IN THE MATTER OF GARY VICTOR, MERCER COUNTY DEPARTMENT OF PUBLIC SAFETY(CIVIL SERVICE COMMISSION) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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Although it is posted on the internet, this opinion is binding only on the
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2145-15T2
IN THE MATTER OF
GARY VICTOR,
MERCER COUNTY DEPARTMENT
OF PUBLIC SAFETY
______________________________
Submitted June 1, 2017 – Decided July 14, 2017
Before Judges Lihotz and Whipple.
On appeal from the Civil Service Commission,
Docket No. 2012-2640.
Alterman & Associates, L.L.C., attorneys for
appellant Gary Victor (Stuart J. Alterman, of
counsel and on the briefs; Matthew R. Dempsky,
on the briefs).
Arthur R. Sypek, Jr., Mercer County Counsel,
attorney for respondent Mercer County
Department of Public Safety (Kristina E.
Chubenko, Assistant County Counsel, of counsel
and on the brief).
Christopher S. Porrino, Attorney General,
attorney for respondent New Jersey Civil
Service Commission (Pamela N. Ullman, Deputy
Attorney General, on the statement in lieu of
brief).
PER CURIAM
Petitioner Gary Victor appeals from a December 17, 2015 final
administrative action of the Civil Service Commission (Commission)
upholding his ten-day suspension. We affirm.
Petitioner began working as a correction officer in Mercer
County in 1993, and was promoted to sergeant in 2007, a position
he held when this matter arose. On January 24, 2011, petitioner
was the Receiving and Discharge (R&D) Sergeant. On that night,
he mistakenly discharged an inmate instead of turning him over to
the Plainsboro Police Department as required by the inmate's
discharge paperwork.
On or about May 11, 2011, the County of Mercer (County) served
petitioner with a preliminary notice of disciplinary action, in
accordance with N.J.A.C. 4A:2-2.5(a). The County sought a ten-
day working suspension and charged petitioner with: 1) conduct
unbecoming a public employee, N.J.A.C. 4A:2-2.3(a)(6); 2) neglect
of duty, N.J.A.C. 4A:2-2.3(a)(7); and 3) "[o]ther sufficient
cause: violation of administrative procedures and/or regulations
involving safety & security (D-6) [Standard Operating Procedure]
210," "[n]eglect of duty, loafing, idleness, or willful failure
to devote attention to tasks which would result in danger to
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persons or property. (B-2)," N.J.A.C. 4A:2-2.3(a)(12).1 After a
departmental disciplinary hearing, the County served petitioner
with a final notice of disciplinary action imposing a ten-day
working suspension beginning on April 21, 2012. Petitioner
appealed and the matter was transferred to the Officer of
Administrative Law for a de novo hearing.
We discern the following from the hearing record. Lieutenant
Steven Boseke was shift commander at the correctional facility on
January 24, 2011. Boseke testified three different individuals
review an inmate's record to ensure the particular inmate is to
be discharged. Here, Boseke, Mary Gales, a civilian employee, and
Lieutenant P.A. Barber signed the inmate's discharge paperwork.
Boseke testified the inmate's paperwork stated, "Turned over to
Plainsboro Township," however, on the top right corner there was
a handwritten note, which read, "No ride, Annex." Boseke did not
recall seeing the handwritten note prior to signing the discharge
paperwork and stated, if he had seen it, he would have questioned
it, because it meant the inmate was to be released to the street.
Boseke identified a body receipt form used when officers from
another municipality come to retrieve an inmate. The retrieving
1
At the time petitioner received the preliminary notice of
disciplinary action, the regulation in which he was cited for was
N.J.A.C. 4A:2-2.3(a)(11), however, that section has since been
amended and is now N.J.A.C. 4A:2-2.3(a)(12).
