IN THE MATTER OF DANIEL SKRABONJA, ETC. (NEW JERSEY 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NOT FOR PUBLICATION WITHOUT THE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-2516-19
IN THE MATTER OF DANIEL
SKRABONJA, BAYSIDE STATE
PRISON, DEPARTMENT OF
CORRECTIONS.
_____________________________
Argued November 1, 2021 – Decided December 17, 2021
Before Judges Rothstadt and Natali.
On appeal from the Civil Service Commission, Docket
No. 2019-2691.
Kevin P. McCann argued the cause for appellant Daniel
Skrabonja (Chance & McCann, LLC, attorneys;
Matthew Weng, on the briefs).
Jana R. DiCosmo, Deputy Attorney General, argued the
cause for respondent New Jersey Department of
Corrections (Andrew J. Bruck, Acting Attorney
General, attorney; Donna Arons, Assistant Attorney
General, of counsel; Jana R. DiCosmo, on the brief).
Andrew J. Bruck, Acting Attorney General, attorney for
respondent Civil Service Commission (Eric A. Reid,
Deputy Attorney General, on the statement in lieu of
brief).
PER CURIAM
Appellant Daniel Skrabonja appeals from the Civil Service Commission's
(CSC) final administrative decision, adopting an Administrative Law Judge's
(ALJ) recommendation to affirm Bay State Prison's (BSP) termination of his
employment as a senior correction officer (SCO). The termination was based
on Skrabonja having committed nine violations, including conduct unbecoming
a public employee and intentionally falsifying records. Many of them related to
his participation in a scheme with other correction officers (COs) to force
inmates to turn over to the COs commissary items the inmates purchased in
exchange for the inmates being allowed to receive minimal services to which
they were entitled. The violations also related to his failure to make required
log entries, his falsifying other log entries, and his lying to investigators.
Notably, Skrabonja admitted to his misconduct and accepted full responsibility.
On appeal, Skrabonja argues the CSC's decision was arbitrary, capricious,
and unreasonable because it failed to require BSP to apply progressive discipline
to mitigate his penalty in light of (1) his unblemished employment record; (2)
his learning disability; (3) his then recent assignment to the unit where the
scheme was carried out; (4) BSP's violation of his Fifth and Sixth Amendment
rights by threatening him with criminal charges and interviewing him in a
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criminal investigation without providing Miranda1 warnings; and (5) BSP's
failure to report alleged criminal conduct to the county prosecutors.
We affirm because Skrabonja failed to prove the CSC's determination was
an abuse of its discretion, especially in light of Skrabonja's violations and their
relationship to his position as an SCO. Moreover, Skrabonja's removal was
justified and does not shock our sense of fairness despite Skrabonja's
unblemished record because his misconduct was so severe.
The facts leading to Skrabonja's termination were generally not in dispute.
They are summarized as follows. Skrabonja was hired as a CO at BSP in 2012.
Prior to being hired, he had received from the CSC an accommodation of extra
time for the civil service exam because of a learning disability. However, on
his job application, he did not note any accommodations were necessary for him
to perform the duties of CO, nor did he ever request an accommodation while
working because he believed he did not need one and his impairment did not
affect his ability to perform his job. Also, when he was hired, Skrabonja
confirmed his receipt, review, and understanding of the many policies and
procedures his employment with BSP was conditioned on, including the "New
1
Miranda v. Arizona, 384 U.S. 436 (1966).
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Jersey Department of Corrections, Human Resources Bulletin 84-17, As
Amended, Disciplinary Action Policy," (HRB 84-17).
After his employment commenced, Skrabonja witnessed other COs force
inmates to turn over commissary items to receive services. Despite that
knowledge, Skrabonja never reported the misconduct and was not disciplined
for his failure to do so until his involvement in the misconduct was discovered
in 2016. Until 2016, he otherwise performed his duties without incident and in
fact he was promoted to SCO.
On June 17, 2016, Skrabonja began working in "Alpha" unit. The next
day, he witnessed SCO Tyler DeShields force inmates who wanted to shower,
use the telephone, or receive other services, to first place various commissary
items they had purchased into a brown paper bag. Skrabonja later came upon
the bag in an office, looked in the bag, and moved it behind a desk. The contents
of the bag were later secured in an officer's locker, which Skrabonja locked
using a personal lock for which he had the key. While assigned to "Alpha" unit,
Skrabonja also did not log in visitors and falsified other records by stating he
performed duties that he did not perform. Moreover, he sat at the officer's desk
within the unit in a reclining position, with his feet on the desk, and hands behind
his head.
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On June 25, 2016, BSP's Administrative Office received an inmate inquiry
form which complained about DeShields's conduct. The author of the note was
an anonymous inmate, who described the "extortion" by DeShields on June 18,
2016. In the note, the inmate threatened violence if officials did not address the
misconduct.
