IN THE MATTER OF MAURICE JACKSON, ETC. (NEW JERSEY CIVIL SERVICE COMMISSION) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE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-5566-18T2
IN THE MATTER OF
MAURICE JACKSON,
MERCER COUNTY
CORRECTIONS CENTER.
____________________________
Submitted January 6, 2021 – Decided January 25, 2021
Before Judges Whipple and Firko.
On appeal from the New Jersey Civil Service
Commission, Docket No. 2018-2491.
Alterman & Associates, LLC, attorneys for petitioner
(Stuart J. Alterman and Timothy J. Prol, on the briefs).
Paul R. Adezio, Mercer County Counsel, attorney for
respondent Mercer County Corrections Center (Lynn
Suzette Price, Assistant County Counsel, on the brief).
Gurbir S. Grewal, Attorney General, attorney for
respondent New Jersey Civil Service Commission
(Jonathan S. Sussman, Deputy Attorney General, on the
statement in lieu of brief).
PER CURIAM
Petitioner Maurice Jackson appeals from a June 26, 2019 final
administration action of the Civil Service Commission (Commission) upholding
his fifty-day suspension. We affirm.
We discern the following from the hearing record. Petitioner worked for
the Mercer County Corrections Center (MCCC) as a corrections officer. On
October 24, 2017, petitioner was assigned to control room two (CR2), which
serves as a communications link and controls traffic to and from the units. CR2
is the base of operations for the issuance of equipment, keys, and paperwork.
Petitioner was responsible for monitoring activities within the jail during the
overnight shift and ensuring "everything was running normally." Part of his
responsibilities included reviewing monitors and operating the control panel that
opens the cell doors to two pods within MCCC, A pod and B pod.
On that date, another corrections officer, Sergeant Kenneth Fitzpatrick,
was "doing rounds" through A pod, B pod, medical, and APC units to ensure the
safety and security of all officers and inmates. During these rounds, Sergeant
Fitzpatrick approached door A35, which leads to MCCC's maximum security
unit and is controlled by the panel in CR2. Sergeant Fitzpatrick requested over
the radio that the door be opened by petitioner, but the request went unanswered.
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A second call was made to CR2 to alert petitioner that Sergeant Fitzpatrick was
at the door.
After multiple radio calls went unanswered, Captain Michael Kownacki,
the shift commander for the 11:00 p.m. to 7:00 a.m. shift, adjusted the monitor
in the master control room to ascertain why the door was not being opened.
Captain Kownacki then observed petitioner "seated in the chair with his back
facing the camera." Petitioner was eventually aroused by a phone call or a radio
transmission from another officer and reached for the control panel to open the
door. Because petitioner did not respond to the radio calls to open the door, he
was relieved from his post for the remainder of his shift, and an incident report
was prepared. Petitioner claimed he did not hear the transmission because his
radio was not on an appropriate listening level because he had used the speaker
phone and forgot to reset the volume.
On November 14, 2017, the MCCC issued a Preliminary Notice of
Disciplinary Action (PNDA) to petitioner setting forth charges arising from his
failure to respond to the radio calls to open door A35. The PNDA charged
petitioner with conduct unbecoming a public employee, N.J.A.C. 4A:2-
2.3(a)(6); neglect of duty, N.J.A.C. 4A:2-2.3(a)(7); and other sufficient cause,
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N.J.A.C. 4A:2-2(a)(12), for sleeping while on duty, in violation of the Mercer
County Public Safety Table of Offenses and Penalties.
On January 25, 2018, the MCCC held a departmental disciplinary hearing
sustaining the charges. On February 16, 2018, the MCCC issued a Final Notice
of Disciplinary Action (FNDA) sustaining all charges listed in the PNDA and
proposed a fifty-day working suspension penalty. Petitioner appealed the
determination to the Commission, which transmitted the appeal to the Office of
Administrative Law (OAL) to be heard as a contested case pursuant to N.J.S.A.
40A:14-202(d).
The OAL heard the matter on February 13, 2019. The MCCC presented
the testimony of Captain Kownacki, the shift commander on the day in question,
Sergeant Fitzpatrick, who placed the calls to open door A35, and Phyllis Oliver,
the retired Deputy Warden of MCCC. Oliver testified she reviewed the video
of the incident, and it appeared petitioner was asleep during his shift. Petitioner
testified on his own behalf. The AOL allowed the parties to file post-hearing
submissions until May 15, 2019.
After reviewing the evidence, the Administrative Law Judge (ALJ) issued
a twenty-three-page initial decision sustaining all charges against petitioner.
