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In the Matter of


August 3, 2012


On appeal from the Civil Service Commission, Docket No. 2009-2717.

Per curiam.


Submitted: May 2, 2012 -

Before Judges Axelrad and Ostrer.

Vanessa Warren, a seventeen-year employee of the Department of Corrections (DOC) with a virtually unblemished record, appeals from a final determination of the Civil Service Commission (Commission) upholding the appointing authority's penalty of her removal as a senior correction officer. We remand to the Commission for reconsideration of the penalty.

Appellant was served with a Final Notice of Disciplinary Action dated January 29, 2009, advising that the following charges had been sustained against her: "[c]onduct unbecoming a public employee"; "[v]violation of administrative procedure and/or regulations involving safety and security"; and "[v]violation of a rule, regulation, policy, procedure or administrative decision," with a penalty of removal. She filed an appeal, and the matter was transmitted to the Office of Administrative Law on February 23, 2009, for a contested hearing. Hearings were held before the Administrative Law Judge (ALJ) in July and September 2009. ALJ Walter M. Braswell rendered his initial decision on November 18, 2009. He dismissed the DOC's charge of conduct unbecoming a public employee and upheld the remaining charges. The ALJ determined that the proper penalty was a six-month suspension rather than removal.

The Commission issued a final administrative action on January 15, 2010, which accepted and adopted the ALJ's findings of fact, but did not adopt the ALJ's recommendation to modify the removal to a six-month suspension. Rather, the Commission upheld the removal. Appellant filed a request for reconsideration, arguing the Commission had committed a "clear material error" in its analysis of progressive discipline. By final administrative action issued on May 27, 2010, the Commission denied appellant's request for reconsideration.

This appeal ensued. Appellant does not challenge the Commission's findings with respect to the charges, just the sanction of removal. Specifically, appellant argues: (l) the final agency action that disagrees with the ALJ as to the penalty is not entitled to deference as it was not supported by sufficient, credible, competent evidence in the record; (2) the Commission's conclusion that appellant had "adequate notice" of her prior misconduct sufficient to require consideration of her forty-five day suspension is not supported by the record and constitutes material error; and (3) the Commission's conclusion that appellant's error caused a very serious security risk is not supported by the record and therefore constitutes material error. We agree.

We briefly recite the ALJ's findings of fact that the Commission adopted and the appellant does not dispute. During appellant's seventeen years as a correction officer for the DOC, her regular assignment was as a housing unit officer. On November 7, 2008, she was assigned as a traffic control officer at Northern State Prison, which was approximately the fifth time in her career that she had been assigned this post. Her responsibilities at the post were to monitor and control all approved inmate movements as listed on the daily pass list and to monitor and distribute facility passes for approved inmate movements. Appellant apparently misread the list of inmates scheduled for movement for appointments and called inmate C.A. down to the traffic control area where inmates get passes for offices such as medical and clothing. When C.A. arrived, appellant discovered he was not on the list after all.

The ALJ and Commission found appellant "mistakenly" called C.A. to the traffic control area when he did not have any scheduled appointment rather than the DOC's contention that she intentionally called C.A. to her post for improper reasons. The ALJ found this was a type of mistake that quickly should have been remedied by sending C.A. back to his housing unit; however, appellant compounded her error by allowing him to linger in a restricted area and issuing him a pass to the clothing office without first obtaining authorization. ALJ Braswell noted that although there was a discrepancy in the testimony regarding whether appellant was trying to obtain the authorization or whether Sergeant Henry Bussey told her he would take care of escorting the inmate to the clothing department, appellant's mistake was that she never should have given C.A. the pass.

Notwithstanding this error, which "presented a risk to the safety and security of the institution," the ALJ found as mitigating factors that appellant was not experienced in this position, the procedure required her to flip through a lengthy list, and the daily pass list contained the name of an inmate with the same surname as C.A. Therefore, the ALJ recommended dismissing the charge of conduct unbecoming a public employee and upholding the remaining charges.

The ALJ "weighed appellant's past disciplinary record under the concept of progressive discipline and the nature of the charges brought against her." He found "[t]ermination is not the appropriate penalty in light of the appellant's unblemished tenure as a correction officer at Northern State Prison."