John Gardner, a senior investigator at BSP, conducted an investigation
into the inmate's claims. On June 30, 2016, Gardner reviewed surveillance video
and observed Skrabonja look inside the bag containing inmates' commissary
items, fold it closed and place it on the floor behind the officers' desk in the unit.
Investigators also observed Skrabonja seated in a reclining position with his feet
on the officer's desk and hands behind his head. The same day, Gardner
conducted a search that included the locker where Skrabonja secured the bag,
and Gardner found the prisoners' property.
On July 15, 2016, Gardner notified Skrabonja that he was subject to an
administrative disciplinary investigation. 2 During an ensuing interview,
2
Skrabonja signed a Weingarten Administrative Rights form indicating he
understood the administrative nature of the investigation and his entitlement to
union representation during questioning. The Weingarten Administrative Rights
form provides notice to an employee of their right to union representation during
an employer's investigation of misconduct. The United States Supreme Court
first defined and recognized this right derived from the National Labor Relations
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Skrabonja lied to investigators as to the events of June 18, 2016, and about
whether he had the key to the locker.
After Gardner completed his investigation, BSP served Skrabonja with a
Preliminary Notice of Disciplinary Action, charging violations under N.J.A.C.
4A:2-2.3(a)(6), conduct unbecoming an employee, N.J.A.C. 4A:2-2.3(a)(12),
other sufficient cause, HRB 84-17, B-1 neglect of duty, loafing, idleness or
willful failure to devote attention to tasks which could result in danger to persons
or property, HRB 84-17, C-8 falsification: intentional misstatement of material
fact in connection with work, employment application, attendance, or in any
record, report, investigation or other proceeding, HRB 84-17, C-11 conduct
unbecoming an employee, HRB 84-17, C-17 possession of contraband on State
property or in State vehicles, HRB 84-17, D-7 violation of administrative
procedures and/or regulations involving safety and security, HRB 84-17, E-1
violation of a rule, regulation, policy, procedure, order or administrative
decision, HRB 84-17, E-2 intentional abuse or misuse of authority or position.
Act (NLRA), 29 U.S.C.S. §§ 151 to 169. NLRB v. J. Weingarten, Inc., 420 U.S.
251 (1975). The New Jersey Supreme Court recognized the similarities between
the NLRA and the Employer-Employee Relations Act, N.J.S.A. 34:13A-1 to -
29, which applies to state employees, and adopted the "Weingarten rule"
requiring notice of this right. In re Univ. of Med. & Dentistry of N.J., 144 N.J.
511 (1996).
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Thereafter, an informal pre-termination hearing was held by a BSP
hearing officer, who found "[m]anagement ha[d] provided sufficient reason to
suspend [Skrabonja] from duty." On October 27 and November 30, 2016, a
Department of Corrections (DOC) hearing officer held a formal hearing, in
which the parties presented and examined witnesses and evidence. Thereafter,
the DOC issued a Final Notice of Disciplinary Action, including a
comprehensive decision which concluded all charges against Skrabonja were
sustained and imposed a disciplinary action of removal despite an unblemished
record because of the high standard DOC employees are held to, which
Skrabonja failed to meet by his serious misconduct.
Skrabonja appealed and the matter was referred to the Office of
Administrative Law, where an ALJ presided over a hearing, and then issued his
decision and recommendation on December 6, 2019. In his decision, the ALJ
summarized Skrabonja's testimony as follows:
During his testimony, he admitted to all charges against
him. He also read a prepared statement . . . into the
record in which he accepted responsibility for his
actions. He apologized for the danger he exposed
everyone to and expressed his deep remorse for the
same. He asked to be given a second chance and to be
permitted to return to his employment as an SCO.
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The ALJ also found Skrabonja was aware COs forced inmates to turn over
their commissary items, possessed a key to a personal lock securing these items
in an officer's locker, intentionally provided false information to investigators,
was sitting with his hands behind his head and feet on the unit's officer's desk,
being inattentive to inmates in his care, made false entries and failed to make
required entries in logbooks. Those facts, considered alongside Skrabonja's and
other witnesses' testimony, and controlling case law, led to the ALJ's
conclusions that Skrabonja violated each charge against him.
Finally, the ALJ determined the appropriate penalty for Skrabonja's
serious violations was removal. The judge considered HRB 84-17 to determine
the range of penalties authorized for Skrabonja's misconduct, which included
removal. Skrabonja argued his penalty should have been mitigated because he
was new to "Alpha" unit. The judge concluded Skrabonja's argument was
meritless because "[h]is conduct would be considered egregious anywhere
within the walls of the BSP."
