On appeal from a Final Administrative Decision of the Civil Service Commission, CSC Docket No. 2008-1508.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 3, 2010
Before Judges Graves and J.N. Harris.
Appellant Matthew VanDerVelden, a police sergeant employed by the City of Paterson Police Department (the Department), appeals from a final administrative decision of the Civil Service Commission (the Commission) that adopted the findings of the Administrative Law Judge (ALJ), but increased appellant's penalty from a sixty-day suspension to a six-month suspension. In an initial decision dated October 29, 2008, the ALJ sustained the following administrative charges against appellant: conduct unbecoming a public employee, in violation of N.J.A.C. 4A:2-2.3(a)(6); neglect of duty, in violation of N.J.A.C. 4A:2-2.3(a)(7); and other sufficient cause for discipline, in violation of N.J.A.C. 4A:2-2.3(a)(11). The ALJ also found appellant had committed several violations of a City of Paterson Ordinance adopted September 21, 1996, entitled "Ordinance Establishing and Promulgating the Rules and Regulations for the Government of the Police Department."
At the administrative hearing before the ALJ, the parties stipulated that appellant "used the training office computer to access inappropriate pornographic websites" on three occasions. Accordingly, the only issue in dispute was the appropriate penalty for those violations.
In reaching its decision, the Commission noted that appellant had "a significant major disciplinary history" including two prior suspensions:
In February 2006, the appellant was suspended for 90 days for attempting to shoplift 12 DVDs and in October 2006, he was suspending for 15 days for working as a security guard in a supermarket while serving the 90-day suspension. Indeed, it must be emphasized that the appellant, a supervisory level law enforcement officer, clandestinely utilized public safety equipment to access inappropriate pornographic websites.... Stated plainly, the appellant was entrusted with access to a secured area and his inappropriate utilization of the computer... represents a serious breach of that trust.
Appellant's personnel record further discloses that on September 24, 2004, he received a written reprimand for failing to properly supervise a cellblock during his tour of duty. The reprimand advised appellant he had violated three Department rules pertaining to "neglect of duty," "rendering appropriate action," and "general supervisory responsibility... which calls for supervisors to enforce department rules."
On appeal to this court, appellant argues the "Commission's decision to increase [his] suspension for 60 days to six months was arbitrary, capricious and unreasonable" because no specific reasons were provided to support it. In addition, appellant claims the six-month suspension violates principles of progressive discipline and ignores the findings of the ALJ, the hearing officer, and the Paterson Police Department. After considering these arguments in light of the record, the briefs, and the applicable law, we conclude they are without sufficient merit to warrant extended discussion in a written decision. R. 2:11-3(e)(1)(D) and (E). We therefore affirm with only the following comments.
Our role in reviewing the decisions of administrative agencies is limited. Generally, "an appellate court will reverse the decision of the administrative agency only if it is arbitrary, capricious or unreasonable or it is not supported by substantial credible evidence in the record as a whole." Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). "That deferential standard applies to the review of disciplinary sanctions as well." In re Herrmann, 192 N.J. 19, 28 (2007) (citing Knoble v. Waterfront Comm'n of N.Y. Harbor, 67 N.J. 427, 431 (1975)).
The test for reviewing an administrative sanction is "whether such punishment is 'so disproportionate to the offense, in the light of all the circumstances, as to be shocking to one's sense of fairness.'" In re Polk License Revocation, 90 N.J. 550, 578 (1982) (quoting Pell v. Bd. of Educ., 313 N.E.2d 321, 327 (1974)). "[C]courts should take care not to substitute their own views of whether a particular penalty is correct for those of the body charged with making that decision." In re Carter, 191 N.J. 474, 486 (2007) (citing In re License Issued to Zahl, 186 N.J. 341, 353-54 (2006)). Moreover, although "a tribunal may not consider an employee's past record to prove a present charge, that past record may be considered when determining the appropriate penalty for the current offense." In re Phillips, 117 N.J. 567, 581 (1990) (citations omitted).
In the present matter, the evidence established that appellant committed his fourth disciplinary infraction when he misused a Department computer for the purpose of viewing pornographic material. The Commission properly found that it was appropriate to consider appellant's previous violations because "collectively they show a disregard for the rules and regulations that all police officers have agreed to, and must abide by." On that basis, the Commission determined that appellant's most recent violations warranted a six-month suspension from his employment without pay. Based on our independent review of the entire record, we have determined that the penalty imposed is reasonably ...