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The ALJ found petitioner's testimony was inconsistent, incredulous, and self-
serving stating:
This account of events . . . runs contrary to
[petitioner's] testimony that, when working the "A
Shift" or overnight shift, noise can travel from the
control room and into the living units of MCCC.
[Petitioner] explained that he turns the volume on his
radio down so the sound . . . does not carry into the pods
where it can awaken the inmates who should be asleep
during this time. . . . In light of this practical motivation
to minimize unnecessary noise when working in the
control room during an overnight shift, it would further
seem to reason, however, that if the [petitioner] needed
to make or receive phone calls during that shift, he
would avoid using the speaker phone since that would
presumably generate the same type of conversational
noise he was trying to avoid by keeping his radio at a
low level.
After reviewing the surveillance video, the ALJ determined:
[Petitioner] was asleep in his chair on duty at MCCC
on October 24, 2017, from approximately 3:15 a.m.
until approximately 3:26 a.m. During this period, the
[petitioner] can be observed in the surveillance video
. . . sitting in his chair, not moving with his head
noticeably tilting towards, and possibly resting on, his
left shoulder. The [petitioner] does not change his
position during this time to give himself a field of view
of the monitor that is positioned behind his left shoulder
and, despite the [petitioner's] testimony that he could
see the monitor from where he was seated, the monitor
and its contents were outside his field of vision from
where he was seated as his head can be observed to be
facing away from the monitor during this time.
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The ALJ concluded that the MCCC had proven that the charges were supported
by the evidence. Petitioner appealed the matter to the Commission. On July 31,
2019, the Commission, after conducting its review and making an independent
evaluation, affirmed the charges and dismissed petitioner's appeal. This appeal
followed.
Petitioner has raised three points but essentially argues that the
Commission's decision was "arbitrary, capricious and unreasonable" because it
was based on the ALJ's factual findings and credibility determinations, which
were not supported by substantial credible evidence and upheld a penalty that
was "unwarranted," "excessive," and "contrary to the principles of progressive
discipline." In addition, petitioner asserts the Commission erred as a matter of
law by finding the MCCC satisfied its burden of proof because the evidence was
in "equipoise." We reject these arguments.
Our review of agency action is limited. "An appellate court ordinarily
will reverse the decision of an administrative agency 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. Dept.
of Corr., 382 N.J. Super. 18, 23 (App. Div. 2005) (quoting Henry v. Rahway
State Prison, 81 N.J. 571, 579-80 (1980)). "[A]n administrative agency's
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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); Henry, 81 N.J. at 579-80). Additionally, a
presumption of reasonableness attaches to the actions of administrative
agencies. City of Newark v. Nat. Res. Council in Dep't of Env'tl Prot., 82 N.J.
530, 539-40 (1980). We defer to the expertise of agencies where substantial
evidence supports the agency's determination. In re Stallworth, 208 N.J. 182,
194 (2011). Accordingly, the findings of the agency should not be reversed
because they are based on "sufficient, competent, and credible evidence."
N.J.S.A. 52:14B-10(c).
Moreover, we "defer to [the ALJ's] credibility findings that are often
influenced by matters such as observations of the character and demeanor of
witnesses and common human experience that are not transmitted by the
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record," State v. Locurto, 157 N.J. 463, 474 (1999) (citing State v. Jamerson,
153 N.J. 318, 341 (1998); Dolson v. Anastasia, 55 N.J. 2, 7 (1969); State v.
Johnson, 42 N.J. 146, 161 (1964)), giving "due regard to the opportunity of the
one who heard the witnesses to judge their credibility." Logan v. Bd. of Rev.,
299 N.J. Super. 346, 348 (App. Div. 1997) (citing Jackson v. Concord Co., 54
N.J. 113, 117-18 (1969)).
Petitioner argues that the record does not support the charge of conduct
unbecoming a public employee, and the MCCC did not meet its burden of proof
as to N.J.A.C. 4A:2-2.3(a)(6). Rather, petitioner highlights that: (1) "[n]one of
the witnesses saw [him] sleeping"; (2) the door was opened after he answered
the phone; (3) video footage showed him moving at various points during his
shift; (4) his eyes were not visible on the video, making it difficult to determine
whether he was sleeping; (5) he made a log detailing activities he undertook
during his shift; and (6) he testified that he was awake. We reject petitioner's
argument.
