ALJ considered “the nature of the offense, the concept of

progressive discipline, and [Hendrickson’s] prior work record.”

With those factors in mind, she concluded that removal from

office would be excessive and instead ordered Hendrickson

suspended for six months.

                                D.

     The ALJ forwarded the decision to the Civil Service

Commission, and both parties filed exceptions.     Hendrickson

argued that the discipline was too severe, and the DCA argued

that termination was the appropriate punishment.

     In accordance with  N.J.S.A. 52:14B-10(c), the Commission

had forty-five days to “adopt, reject or modify” the ALJ’s

findings and render a final decision.    N.J.S.A. 11A:2-3 provides

that the Commission “shall consist of five members” and that

three members “shall constitute a quorum.”1   The Commission,

however, did not have a sufficient number of appointed




1  The members of the Civil Service Commission are “appointed by
the Governor with the advice and consent of the Senate.”
 N.J.S.A. 11A:2-3.


                                 8
Commissioners to form a quorum.       Without a quorum, the

Commission could not operate to adopt, reject, or modify the

ALJ’s decision.    See ibid.   For that reason, at the request of

the Commission’s chairperson, the Chief Administrative Law Judge

issued a forty-five-day extension to the Commission “to make a

final determination and issue a written opinion.”

    As that deadline approached, the Commission -- with only

one serving member -- still could not form a quorum.      Any

additional extension of time required “the unanimous agreement

of the parties.”    See  N.J.S.A. 52:14B-10(c).     Hendrickson

rejected the Commission’s request for another forty-five-day

extension.

    Because the Commission did not and could not modify or

reject the ALJ’s report within the prescribed period, the ALJ’s

decision was “deemed adopted as the final decision of the head

of the agency.”    See  N.J.S.A. 52:14B-10(c) (“Unless the head of

the agency modifies or rejects the report within such period,

the decision of the administrative law judge shall be deemed

adopted as the final decision of the head of the agency.”).

    The DCA appealed the Commission’s final agency decision to

the Appellate Division.    The contested issues concerned the

quantum of discipline imposed by the ALJ and the level of

deference that should be afforded to an ALJ’s deemed-adopted




                                  9
decision by a reviewing court.   The Commission took no position

on the merits of the appeal.

                                 E.

    The Appellate Division reversed the ALJ’s decision and

reinstated the DCA’s termination of Hendrickson’s employment.

In re Hendrickson,  451 N.J. Super. at 266.    The panel

acknowledged that the ALJ’s decision “was 'deemed-adopted’ as

the Commission’s final decision” pursuant to  N.J.S.A. 52:14B-

10(c).   Ibid.   Nevertheless, the panel held that because the

vacancies on the Commission disabled it from forming a quorum

and acting, “the deemed-adopted statute does not require

traditional deferential appellate review of the ALJ’s decision.”

Ibid.    On that basis, the panel applied “the standard of review

applicable to bench trials” and vacated the ALJ’s six-month

suspension.   Ibid.

    The panel contended that “automatic approval statutes are

held in disfavor,” and reasoned that given the historical

deference “to an agency’s expertise on appellate review, some

accommodation should be made when an agency’s inability to act

on a timely basis is entirely involuntary.”    Id. at 272.   The

panel presumed that the Legislature did not intend, in enacting

the present version of  N.J.S.A. 52:14B-10, to alter the

traditional “allocation of [regulatory] responsibilities.”

Ibid. (alteration in original) (quoting Election Law Enf’t


                                 10
Comm’n v. DiVincenzo,  445 N.J. Super. 187, 199 (App. Div.

2016)).

    In rejecting agency deference as its approach, the panel

instead resorted to “the equally familiar standard of review for

bench trials.”    Id. at 273.    In doing so, it stated that it

would affirm the ALJ’s factual findings “to the extent they are

supported by substantial credible evidence in the record,” but

accord no deference to and review de novo the ALJ’s legal

conclusions.     Ibid.   It determined that the ALJ’s factfindings

were “supported by the record” but that “the propriety of the

disciplinary sanction” was “a question of law” subject to de

novo review.     Id. at 274.

