IN THE MATTER OF GIOVANI COLON, DEPARTMENT OF CORRECTIONS(CIVIL SERVICE COMMISSION)

NOT FOR PUBLICATION WITHOUT THE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-1726-15T4
IN THE MATTER OF
GIOVANI COLON,
DEPARTMENT OF CORRECTIONS.
________________________________
Argued May 18, 2017 – Decided July 14, 2017
Before Judges Hoffman and Whipple.
On appeal from Civil Service Commission,
Docket No. 2016-1452.
Colin M. Lynch argued the cause for appellant
Giovani Colon (Zazzali, Fagella, Nowak,
Kleinbaum & Friedman, attorneys; Mr. Lynch,
of counsel and on the briefs; Kaitlyn E.
Dunphy, on the brief).
Peter H. Jenkins, Deputy Attorney General
argued the cause for respondent Department of
Corrections (Christopher S. Porrino, Attorney
General, attorney; Melissa Dutton Schaffer,
Assistant Attorney General, of counsel; Mr.
Jenkins, on the brief).
Christopher S. Porrino, Attorney General,
attorney for respondent Civil Service
Commission (Pamela N. Ullman, Deputy Attorney
General, on the statement in lieu of brief).
PER CURIAM
Petitioner, Giovani Colon, appeals from a September 3, 2015
final administrative action from the Civil Service Commission
(Commission) and a December 17, 2015, denial of reconsideration
of a Department of Correction (DOC) disciplinary action against
petitioner removing him from his position for using excessive
force against an inmate. We affirm.
Petitioner worked for the DOC as a senior corrections officer
at Edna Mahan Correctional Facility for Women. This case stems
from a January 26, 2015 incident between petitioner and an inmate,
C.B.1 C.B. is a special needs inmate receiving psychiatric care.
C.B. approached the control booth next to the day room where
petitioner was working and asked for pictures to be returned to
her. C.B. had recently been released from detention and was told
by another inmate petitioner had collected her belongings.
Petitioner told C.B. he did not have her pictures, the day room
was closed, and C.B. must return to her housing unit. C.B. left
but returned and wanted to look in the office herself for the
pictures. Petitioner again directed C.B. to return to her housing
unit. C.B. began to leave but stopped and said something over her
shoulder. According to petitioner, C.B. threatened that "she was
not going down to her wing until she punched [him] in the face."
1
We use initials to protect the identity of the inmate.
2 A-1726-15T4
The interaction was captured on the correctional facility's
security cameras from two angles. The video shows C.B. approaching
the control booth twice; the second time when she began to walk
away, she stopped and said something over her shoulder. Next, the
video shows petitioner walking towards C.B., who turned and
continued to walk back towards the housing unit. Petitioner closed
the gap between himself and C.B., standing inches from her. From
the camera's angle, C.B. appears to be clenching and unclenching
her left hand. Petitioner pushed C.B. The push caused C.B. to
stumble, and eventually petitioner forcefully pushed her to the
floor. C.B. tried to punch petitioner, who testified he "took her
down" and "only used the force necessary to control her." However,
the video shows petitioner punching C.B. while she was on the
floor. Petitioner testified C.B. continued to resist and was
unaware of how C.B. endured a bump on her head. A "Code 33"2 was
called, bringing officers to the scene.
When a Code 33 is called, the shift commander reviews any
surveillance video of the incident. Center Control Lieutenant
Gerald Petti reviewed the video, observed petitioner pushing an
inmate, and referred the incident to the Special Investigation
Division.
2
A Code 33 refers to a fight within the correction facility.
3 A-1726-15T4
A Preliminary Notice of Disciplinary Action was served on
petitioner on March 12, 2015. Following a hearing, a final notice
of disciplinary action was issued, sustaining charges pursuant to
N.J.A.C. 4A:2-2.3(a)(6), conduct unbecoming a public employee, and
N.J.A.C. 4A:2-2.3(a)(12), other sufficient cause, which included
violation of the Human Resources Bulletin 84-17 as amended for
inappropriate physical contact or mistreatment of an inmate,
patient, client, resident or employee. Petitioner was removed
from his position, effective April 6, 2015. Petitioner requested
a hearing, and the matter was transmitted to the Office of
Administrative Law as a contested case and heard by an
Administrative Law Judge (ALJ) on July 9, 2015.
Senior Investigator Renee Caldwell testified as to the
results of her investigation into the January 26 incident. After
reviewing the video, Caldwell interviewed C.B. and took a written
statement. C.B. explained she approached the officer's area to
ask about her pictures, and petitioner began screaming at her to
go to her wing, cursing and saying he had no pictures. She
described the incident, stating petitioner had followed her,
shoved her, and pushed her to the floor where she hit her head.
She described petitioner continuing to punch her in the head and
face.
