IN THE MATTER OF SEAN TONNER, ETC. (NEW JERSEY CIVIL SERVICE COMMISSION) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE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-2071-18T2
IN THE MATTER OF SEAN
TONNER, EAST JERSEY STATE
PRISON, DEPARTMENT OF
CORRECTIONS.
______________________________
Submitted November 14, 2019 – Decided December 30, 2019
Before Judges Nugent and Suter.
On appeal from the New Jersey Civil Service
Commission, Docket No. 2018-1063.
Di Francesco Bateman, attorneys for appellant Sean
Tonner (Robert Philip Manetta and Richard Paul
Flaum, on the briefs).
Gurbir S. Grewal, Attorney General, attorney for
respondent Department of Corrections (Jane C.
Schuster, Assistant Attorney General, of counsel;
Nicholas A. Sullivan, Deputy Attorney General, on the
brief).
Gurbir S. Grewal, Attorney General, attorney for
respondent Civil Service Commission (Donna Sue
Arons, Assistant Attorney General, of counsel; Steven
Michael Gleeson, Deputy Attorney General, on the
statement in lieu of brief).
PER CURIAM
Appellant Sean Tonner appeals the December 21, 2018 final decision of
the Civil Service Commission (Commission), affirming disciplinary charges
against him by the Department of Corrections, East Jersey State Prison (the
Department), and a sixty working day suspension and demotion to the position
of Corrections Sergeant. We affirm the decision and penalties imposed.
I.
On February 15, 2017, Tonner, a Senior Investigator in the Special
Investigation Division of the Department, attended a meeting at the
Department's Central Office where he was served with disciplinary charges,
unrelated to this appeal, seeking his suspension and demotion. Tonner disputed
the charges, believing them to be fabricated by his supervisor, Jerome Scott.
Tonner was "visibly shaken" and "upset" at the meeting. He was instructed to
go back to his office at Edna Mahan Correctional Facility for Women (Edna
Mahan) to remove his personal belongings because he was being temporarily
transferred to another facility. Adrian Ellison, a union representative with the
Fraternal Order of Police (FOP), attended the meeting as Tonner's union
representative. Ellison went with Tonner to Edna Mahan when Tonner left to
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gather his things. Ellison also was accompanied by Senior Investigator Valisa
Leonard, who was Sergeant-at-Arms for the FOP.
Scott was involved in bringing the unrelated disciplinary charges that
were the subject of the meeting and had disciplined Tonner in the past. Scott
was not at the facility when Tonner arrived because he had been told to leave at
Ellison's suggestion. Ellison was with Tonner as he gathered things from his
desk; Leonard remained outside the office. Ellison testified Tonner asked him
"[w]hy did you tell them not to have that p---y Jerome here[?] I was going to
shoot that mother f----r." Ellison asked Leonard to come into the office. She
testified Tonner's "face was red and his eyes were a little like water," she
testified. She heard Tonner refer to Scott as "the steroid mother f----r." When
Ellison asked Tonner to repeat what he had said before Leonard was in the room,
Tonner would not respond, saying only "every time I talk to you I get in trouble."
Outside, Ellison told Leonard what Tonner said about threatening to shoot Scott,
and asked her to go back to obtain Tonner's service weapon. Although she
requested Tonner to turn over his gun, he would not. She testified he said he
was not going to hurt anybody. Tonner told Leonard he "was not going to do
anything to that man."
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Ellison and Leonard left the facility. Ellison contacted Chief Investigator
Manuel Alfonso, reporting what Tonner had said. Alfonso contacted Deputy
Chief Investigator Edwin Soltys. He dispatched Soltys to Tonner's home in
Pennsylvania to retrieve Tonner's service weapon.
Soltys testified that, accompanied by other investigators and local
township police, he went to Tonner's home and retrieved the weapon from him
without incident. Based on the duty to warn protocol, Soltys notified Scott of
the alleged threat by Tonner. Scott asked that the matter be pursued criminally.
Alfonso directed Soltys to refer the matter to the Hunterdon County Prosecutor's
Office (HCPO). It was referred on February 16 or 17, 2017.
On June 12, 2017, the HCPO declined to bring criminal charges against
Tonner. Soltys then conducted an administrative investigation of the incident,
which included a video-recorded interview of Tonner. In his video-recorded
statement, Tonner denied saying he wanted to shoot Scott. He wanted to know
why Scott was not present at Edna Mahan when he went there with Ellison
because Tonner thought Scott owed him an explanation for the fifteen-day
suspension and demotion he was facing. Scott had repeatedly disciplined
Tonner. Tonner thought Ellison had let him down as his union representative.
His venting to Leonard had to do with Ellison, not Scott. He thought Ellison
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fabricated the allegations against him because Ellison and Scott were working
together to get him fired. He denied talking to Leonard about hurting anyone.
On July 11, 2017, the Department served Tonner with a Preliminary
Notice of Disciplinary action (PNDA) in which Tonner was charged 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); and violation of Department Human
Resource Bulletin (HRB) 84-17: §C-11, conduct unbecoming an employee; §C-
24, threatening, intimidating, harassing, coercing or interfering with fellow
employees on State property and §E-1, violation of a rule, regulation, policy,
procedure, order or administrative decision.
