On appeal from the Superior Court of New Jersey, Law Division, Camden County, L-56-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lintner and Sabatino.
Plaintiff, Donna Danford, a lieutenant and acting shift commander employed by the Camden County Department of Corrections, was served on November 10, 2005, with a draft notice of minor discipline action for neglect of duty, unbecoming conduct, and departmental reports, for failing to tour the correctional facility on October 16, 2005, pursuant to General Order 145 Section C requiring all Shift Commanders to tour all housing areas and include that information in the shift commander's log. The draft notice imposed a fine of $599.85, the equivalent of two days' pay.
On November 15, 2005, Danford filed an administrative appeal to Warden Eric Taylor. On November 17, 2005, Taylor found Danford guilty of unbecoming conduct, 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, N.J.A.C. 4A:2-2.3(a)(11), for violating Order 145.
On November 11, 2005, Danford executed an AGREEMENT OF ACCEPT A FINE IN LIEU OF SUSPENSION (Agreement). The Agreement provided that "the Employer and the Employee, the parties herein, are desirous of resolving these charges which are the subject of this agreement." In furtherance of that desire, the Agreement provided that Danford: "acknowledges that [s]he is guilty of the charges set forth in the Notice of Minor Disciplinary Action;" and "will be fined in lieu of a suspension in the amount of $599.85 . . . to be deducted as per G/O 003."*fn1
Danford also agreed to waive "all rights arising from this incident and agree[d] not to appeal to any aspect of this matter." The Agreement also provided that the parties represented that they (1) "carefully read and fully underst[ood]" the Agreement," (2) "have [had] the opportunity to review and discuss the same with their attorneys and/or union representatives," and (3) "voluntarily execut[ed the] Agreement without any duress or coercion." The Agreement was also signed by Danford's Union representative and the Deputy Warden.
On December 22, 2005, Danford wrote to the Deputy Warden, claiming that she signed the Agreement under duress and stating that she "intend[s] to pursue the validity of the charge." On January 4, 2006, Danford filed a Complaint in Lieu of Prerogative Writs seeking de novo review, pursuant to Romanowski v. Brick Twp., 185 N.J. Super. 197 (Law Div. 1982), aff'd, 192 N.J. Super. 79 (App. Div. 1983). After reviewing the evidence, Judge Orlando found from a preponderance of the evidence that the Corrections Department Policy: (1) required Shift Commanders to personally tour the correctional facility; (2) does not give shift commanders the authority to delegate the responsibility to a supervisor; and (3) was emphasized to Danford at a meeting on April 7, 2005. The Judge also determined that the evidence established that Danford had, by her own admission, violated the orders, and is guilty of the charges. Judge Orlando further found that the Agreement between Danford and defendants was an enforceable contract to settle and, accordingly, dismissed the complaint.
On appeal, Danford raises the following points:
I. LIEUTENANT DANFORD DID NOT VIOLATE THE POLICY OF THE CAMDEN COUNTY CORRECTIONS FACILITY AND CAMDEN CANNOT ESTABLISH THAT SHE VIOLATED THE OFFENSES WITH WHICH SHE WAS CHARGED.
II. IF THE COURT BELIEVES LIEUTENANT DANFORD DID VIOLATE THE POLICY OF THE CAMDEN COUNTY CORRECTIONS FACILITY THE DEFICIENCY, IF ANY, WAS BECAUSE CAMDEN DID NOT TRAIN HER PROPERLY OR NOTIFY HER OF ANY DEFICIENCIES.
III. THE DISCIPLINARY ACTION TAKEN AGAINST LIEUTENANT DANFORD WAS ARBITRARY, CAPRICIOUS AND AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE PRESENTED.
IV. THE DISCIPLINARY ACTION TAKEN AGAINST LIEUTENANT DANFORD WAS WITHOUT AN OPPORTUNITY TO HAVE A UNION REPRESENTATIVE PRESENT, WAS ARBITRARY, CAPRICIOUS AND AGAINST ...