    Having accepted that premise, the panel maintained that

Hendrickson’s “lack of candor and remorse do not inspire

confidence in his ability to conduct himself in a measured

fashion in an undoubtedly demanding position.”      Id. at 275.   It

added, “[t]his incident, at the very beginning of Hendrickson’s

career, augured ill for his future.”      Ibid.   The panel

concluded, as a matter of law, that “the doctrine of progressive

discipline should be bypassed” because “[t]he incident violated

the State’s anti-discrimination policy and societal norms,” thus

justifying the reinstatement of Hendrickson’s termination.

Ibid.




                                   11
    We granted Hendrickson’s petition for certification.      231 N.J. 143 (2017).

                                II.

                                A.

    Hendrickson submits that the Appellate Division was

“obligated to provide the same degree of deference to [an ALJ’s

deemed-adopted] decision as it would any other final agency

decision,” and if the Legislature intended a different standard

of review, it would have said so.     Hendrickson noted that the

Commission was unable to assemble a quorum for at least ten

months because the Governor and Legislature had failed to fill

vacancies, and therefore the only method for final agency

determinations was through the ALJs’ deemed-adopted decisions.

Hendrickson maintains that the 2014 amendment to  N.J.S.A.

52:14B-10 was intended “to eliminate the use of unlimited

extensions before an agency issued a final decision” and that

the Appellate Division, “without any statutory authority,

narrowed the well-settled limited review of a decision by an

administrative agency.”

    Hendrickson contends that his remark, “although

objectionable, was not so egregious to warrant removal 'as a

matter of law.’”   In support of this argument, he points to his

otherwise “unblemished record” and to the context of his

“objectionable” statement:   it “was not directed to anyone”;


                                12
“Knight was not in the vicinity when the statement was made”;

and that as a subordinate, he had “no power relationship over”

Knight.     He also states that “he clearly 'learned his lesson’”

and “gets it” and that the Appellate Division disregarded the

mitigating factors.     He therefore seeks reinstatement of his

six-month suspension.

                                  B.

    The DCA does not dispute that “the ALJ’s decision in effect

becomes the agency’s decision” under the deemed-adopted

provision of  N.J.S.A. 52:14B-10(c); rather, it contends that the

ALJ’s decision is not entitled to agency deference because the

Commission, due to vacancies, was unable to muster a quorum and

apply “its technical and legal expertise” in reviewing the ALJ’s

findings.    The DCA maintains that deference is afforded to an

administrative agency because of its “special 'expertise and

superior knowledge of a particular field,’” quoting In re

Stallworth,  208 N.J. 182, 195 (2011).     That, according to the

DCA, contrasts with the determination of an ALJ, who “is not

considered a subject matter expert.”

    The DCA contends that the Appellate Division, in conducting

its de novo review of the discipline imposed by the ALJ,

correctly concluded that “[t]ermination was the only appropriate

sanction for Hendrickson’s gross unbecoming conduct and serious

violation of the State’s zero tolerance policy against gender


                                  13
based discrimination and harassment.”   The DCA concurs with the

panel’s rejection of “progressive discipline” in favor of

termination because Hendrickson’s gender slur toward a

supervisor occurred in a public place and because Hendrickson’s

duties involved public safety and interaction with the public.

                               III.

                                A.

    The sole legal issue before this Court is the appropriate

level of deference to be afforded to an ALJ’s disciplinary

decision that becomes a final agency determination through the

deemed-adopted provision of  N.J.S.A. 52:14B-10(c).   That issue,

of course, must be viewed in light of the fact that the Civil

Service Commission was unable to form a quorum and function due

to the failure of the political branches to fill vacancies in

the Commission’s membership.

    The standard of review of an ALJ’s deemed-adopted decision

is a question of law, and therefore we owe no deference to the

legal conclusions of the Appellate Division.   Willingboro Mall,

Ltd. v. 240/242 Franklin Ave., L.L.C.,  215 N.J. 242, 253 (2013).

Accordingly, our charge is to review this matter de novo.    Ibid.

                                B.

    We begin with the statute that is at the heart of the

controversy.    N.J.S.A. 52:14B-10 generally sets forth the

procedures for resolving contested agency cases submitted to the


                                14
Office of Administrative Law.   Subsection (c) -- the “deemed-

adopted” portion of the statute -- provides:

          The head of the agency, upon a review of the
          record submitted by the administrative law
          judge, shall adopt, reject or modify the
          recommended report and decision no later than
          45 days after receipt of such recommendations.
          . . . Unless the head of the agency modifies
          or rejects the report within such period, the
          decision of the administrative law judge shall
          be deemed adopted as the final decision of the
          head of the agency.    The recommended report
          and decision shall be a part of the record in
          the case.      For good cause shown, upon
          certification by the director and the agency
          head, the time limits established herein may
          be subject to a single extension of not more
          than 45 days.    Any additional extension of
          time shall be subject to, and contingent upon,
          the unanimous agreement of the parties.

