IN THE MATTER OF PETER FARLOW, CAMDEN COUNTY CORRECTIONAL FACILITY (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NOT FOR PUBLICATION WITHOUT THE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-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.
A-5617-15T1
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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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