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Petitioner did not speak to Caldwell, but he provided a
special custody report following the incident:
I explained to Inmate [C.B.] that the day room
was now closed and that she would have to
return to the wing[.] [A]s I walked over to
explain that Inmate [C.B.] stated "she was
going to punch me in my face." Due to the
immediate threat[,] I pushed the inmate away
to create distance. At that time[,] Inmate
[C.B.] tried to punch me. I then took the
inmate to the ground and attempted to handcuff
the inmate.
Major Allen Tompkins testified regarding the training
officers receive regarding the appropriate use of force. Tompkins
testified using the appropriate amount of force is particularly
important in the prison setting because situations can escalate
quickly, and Tompkins agreed an officer should take extra efforts
to avoid antagonizing a special needs inmate.
After reviewing the evidence, the ALJ issued an initial
decision dismissing the charge of conduct unbecoming but sustained
the charge of other sufficient cause as a violation of DOC
policies. The ALJ found petitioner shoved C.B. believing he was
justified under the DOC use of force policy because C.B. was going
to punch him. However, the ALJ found petitioner violated DOC
policy when he chose to follow C.B. rather than notify his
supervisor about a threat, and he made the situation worse by
coming within inches of C.B. The ALJ concluded the penalty of
5 A-1726-15T4
removal was excessive for petitioner's conduct and imposed a forty-
day suspension.
After reviewing the record, the Commission entered a Final
Administrative action on September 3, 2015, rejecting the ALJ's
decision and sustaining the charges and penalty imposed by the
DOC. The Commission also concluded removal was the only
appropriate penalty in light of petitioner's prior disciplinary
history. The Commission denied reconsideration of the Final
Administrative action on December 17, 2015. This appeal followed.
On appeal, petitioner argues the ALJ and the Commission
violated his procedural due process rights by sustaining charges
not specified in the notices of disciplinary action. He also
argues the penalty of removal was unwarranted and only progressive
discipline was warranted.
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. 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
6 A-1726-15T4
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)). Additionally,
a presumption of reasonableness attaches to the actions of
administrative agencies. Newark v. Nat. Res. Council, 82 N.J.
530, 539-40 (1980).
Here, petitioner did not overcome the presumption of
reasonableness. The record contains sufficient credible evidence
of his use of excessive force by shoving C.B. and engaging in
conduct unbecoming of an employee. The ALJ found petitioner
escalated the situation unnecessarily. The Commission agreed with
the ALJ's factual findings and determined petitioner's conduct was
not acceptable.
Petitioner served as a corrections officer with full police
power pursuant to N.J.S.A. 2A:154-4, and as such, he was held to
a higher standard of conduct than other public employees and he
was expected to act in a reasonable manner. See In re Phillips,
117 N.J. 567, 576 (1990); Moorestown Twp. v. Armstrong, 89 N.J.
7 A-1726-15T4
Super. 560, 566 (App. Div. 1965). "A finding of misconduct by a
police officer need not be predicated on the violation of any
particular department rule or regulation." Phillips, supra, 117
N.J. at 576 (citing In re Emmons, 63 N.J. Super. 136, 140 (App.
Div. 1960)).
In Emmons, we upheld suspension for "conduct unbecoming a
police officer" based on an officer's refusal to cooperate in an
examination to determine his sobriety following an off-duty
automobile accident. Emmons, supra, 63 N.J. Super. at 142. We
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." Id. at 140 (citing
Asbury Park v. Dep't of Civil 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. (alteration in original). Here, petitioner engaged in
conduct, which violated an implicit standard of good behavior,
applicable to corrections officers.
Petitioner argues the Commission's decision to remove him for
violating an uncharged and unwritten policy that he must keep an
8 A-1726-15T4
arm's length away from an inmate and call a supervisor if an inmate
is insubordinate is arbitrary and capricious. We disagree. The
Corrections Academy training policy instructs officers to keep an
arm's length between them and inmates. Moreover, petitioner was
on notice the entire incident formed the basis of these charges,
and thus, he was on notice of the underlying charges.
Petitioner also argues the penalty of removal is excessive.
We disagree. A deferential standard applies to our review of
disciplinary sanctions. See Knoble v. Waterfront Comm'n of N.Y.
Harbor, 67 N.J. 427, 431-32 (1975). We alter a sanction imposed
by an administrative agency only "when necessary to bring the
agency's action into conformity with its delegated authority.
[This court] has no power to act independently as an administrative
tribunal or to substitute its judgment for that of the agency."
In re Polk, 90 N.J. 550, 578 (1982). 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." Ibid. "The
threshold of 'shocking' the court's sense of fairness is a
difficult one, not met whenever the court would have reached a
different result." In re Herrmann, 192 N.J. 19, 28-29, (2007).
Moreover, in Phillips, our Supreme Court recognized a tribunal may
9 A-1726-15T4
consider an employee's past record "when determining the
appropriate penalty for the current offense." Phillips, supra,
117 N.J. at 581.
The Commission considered petitioner's conduct egregious
because he did not exercise the required restraint and escalated
the incident unnecessarily. The Commission rejected progressive
discipline considering petitioner's egregious conduct and his
prior disciplinary record. Under our standard of review, we see
no basis to interfere with that determination.
Affirmed.
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