The Department conducted a hearing, sustained the charges and issued a
Final Notice of Disciplinary Action (FNDA) on October 10, 2017. Under the
FNDA, Tonner was suspended for a period of sixty working days and demoted
to Corrections Sergeant. He appealed the FNDA and the matter was transmitted
to the Office of Administrative Law (OAL) as a contested case.
The administrative law judge (ALJ) conducted a two-day plenary hearing.
Tonner did not testify, but his video-recorded statement was part of the record.
The ALJ found Ellison's testimony about his verbal exchange with Tonner to be
credible. The ALJ also found Leonard to be extremely credible because it was
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clear from her demeanor, she and Tonner remained friends, she had no reason
to fabricate her testimony and was visibly upset during her testimony. The ALJ
found Leonard's testimony provided "corroboration to Ellison's testimonial
account of the events of February 15, [2017]." Although Tonner claimed he was
expressing his frustrations with Ellison, Leonard's testimony made clear the
expressions were about Scott, not Ellison. Also, Leonard had testified Tonner
did not deny making the threat; he "just dismissed Leonard's concerns that he
may be a danger."
The ALJ's November 15, 2018 initial decision rejected Tonner's argument
that under the "forty-five" day rule, the disciplinary charges against him were
filed out-of-time. The timeframe to file charges did not start until the day after
the HCPO declined to prosecute and were filed within forty-five days thereafter.
The ALJ's initial decision recommended all charges and discipline against
Tonner be sustained. The ALJ found Tonner threatened to shoot his supervisor
"in the presence of another [Department] Investigator while armed with a
[Department] service weapon . . . ." That conduct was conduct unbecoming a
public employee under N.J.A.C. 4A:2-2.3(a)(6) because it showed a "significant
lack of judgment," violating his "obligations and duties." This conduct "violated
this standard of good behavior" which was sufficient to find a violation of "other
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sufficient cause." The ALJ also found the conduct violated the HRB 84-17,
which required all employees to follow all policies of the Department.
In determining the appropriate penalty, the ALJ considered Tonner's
history of disciplinary violations, record of commendations, seriousness of the
current offense, impact on the institution and status as a law enforcement officer.
The ALJ concluded the imposition of major discipline, consisting of a sixty-day
suspension and demotion, was warranted.
On December 21, 2018, the Commission, having independently evaluated
the record, adopted the findings of the ALJ, and affirmed the charges, discipline,
and demotion. On appeal, Tonner raises the following issues:
I. RESPONDENT FAILED TO DELIVER THE
DISCIPLINARY COMPLAINT WITHIN THE
FORTY-FIVE DAY PERIOD PROVIDED FOR IN
N.J.S.A. 40A:14-147 AND THUS THE DISCIPLINE
MUST BE DISMISSED IN ITS ENTIRETY.
II. ALJ FRITCH['S] FACTUAL FINDINGS ARE
NOT SUPPORTED BY REASONABLY CREDIBLE
EVIDENCE IN THE RECORD.
III. THE DECISION TO DEMOTE AND SUSPEND
APPELLANT WAS ARBITRARY, CAPRICIOUS,
AND THEREFORE NOT REASONABLY
PROPORTIONAL TO THE ALLEGED OFFENSE.
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II.
Our review of an appeal from a final decision of an administrative agency
is limited. Russo v. Bd. of Trs., Police & Firemen's Ret. Sys., 206 N.J. 14, 27
(2011) (citing In re Herrmann, 192 N.J. 19, 27 (2007)). An agency's decision
should be upheld unless there is a "clear showing that it is arbitrary, capricious,
or unreasonable, or that it lacks fair support in the record." Ibid. (quoting
Herrmann, 192 N.J. at 27-28).
To determine whether an agency's decision is arbitrary, capricious, or
unreasonable, we assess:
(1) whether the agency's action violates express or
implied legislative policies, that is, did the agency
follow the law; (2) whether the record contains
substantial evidence to support the findings on which
the agency based its action; and (3) whether in applying
the legislative policies to the facts, the agency clearly
erred in reaching a conclusion that could not reasonably
have been made on a showing of the relevant factors.
[In re Stallworth, 208 N.J. 182, 194 (2011) (citing In re
Carter, 191 N.J. 474, 482-83 (2007)).]
No deference is required with respect to an "agency's interpretation of a statute
or its determination of a strictly legal issue," which is reviewed de novo. Russo,
206 N.J. at 27 (quoting Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85, 93
(1973)).
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We agree with the Commission and ALJ that the charges against Tonner
were timely filed under N.J.S.A. 40A:14-147. The statute provides:
[a] complaint charging a violation of the internal rules
and regulations established for the conduct of a law
enforcement unit shall be filed no later than the [forty-
fifth] day after the date on which the person filing the
complaint obtained sufficient information to file the
matter upon which the complaint is based. The [forty-
five]-day time limit shall not apply if an investigation
of a law enforcement officer for a violation of the
internal rules or regulations of the law enforcement unit
is included directly or indirectly within a concurrent
investigation of that officer for a violation of the
criminal laws of this State. The [forty-five]-day limit
shall begin on the day after the disposition of the
criminal investigation.