3 A-2145-15T2
officer must sign the form to demonstrate he has taken custody of
the inmate. The body receipt should be attached to the discharge
paperwork. Once all forms are collected and signed, the paperwork
is sent to the R&D Sergeant, who on January 24, 2011, was
petitioner. Petitioner's signature appears at the bottom of the
inmate's discharge paperwork dated January 24, 2011.
That night, petitioner called Boseke and told him he
mistakenly discharged the inmate to the streets.2 Boseke
instructed petitioner to call the transportation team and see if
the inmate was still in the van. After speaking with petitioner
Officer Elgee Styles called Boseke and reported the inmate had
been dropped off. Boseke advised Styles to call Trenton Police
Department for backup if needed. Trenton Police assisted in re-
arresting the inmate who was brought back to the correctional
facility. Boseke then wrote up an incident report, and instructed
the officers involved to provide reports. All of the reports were
turned over to Captain Richard Bearden.
Mary Gales works in the records department and prepared the
inmate's discharge paperwork. Boseke testified Gales crossed out
"This certified that I, Plainsboro, received" because she had
2
Boseke testified when an inmate does not have a ride home from
the correctional facility, the transportation team will drop the
inmate off in downtown Trenton.
4 A-2145-15T2
written it in the wrong place. Additionally "No ride, Annex" was
written on the right side of the document, indicating the inmate
needed to be transported by van. Boseke testified Officer Curtis
Diaz, working in Control Room 3 on January 24, also reviewed the
inmate's paperwork to ensure all information was correct. Boseke
stated he did not review the log book entry from January 24, which
states the inmate was "Turned over to the Street."
Styles was a transportation officer on January 24, 2011.
Styles transported four discharges, including the inmate in
question, to downtown Trenton to be dropped off and her way back,
she received a phone call from petitioner advising the inmate
needed to be returned to the correctional facility. Her partner,
Officer Gary Vannozzi, turned their vehicle around and they spotted
the inmate walking. When they called out to the inmate asking him
to come back to the van, the inmate shook his head no and began
to run. A Trenton Police car was in a nearby parking lot and
after Styles ran over to explain the situation, the officer got
on their radio and Trenton Police apprehended the inmate.
Styles testified the inmate was on the street for about ten
minutes. Styles and Vannozzi returned the inmate to the
correctional facility, where petitioner told Styles, "[i]t was a
mistake, mistakes happen."
5 A-2145-15T2
Lieutenant Farah Fioravanti, a Mercer County corrections
officer, authored an investigation report about the January 24
incident. As part of her investigation, Fioravanti interviewed
petitioner, Boseke, Officers Jeffrey Lane, Steven Rinz Diaz,
Styles, and Vannozzi. According to Fioravanti, petitioner
admitted he wrote "No ride, Annex" on the discharge paperwork and
only became aware he mistakenly discharged the inmate when the
Plainsboro Police Department arrived to pick him up.
Fioravanti concluded petitioner violated Standard Operating
Procedure (SOP) 210: "Post Orders - Sergeant (General)." SOP 210
D.2. provides: "'R&D' Sergeant includes management and supervision
of Detention Floor, Property Storage, Control Room 3, and the
receiving and discharge of inmates. The R&D Sergeant is required
to coordinate efforts closely with the Classification/Records
Lieutenant." Fioravanti rejected petitioner's allegation someone
altered or switched the discharge paperwork after the inmate had
left.
Petitioner's internal affairs statement recounted the
discharge paperwork he received showed the inmate was to be
released to the street; though he reported, "it was possible" he
overlooked the fact the discharge paperwork said "Turn over to
Plainsboro Township." In his statement, petitioner recounted he
did not see the inmate's active charge in the computer system
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until after the inmate was discharged and in the transportation
van.
Lane, a property officer at the correctional facility
reviewed the inmate's discharge paperwork and did not notice the
inmate was supposed to be discharged to Plainsboro Police
Department but he could not rule out the discharge paperwork did
say, "Discharge to Plainsboro."