Skrabonja also contended his learning disability should have been a
mitigating factor. The judge gave "very little weight" to this argument because
Skrabonja testified "he never requested an accommodation at the BSP because
he did not require one," and "no competent evidence [was] presented that his
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prior diagnosis of attention deficit, hyperactivity disorder (ADHD)3 affected his
ability to know right from wrong."
On January 15, 2020, the CSC issued its Final Administrative Action that
"accepted and adopted the [f]indings of [f]act and [c]onclusion[s]" of the ALJ's
initial recommendation dated December 6, 2019, found "the action of the
appointing authority in removing Skrabonja was justified," affirmed BSP's
action, and dismissed Skrabonja's appeal. This appeal followed.
On appeal, Skrabonja contends the CSC's decision was arbitrary and
capricious because "the agency violated [its] princip[les]" by "failing to apply
progressive discipline" in response to his misconduct, especially since he had
no prior history of misconduct. Skrabonja also contends its decision to remove
him "shocks one[']s sense of fairness." He also argues removal was
inappropriate where, "during the interview with [Gardner], [Skrabonja] was
threatened with criminal charges and [ten] years in jail but was never informed
of his right to counsel"; "the charges were never forwarded to the county
prosecutor for review prior to [BSP] issuing such a threat in violation of
3
"The essential feature of [ADHD] is a persistent pattern of inattention and/or
hyperactivity-impulsivity that interferes with functioning or development." Am.
Psychiatric Ass'n, Diagnostic and Statistical Manual of Mental Disorders 61 (5th
ed. 2013).
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Attorney General guidelines"; he was new to "Alpha" unit; and "[he] has a
learning disability" which delayed his ability to tell right from wrong. We
disagree.
Our review of a final agency decision is limited, and its decision is
disturbed only upon a showing that it was "arbitrary, capricious or unreasonable,
or that it lacked fair support in the evidence." In re Carter, 191 N.J. 474, 482
(2007) (quoting Campbell v. Dep't of Civ. Serv., 39 N.J. 556, 562 (1963)). In
reviewing agency determinations, we are generally limited to determining:
(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.
[Id. at 482-83 (quoting Mazza v. Bd. of Trs., 143 N.J.
22, 25 (1995)).]
When an agency's decision meets those criteria, then we owe "substantial
deference to the agency's expertise and superior knowledge of a particular field."
In re Herrmann, 192 N.J. 19, 28 (2007) (citations omitted). Also, although we
are not bound by an "agency's interpretation of a statute or its determination of
a strictly legal issue," if the agency's decision is supported by substantial
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evidence, we "may not substitute [our] own judgment for the agency's even
though [we] might have reached a different result." Carter, 191 N.J. at 483(citations omitted).
Similarly, our review of disciplinary sanctions is limited by the same
deferential standard. Herrmann, 192 N.J. at 28. With that deference in mind,
the test when reviewing administrative sanctions is "whether such punishment
is so disproportionate to the offense, in light of all the circumstance s, as to be
shocking to one's sense of fairness." Id. at 28-29 (quoting In re Polk, 90 N.J.
550, 578 (1982)). "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."
Id. at 29.
The CSC has broad discretion to remove employees, including SCOs.
Herrmann, 192 N.J. at 22 (citing N.J.S.A. 11A:2-6). Still, the CSC must decide
whether removal is appropriate after a hearing, N.J.S.A. 11A:2-6; it must follow
the law; its findings of fact must be supported by substantial evidence; and its
conclusion cannot be clearly unjustified by those facts. Carter, 191 N.J. at 482-
83.
Here, the parties do not dispute whether a fair hearing was held or whether
there was substantial evidence that Skrabonja's actions violated the conditions
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of his employment as defined by the applicable regulations and the controlling
handbook. In fact, Skrabonja admitted to being aware officers forced inmates
to turn over their commissary items, storing those items in a locker secured by
a personal lock, for which he held the key, making false entries and failing to
make proper entries in logbooks, sitting with his hands behind his head and feet
on the unit's officer's desk, being inattentive to inmates in his care, misusing his
authority and position as an SCO, and lying to investigators about his
misconduct on June 18, 2016. Therefore, it is undisputed the CSC's finding, that
discipline was warranted, was supported by substantial evidence.
Turning to the issue of Skrabonja's removal being sustainable despite the
lack of progressive discipline, we initially observe again that agencies have
broad discretion in deciding a disciplinary action to the extent that the action
does not shock one's sense of fairness. Herrmann, 192 N.J. at 28-29. We also
note removal for a first offense is expressly provided for in HRB 84-17, despite
its purpose to "foster progressive discipline." HRB 84-17 at 2.