Conduct unbecoming refers to "any conduct which adversely affects the
morale or efficiency of the bureau . . . [or] which has a tendency to destroy
public respect for municipal services." Karins v. Atl. City, 152 N.J. 532, 554
(1998) (quoting In re Emmons, 63 N.J. Super. 136, 140 (App. Div. 1960)
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(quoting In re Zeber, 156 A.2d 821, 825 (1959))). The conduct in question can
be sufficient if it is "'such as to offend publicly accepted standards of decency.'"
Id. at 555 (quoting In re Zeber, 156 A.2d at 825).
Discussing conduct unbecoming an officer, we have said, "[A] finding of
misconduct . . . may be based merely upon the violation of the implicit standard
of good behavior which devolves upon one who stands in the public eye as an
upholder of that which is morally and legally correct." In re Emmons, 63 N.J.
Super. at 140 (citing Asbury Park v. Dep't of Civ. Serv., 17 N.J. 419, 429
(1955)). We defined conduct unbecoming an officer as "'any conduct which
adversely affects the morale or efficiency of the bureau . . . (or) which has a
tendency to destroy public respect for municipal employees and confidence in
the operation of municipal services.'" Ibid. (quoting In re Zeber, 156 A.2d at
825). The agency's finding that petitioner was asleep is supported by substantial
evidence in the record, thus the ALJ's determination that petitioner's violations
constituted conduct unbecoming an officer is not arbitrary, capricious or
unreasonable.
We also emphasize that adherence to order and procedure in prisons is
critical, and violating protocol has the potential to subvert order, which can
easily escalate in such a highly charged environment. Bowden v. Bayside State
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Prison Dept. of Corr., 268 N.J. Super. 301, 306 (App. Div. 1993); see also
Henry, 81 N.J. at 579 ("Maintaining discipline within law enforcement agencies
is important for the safety and security of the public.").
Finally, we address petitioner's argument that the seriousness of the
incident does not warrant a fifty-day suspension. He also contends the
suspension is contrary to the principles of progressive discipline. Again, we
disagree.
"A reviewing court should alter a sanction imposed by an administrative
agency only 'when necessary to bring the agency's action into conformity with
its delegated authority.'" In re Herrmann, 192 N.J. 19, 28 (2007) (quoting In re
Polk, 90 N.J. 550, 578 (1982)). A reviewing court "has no power to act
independently as an administrative tribunal or to substitute its judgment for that
of the agency." Ibid. (quoting Polk, 90 N.J. at 578). When reviewing an
agency's disciplinary action, we consider "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 (quoting Polk, 90 N.J. at 578).
Under the concept of progressive discipline, "discipline based in part on
the consideration of past misconduct can be a factor in the determination of the
appropriate penalty for present misconduct." Hermann, 192 N.J. at 29. This
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concept is utilized in two ways. "[P]rinciples of progressive discipline can
support the imposition of a more severe penalty for a public employee who
engages in habitual misconduct." Id. at 31. On the other hand, progressive
discipline has been used "to mitigate the penalty for a current offense." Id. at
33. In other words, progressive discipline can result in the downgrading of a
penalty when an employee "has a substantial record of employment that is
largely or totally unblemished by significant disciplinary infractions." Ibid.Progressive discipline, however, is not "a fixed and immutable rule to be
followed without question." In re Carter, 191 N.J. 474, 484 (2007).
"[P]rogressive discipline is not a necessary consideration when reviewing an
agency['s] . . . penalty 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." Hermann, 19 N.J. at 33. It can be bypassed "when the employee's
position involves public safety and the misconduct causes risk of harm to
persons or property." Ibid.
Because corrections officers are "empowered to exercise full police
powers," N.J.S.A. 2A:154-4, they represent "law and order to the citizenry and
must present an image of personal integrity and dependability in order to have
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the respect of the public." In re Phillips, 117 N.J. 567, 576 (1990) (quoting Twp.
of Moorestown v. Armstrong, 89 N.J. Super. 560, 566 (App. Div. 1965)); see
also Bowden, 268 N.J. Super. at 305-06 (noting the great importance of
maintaining order and discipline within a prison). Therefore, "[i]n matters
involving the discipline of police and corrections officers, public safety
concerns may also bear upon the propriety of the . . . sanction." Carter, 191 N.J.
at 485.
Viewing the record in light of our Supreme Court's decision in Carter, we
do not consider the fifty-day suspension to be disproportionate because of public
safety concerns. We reject the argument that the suspension was arbitrary,
capricious, and unreasonable.
We conclude that sufficient, competent, and credible evidence in the
record supports the Commission's final disciplinary action. Under our standard
of review, we see no basis to interfere with that determination. Any additional
arguments raised in petitioner's submissions that have not been specifically
addressed were found to lack sufficient merit to warrant discussion in a written
opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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