Diaz was working as the Control Room 3 officer on January 24,
2011. Diaz testified as R&D receives discharge paperwork for
various inmates, he would check their picture cards to verify the
correct inmate was being discharged, as well as check their jail
number. Diaz did not notice the inmate was supposed to be turned
over to the Plainsboro Police Department. Petitioner was Diaz's
supervisor on January 24, 2011.
Petitioner testified he learned the inmate was mistakenly
discharged when the Plainsboro police arrived to pick up the
inmate. According to petitioner, he asked Diaz for the inmate's
discharge paperwork, which then had "Plainsboro" written on it.
Petitioner testified the discharge paperwork Diaz handed him was
not the original paperwork he saw for the inmate and it now
included a body receipt not attached previously. On cross-
examination, petitioner acknowledged he never attempted to locate
the original discharge paperwork. He also testified he wrote "No
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ride, Annex" on the discharge paperwork and the discharge paperwork
from Diaz said the same thing. The only difference between what
petitioner saw originally and what he received from Diaz was the
body receipt.
Following the testimony, the administrative law judge (ALJ)
issued his initial decision on November 5, 2015, finding the County
established, by a preponderance of the evidence, petitioner
violated the rules and regulations charged in the final notice of
disciplinary action, except N.J.A.C. 4A:2-2.3(a)(12), "[o]ther
[s]ufficient [c]ause - (c) neglect of duty, loafing, idleness or
willful failure to devote attention to tasks which would result
in danger to persons or property." The ALJ concluded the ten-day
working suspension was appropriate.
Petitioner filed exceptions with the Commission, and on
December 17, 2015, the Commission issued its final administrative
action accepting and adopting the ALJ's findings of fact and
conclusions. This appeal followed.
Petitioner argues the Commission's findings are arbitrary,
capricious, and unreasonable, as the County failed to establish
by a preponderance of the evidence the charges cited against him
in the final notice of disciplinary action. We disagree.
Our review of agency action is limited. "An appellate court
ordinarily will reverse the decision of an administrative agency
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only when the agency's decision is 'arbitrary, capricious or
unreasonable or is not supported by substantial credible evidence
in the record as a whole.'" Ramirez v. N.J. Dep't. of Corr., 382
N.J. Super. 18, 23 (App. Div. 2005) (quoting Henry v. Rahway State
Prison, 81 N.J. 571, 579-80 (1980)). "An administrative agency's
interpretation of statutes and regulations within its implementing
and enforcing responsibility is ordinarily entitled to our
deference.'" Wnuck v. N.J. Div. of Motor Vehicles, 337 N.J. Super.
52, 56 (App. Div. 2001) (quoting In re Appeal by Progressive Cas.
Ins. Co., 307 N.J. Super. 93, 102 (App. Div. 1997)). Therefore,
"if substantial credible evidence supports an agency's conclusion,
a court may not substitute its own judgment for the agency's even
though the court might have reached a different result." Greenwood
v. State Police Training Ctr., 127 N.J. 500, 513 (1992) (citing
Clowes v. Terminix Int'l, 109 N.J. 575, 587 (1998)).
Petitioner argues the County did not meet its burden of proof
as to N.J.A.C. 4A:2-2.3(a)(6), conduct unbecoming a public
employee, as he acted reasonably and in good faith in relying upon
the discharge paperwork he was provided.
Conduct unbecoming an officer has been defined as "any conduct
which adversely affects the morale or efficiency of the
[correctional facility] . . . which has a tendency to destroy
public respect for municipal employees and confidence in the
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operation of municipal services." In re Emmons, 63 N.J. Super.
136, 140 (App. Div. 1960) (quoting In re Zeber, 156 A.2d 821, 825
(Pa. 1959)). The conduct in question can be sufficient if it is
"such as to offend publicly accepted standards of decency." Karins
v. City of Atl. City, 152 N.J. 532, 554 (1998) (quoting Zeber,
supra, 156 A.2d at 825).