When followed, progressive discipline manifests in either a gradually
increasing penalty for reoffenders or mitigating the penalty for a current offense
if, after considering mitigating or aggravating factors, the authorized penalty is
inappropriate. Herrmann, 192 N.J. at 31, 33. Factors that may be considered
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are "length of service," "total employment record," or "other legitimate
circumstances" that would "cause [the penalty] to be inappropriate." HRB 84 -
17 at 2.
As Skrabonja acknowledges on appeal, progressive discipline is not
mandated in all cases. In cases where progressive discipline may apply, the CSC
must consider the seriousness of the charges when making a final determination.
Henry v. Rahway State Prison, 81 N.J. 571, 580 (1980).
Reviewing courts will generally uphold removal without progressive
discipline when reviewing an agency's disciplinary action where (1) "the
misconduct is severe," (2) "when [the misconduct] is unbecoming to the
employee's position or renders the employee unsuitable for continuation in the
position," or (3) "when application of the principle would be contrary to the
public interest." Herrmann, 192 N.J. at 33.
In considering the appropriateness of an SCO's removal, it must be with
the understanding that COs, like police officers, are held to a higher standard,
because they are deemed by statute to be "peace officers" with "full police
powers," see N.J.S.A. 2A:154-4, and their "primary duty is to enforce and
uphold the law" and to "represent[] law and order to the citizenry [by]
present[ing] an image of personal integrity and dependability in order to have
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the respect of the public." Twp. of Moorestown v. Armstrong, 89 N.J. Super.
560, 566 (App. Div. 1965); see, e.g., Henry, 81 N.J. at 579-80 (finding removal
warranted despite no history of misconduct because "[t]he falsification of a
report by an SCO can disrupt and destroy order and discipline in a prison");
Bowden v. Bayside State Prison, 268 N.J. Super. 301, 306 (App. Div. 1993)
(finding removal warranted despite no prior major disciplinary record where
SCO committed conduct unbecoming an employee by playing cards with
inmates and paying gambling debts with cigarettes).
Against this backdrop, here, we conclude it was neither arbitrary,
capricious nor unreasonable for the CSC to affirm Skrabonja's removal without
progressive discipline. See Herrmann, 192 N.J. at 33. The CSC's final decision
to uphold Skrabonja's removal was supported by the credible evidence, was
within its discretion, and did not shock our sense of fairness.
We find no merit to Skrabonja's remaining arguments to the contrary ,
substantially for the reasons expressed by the ALJ in the written decision
adopted by the CSC. We add only the following comments.
Skrabonja's argument that he lied to investigators because they coerced
his statements by threatening him with criminal charges is belied by his
testimony "[t]hat lying is all on me." And, in any event, Gardner testified he did
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not speak to Skrabonja about criminal charges and Skrabonja did not know
whether he was facing any charges.
Also, Skrabonja's Fifth and Sixth Amendment rights were not violated and
BSP did not fail to follow policy that required it to alert the prosecutor of
possible criminal charges both fail. The Fifth Amendment right against self-
incrimination applies to "criminal case[s]," and the Sixth Amendment right to
counsel applies to "criminal proceedings," U.S. Const. amends. V and VI,
neither right applies to cases civil in nature. See, e.g., State v. Kennedy, 97 N.J.
278, 284-85 (1984); State v. Reed, 133 N.J. 237, 252 (1993). Nothing about
Skrabonja's administrative investigation was criminal in nature. In fact,
Skrabonja signed the Weingarten Administrative Rights form stating he
understood the interview was part of an administrative investigation and not
relating to criminal charges. Also, the Attorney General's Internal Affairs Policy
and Procedure requires complaints to be thoroughly investigated, and immediate
notification to county prosecutors only "[w]here preliminary investigation
indicates the possibility of a criminal act on the part of the accused officer ."
Off. Att'y Gen., Internal Affairs Policy & Procedures (Rev. Nov. 1992). Here,
Gardner thoroughly investigated the complaint against DeShields, which
uncovered Skrabonja's misconduct. The inmate complaint alleged DeShields
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extorted inmates, but did not accuse Skrabonja of any criminal misconduct. And
Gardner's investigation did not lead to any criminal allegations or charges.
Equally without merit is Skrabonja's argument that his learning disability
and being newly assigned to "Alpha" unit explained his conduct. Skrabonja
testified his learning disability absolutely did not limit or impair his ability to
perform his duties, which included identifying wrongful conduct. And, he
testified this misconduct had occurred in other units during his nearly four years
of being employed by BSP and he failed to report it. He had nearly four years
before entering "Alpha" unit to realize the wrongfulness of his conduct, not just
two days.
Skrabonja failed to provide any legitimate circumstances to mitigate his
removal as a response to his severe misconduct or to otherwise render the CSC's
final decision to remove him shocking to our sense of fairness.
Affirmed.
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