          [ N.J.S.A. 52:14B-10(c) (emphasis added).]

    The current version of subsection (c) is the product of a

2014 amendment.   L. 2013, c. 236, § 2.   The Legislature amended

subsection (c) of  N.J.S.A. 52:14B-10 to set a strict deadline

for administrative agencies to “adopt, reject or modify” an

ALJ’s decision -- unless all the parties agreed to an extension.

Ibid.   Under the amendment, when the agency does not act within

the forty-five-day statutory timeframe -- or within the single

extension period not to exceed forty-five days -- the ALJ’s

decision is “deemed adopted as the final decision of the head of

the agency.”   Ibid.   In this way, the Legislature ensured that

there would always be a timely final agency decision.




                                 15
    Construing the pre-2014 version of  N.J.S.A. 52:14B-10(c),

this Court in King v. Racing Commission declined to strictly

enforce the forty-five-day time limit to the deemed-adopted

provision because there was no showing in that case that the

agency’s delay to act was in “bad faith,” “inexcusable

negligence,” “gross indifference,” or complete inaction.        103 N.J. 412, 421 (1986).    In a belated but apparent response to

King, the Legislature amended  N.J.S.A. 52:14B-10(c) and

“eliminate[d] any consideration of whether the failure to act

within the prescribed time period is due to circumstances beyond

the agency’s control.”   DiVincenzo,  445 N.J. Super. at 199;

accord Sponsor’s Statement to A. 1521 (L. 2013, c. 236, § 2)

(“[A]mendment would eliminate the provision authorizing the

unlimited extension of this 45-day time period, and provide,

instead, for a single extension of no more than 45 days for good

cause shown, and upon certification by the director and agency

head.”).

    The DCA does not contest that the ALJ’s decision is a final

agency determination pursuant to  N.J.S.A. 52:14B-10(c).       It only

claims that an appellate court should afford the ALJ’s decision

less deference than an actual agency determination.    Here,

specifically, we review a challenge to the discipline imposed on

a state employee by an ALJ, whose decision has become a final

agency determination.    Traditionally, we give substantial


                                 16
deference to an agency’s imposition of a disciplinary sanction,

based on its “expertise and superior knowledge of a particular

field.”   In re Herrmann,  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)).    That standard gives the

agency a wide berth of discretion.    Our task is not to

substitute our judgment for that of the agency, but rather to

stay our hand even if we would have reached a different result.

Ibid.   Only a patently unreasonable sanction would call for this

Court’s intervention.

    In the present case, the Appellate Division held that a

different standard of review should apply to an ALJ’s

disciplinary decision that becomes a final agency determination

because the Commission was unable to form a quorum to act.      The

panel opted to apply the standard of review for bench trials and

declared that it would defer to the ALJ’s factfindings, but not

to the ALJ’s conclusions of law.     The panel, however, failed to

draw the parallel between an ALJ’s imposition of discipline and

a trial court’s imposition of sentence.     The panel overlooked




                                17
the full scope of deference afforded to a trial judge who

imposes sentence after a bench trial or jury trial.

    The panel evidently classified the ALJ’s disciplinary

sanction as a legal conclusion and therefore erroneously engaged

in a de novo review.    An abuse of discretion standard, however,

applies to the judicial imposition of a sentence, Roth,  95 N.J.

at 364-65, or a disciplinary sanction, In re Herrmann,  192 N.J.

at 28-29.   Appellate deference extends to a trial judge’s

imposition of a sentence, whether the judge or a jury sits as

the trier of fact.     We have made clear that we will not exercise

our judicial power to modify a sentence unless “the application

of the facts to the law is such a clear error of judgment that

it shocks the judicial conscience.”     Roth,  95 N.J. at 364.     In

Roth, we indicated that we did not “anticipate that we [would]

be required to invoke this judicial power frequently.”     Ibid.