Petitioner argues he relied in good faith on the "No ride,
Annex" note on the discharge paperwork and believed the inmate was
to be transported to the street. However, at the hearing,
petitioner admitted he wrote "No ride, Annex" on the paperwork.
Petitioner could not have relied in good faith on the paperwork
if he was the one who wrote the note. Additionally, the ALJ did
not find petitioner's testimony credible. Based upon our deference
to the ALJ's credibility determination, see Clowes, supra, 109
N.J. at 587, along with the testimony of the other individuals on
duty on January 24, 2011, we are satisfied the County met its
burden of proof as to a charge of N.J.A.C. 4A:2-2.3(a)(6).
Petitioner argues the County did not meet its burden of proof
as to N.J.A.C. 4A:2-2.3(a)(7), neglect of duty. There is
sufficient evidence in the record to establish petitioner
neglected the performance of his assigned job duties, namely
ensuring the inmate was properly turned over to the Plainsboro
Police Department per his discharge paperwork. See e.g., In re
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Carter, 191 N.J. 474 (2007) (neglect of duty found where a police
officer fell asleep while on duty). The evidence in the record
supports the Commission's finding petitioner's actions on January
24, 2011 constituted neglect of duty.
Petitioner also argues the County did not meet its burden of
proof for the charge of other sufficient cause, N.J.A.C. 4A:2-
2.3(a)(12), by violating SOP 210. Petitioner argues he exercised
due diligence but was misled by errors in the discharge paperwork
written by others. However, petitioner admitted during testimony
the error was his own notation. His assertion the discharge
paperwork was switched from the time he initially reviewed the
paperwork to when he learned of the mistake is unsupported by the
record. Petitioner was the sergeant in charge of the R&D unit on
January 24, and was therefore responsible to ensure correct
discharge paperwork. SOP 210 D.2 states, "'R&D' Sergeant includes
management and supervision of Detention Floor, Property Storage,
Control Room 3, and the receiving and discharge of inmates. The
R&D Sergeant is required to coordinate efforts closely with the
Classification/Records Lieutenant." Sufficient evidence in the
record supports the ALJ's determination petitioner fell short of
his job requirements per SOP 210, when he discharged the inmate
meant to be transferred to a police department, therefore
satisfying a charge under N.J.A.C. 4A:2-2.3(a)(12).
11 A-2145-15T2
After careful review of the record, we do not consider the
Commission's decision to adopt the ALJ's findings of fact and
conclusions arbitrary, capricious, or unreasonable.
As to the penalty, we find the ten-day working suspension to
be consistent with our case law. In Carter, the New Jersey Supreme
Court discussed progressive discipline for an officer who was
fired for sleeping on duty. Carter, supra, 191 N.J. at 482. The
Court found "some disciplinary infractions are so serious that
removal is appropriate notwithstanding a largely unblemished prior
record." Id. at 484. Reviewing sanctions imposed as a consequence
of disciplinary action, we ask, "whether such punishment is 'so
disproportionate to the offense, in the light of all the
circumstances, as to be shocking to one's sense of fairness.'" In
re Polk License Revocation, 90 N.J. 550, 578 (1982) (quoting Pell
v. Bd. of Educ., 313 N.E.2d 321, 356 (N.Y. 1974)). Additionally,
"[i]n matters involving discipline of police and corrections
officers, public safety concerns may also bear upon the propriety
of the . . . sanction." Carter, supra, 191 N.J. at 485. We do
not substitute our "own views of whether a particular penalty is
correct for those of the body charged with making that decision."
Id. at 486.
Viewing the record in light of our Supreme Court's discussion
in Carter, we do not consider the ten-day suspension to be
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disproportionate because of the public safety concerns. Here, an
inmate was released to the streets of Trenton and when the
transportation team was notified of the mistake, the inmate began
running from the officers. That the inmate was able to be
recaptured and returned to the correctional facility without
incident does not diminish the potential risk to the community.
We find no error in the Commission's final administrative action
upholding the ten-day suspension.
Affirmed.
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