[N.J.S.A. 40A:14-147 (emphasis added).]
The Collective Bargaining agreement 1 (CBA) cited by Tonner includes a
nearly identical provision.
All disciplinary charges shall be brought within [forty-
five] days after the date on which the Chief SID
(Corrections), Vice Chairman (Parole), Chief
Investigator (Juvenile Justice), or in each's absence
his/her designee, obtains sufficient information to file
the matter upon which the charge is based, except for
those acts which would constitute a crime. In the
absence of the institution of the charge within the
[forty-five]-day time period, the charge shall be
dismissed. The employee's whole record of
1
The CBA cited by Tonner extended from 2011 to 2015. This incident occurred
in 2017. It is not clear if this CBA applies.
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employment, however, may be considered with respect
to the appropriateness of the penalty to be imposed.
Charges under EEO shall be brought within [sixty]
days.
[(emphasis added).]
We are satisfied this case comes within the tolling provision of the statute.
The matter was referred to the HCPO for prosecution within a day or two of the
incident. Once the HCPO declined to proceed on June 12, 2017, the Department
promptly commenced its investigation. This included a video-recorded
interview of Tonner on June 23, 2017. The Department's investigation
concluded on July 5, 2017. The PNDA was served on July 11, 2017, well within
forty-five days from when the HCPO declined prosecution.
The statute expressly provided the "[forty-five]-day limit shall begin on
the day after the disposition of the criminal investigation." Applying that
language, the timeframe began to run on June 13, 2017, the day after the HCPO
declined to prosecute, and the charges were served within forty-five days
thereafter. Tonner's other arguments about the forty-five-day rule do not
warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E).
Tonner contends that the agency's decision was arbitrary, capricious and
unreasonable because the case was based on one person's word against another.
In reviewing the final decision of an agency, the question is "whether the
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findings of the agency could reasonably have been reached on sufficient credible
evidence presented in the record, 'considering the "proofs as a whole," with due
regard to the opportunity of the one who heard the witnesses to judge of thei r
credibility.'" In re Carroll, 339 N.J. Super. 429, 437 (App. Div. 2001) (quoting
In re Taylor, 158 N.J. 644, 656 (1999)). Our thorough review of the record
shows there was substantial, credible evidence in the record to support the
findings. We do not agree with Tonner that the agency's decision was arbitrary,
capricious or unreasonable.
The appointing authority bears the burden of proof to show that its action
was appropriate. N.J.S.A. 11A:2-21; N.J.A.C. 4A:2-1.4(a). The authority is
required to report their findings of fact and conclusions of law based upon the
preponderance of the sufficient, competent and credible evidence. In re Polk,
90 N.J. 550, 561 n.1 (1982).
The ALJ made credibility determinations to which we defer. "As a general
rule, the reviewing court should give 'due regard to the opportunity of the one
who heard the witnesses to judge of their credibility . . . and . . . [give] due
regard also to the agency's expertise where such expertise is a pertinent factor.'"
Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 587 (1988) (alteration in original)
(quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)). There was nothing
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improper about the fact-finder determining the credibility of the witnesses. In
re Snellbaker, 414 N.J. Super. 26, 36 (App. Div. 2010).
The ALJ specifically found Ellison was credible, emphasizing his position
as "president of the FOP . . . , [and as] a sworn law enforcement professional
and an experienced criminal investigator." Even though Ellison testified Tonner
made the statement about shooting Scott once, and in his written statement
indicated Tonner said it twice, Ellison consistently said Tonner made the threat.
The ALJ was also persuaded by Leonard's "very credible" testimony, because
she was Tonner's friend and was not accused by him of bias. Leonard's statement
that Tonner said he was not going to hurt "that man," and that he did not directly
deny making a threat, corroborated Ellison's testimony that a threat had been
made. There was nothing arbitrary and capricious about the Commission
reviewing the record and adopting these findings.
Tonner argues the sixty working day suspension and demotion was not
reasonably proportional to the offense. "[W]hen reviewing administrative
sanctions, appellate courts should consider whether the 'punishment is so
disproportionate to the offense, in light of all of the circumstances, as to be
shocking to one's sense of fairness.'" Stallworth, 208 N.J. at 195 (quoting Carter,
191 N.J. at 484).
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A corrections officer is a law-enforcement officer with full police powers,
N.J.S.A. 2A:154-4. A law enforcement officer is held to a higher standard of
conduct than other public employees and is expected to act in a reasonable
manner. See In re Phillips, 117 N.J. 567, 576 (1990). Even were he not an
officer, the threat to shoot another employee is a very serious matter, requiring
prompt attention for the safety of the workplace. There was nothing
disproportionate about the punishment that shocks our sense of fairness when
compared to the offense, nor nothing arbitrary, capricious or unreasonable about
the discipline imposed.
Affirmed.
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