    We do not see any material difference between the appellate

standard of review of an agency’s disciplinary sanction and a

trial judge’s imposition of a sentence.    In both instances, we

afford a high degree of deference.     Indeed, in fashioning an

appellate standard of review for sentencing, we relied in part

on the appellate standard of review of administrative agency

determinations, particularly in Civil Service Commission cases.

Id. at 364.   In Roth, for sentencing review purposes, we cited

to and quoted from Campbell v. Department of Civil Service, 39


                                   18 N.J. 556, 562 (1963), a case involving a Civil Service

Commission decision, stating:   “[W]e will not upset a

determination . . . in the absence of a showing that it was

arbitrary, capricious or unreasonable, or that it lacked fair

support in the evidence, or that it violated legislative

policies expressed or implicit in the civil service act.”     Roth,

 95 N.J. at 364 (alterations in original).

    The appellate tests for reviewing an administrative

disciplinary sanction and a criminal sentence are virtually the

same.   Therefore, the Appellate Division erred in suggesting

that appellate review of a disciplinary sanction imposed by a

judge is de novo and different from traditional appellate review

of an agency determination.   Additionally, merely because the

factual findings and rulings made by ALJs are oftentimes

contingent on whether an agency accepts, rejects, or modifies an

ALJ’s decision does not mean that ALJs are second-tier players

or hold an inferior status as factfinders.

                                IV.

    The standard of review would be no different if we afford

an ALJ the same level of deference that a trial judge enjoys

when imposing a sentence -- to which a disciplinary sanction is

comparable.   Accordingly, we will apply the standard of review

for disciplinary sanctions set forth in In re Herrmann, and

assess whether the sanction imposed by the ALJ here “is so


                                19
disproportionate to the offense, in light of all the

circumstances, as to be shocking to one’s sense of fairness.”

 192 N.J. at 28-29 (quoting In re Polk,  90 N.J. at 578).2

     Given that deferential standard of review, the ALJ’s six-

month suspension must be sustained.   The issue is not whether we

would have imposed different discipline if we were the

decisionmakers in the first instance, but whether the ALJ’s

disciplinary sanction is “shocking to one’s sense of fairness.”

See ibid.   Reasonable people may have differing opinions

regarding the appropriate quantum of discipline in this case.

However, so long as the discipline here falls within a continuum

of reasonable outcomes, we must defer, for we have no charge to

substitute our judgment for that of the statutorily authorized

decisionmaker.

     Hendrickson’s use of a highly offensive gender slur in a

public place and overheard by co-workers must be firmly

condemned, even if Hendrickson was just “muttering” to himself

in a loud voice about his female supervisor.   A belittling

gender insult uttered in the workplace by a state employee is a




2  Our holding is limited to the issue before us -- the appellate
standard of review of an ALJ’s imposition of a disciplinary
sanction in the circumstances presented here, where the ALJ’s
decision becomes the final agency determination. We do not
address the standard of review that applies when an agency is
shorthanded and disabled from action on issues other than
disciplinary sanctions.


                                20
violation of New Jersey’s policy against discrimination and

Hendrickson’s conduct was unbecoming a public employee.     That

Hendrickson engaged in disrespectful, sexist, and unprofessional

conduct -- as the ALJ found -- is beyond question.    The ALJ

rebuked Hendrickson’s language in the strongest terms in

sustaining the charges against him.   Without an appropriate

penalty, such an insult would have a corrosive effect on morale

in the workforce.

    Nevertheless, in setting the appropriate discipline, the

ALJ found that Hendrickson’s behavior amounted to an isolated

incident.   Hendrickson had an otherwise unblemished disciplinary

record during the fifteen months before and nine months

following the incident.   She determined that those mitigating

factors warranted a lesser penalty -- a six-month suspension --

rather than the extreme sanction of termination.     Ultimately,

she found that Hendrickson was redeemable.

    Based on our deferential standard of review, we cannot

conclude that the ALJ’s decision is shocking to one’s sense of

fairness.

                                V.

    For the reasons expressed, we reverse the judgment of the

Appellate Division and reinstate the ALJ’s determination

suspending Hendrickson for a period of six months from his

position as fire safety inspector.


                                21
     CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, PATTERSON,
FERNANDEZ-VINA, SOLOMON, and TIMPONE join in JUSTICE ALBIN’s
opinion.




                               22