The following testimony and evidence were presented with respect to a separate incident on October 25, 2008, involving appellant. Appellant testified she was first served with the Preliminary Notice of Disciplinary Action (PNDA) on December 9, 2008, four days before she was served with the PNDA in the present matter. The PNDA in the prior matter, stipulated to by the parties, confirms this date, further stating that appellant was charged with: "[c]onduct unbecoming an employee"; "[o]ther sufficient cause"; "[l]eaving assigned work area without permission [and] creating a danger to persons or property"; "[n]eglect of duty, loafing, idleness or failure to devote attention to tasks which could result in danger to persons or property"; and "[v]violation of a rule, regulation, policy, procedure or administrative decision." The specifications were that appellant abandoned her post without being relieved or receiving authorization and failed to keep the unit locked down, resulting in two inmates being involved in an altercation, and appellant violating procedures by entering a unit and opening cell doors. The proposed discipline was a forty-five day suspension.*fn1

The ALJ made the following findings with respect to the October 2008 incident, ultimately concluding it should not be considered as a factor in appellant's progressive disciplinary history:

[A]lthough the charges brought against her resulted in [the ALJ] issuing an Initial Decision in which he imposed a forty-five-day suspension, the appellant did not have sufficient time between that incident and the herein incident to correct her conduct. . . . The appellant was served with notice of the charges stemming from the [first] incident only four days prior to receiving notice of charges in this matter. During this period, for whatever reason, appellant was having a difficult time in an otherwise unblemished professional career. I find that it would be unfair to use the discipline stemming from the October 25, 2008, incident as an aggravating factor in this case. [(Emphasis added).]

The ALJ ordered that appellant be suspended for a period of six months effective January 29, 2009, the date of her removal and the DOC pay back-pay subject to setoffs and emoluments pursuant to the regulations from the removal date, "based on the appellant's seventeen years of service as a correction officer with only one other major disciplinary violation." ALJ Braswell explained the basis for disagreeing with the penalty imposed by the issuing authority as follows:

I FIND that appellant's aforementioned actions did constitute a breach of security (although not a serious breach) and therefore disciplinary action is warranted.

However, based on the foregoing findings of fact and legal analysis [including W. New York v. Bock, 38 N.J. 500, 523-24 (1962) (discussing progressive discipline and degree of discipline including the employee's prior disciplinary record and the gravity of the instant misconduct)], I CONCLUDE that respondent failed to meet its burden of proof that appellant's carelessness resulted in any danger to person or property. Therefore removing appellant from her position as a senior correction officer is inappropriate.

The Commission, however, in its de novo review of the penalty, Bock, supra, 38 N.J. at 519, found the October 25, 2008 "major disciplinary action should be considered as part of the appellant's disciplinary history for purposes of progressive discipline." The Commission reasoned that appellant was transferred from her post on the same date of the offense and "was interviewed as part of the investigation" into the incident on November 3, 2008. The Commission found it was "clear that the prior misconduct occurred before the November 7, 2008 [incident], and the appellant had adequate notice that the prior misconduct was unacceptable prior to the date of the subject incident." It concluded that "[i]n the instant matter, the appellant had adequate opportunity to conform her conduct to established standards prior to the subject incident." The Commission further noted that "appellant's prior 45-day suspension was imposed for misconduct that similarly created a serious threat to the safety and security of the institution."

In determining the severity of the penalty, the Commission also noted the importance of "maintaining security, discipline and order in a correctional facility," and the "troublesome" nature of an inmate unnecessarily moving out of his housing unit and "mov[ing] freely around the facility without proper authorization." The Commission concluded:

Notwithstanding the appellant's long employment history, the egregiousness of her conduct on November 7, 2008, along with a 45-day suspension for similar misconduct just days prior to this incident, demonstrate that removal is the appropriate remedy. Accordingly, the Commission concludes that the penalty imposed by the appointing authority is neither unduly harsh nor disproportionate to the offense and should be upheld.

In its May 27, 2010 decision, the Commission denied reconsideration, finding no "clear material error." It rejected appellant's arguments that her November 3, 2008 interview did not provide her with adequate notice of impending discipline respecting the October incident, "since she believed she was being interviewed as part of an investigation of co-workers" and the Commission's findings were contrary to In the Matter of Bruce Miller (Merit System Board, September 26, 2000), which it relied on in its final decision. The Commission emphasized that appellant was promptly transferred from her post, acknowledged she knew she was being "blamed" for that incident, and "was read her 'Weingarten' rights prior to the interview, which signaled to the appellant that she would be disciplined as a result of information uncovered during the interview." The Commission also declined to find that appellant's behavior did not create a serious security risk.

Appellant argues against the severity of the sanction. An appellate court has "no power to act independently as an administrative tribunal or to substitute its judgment for that of the agency," In re Herrmann, 192 N.J. 19, 28 (2007) (internal quotation marks and citation omitted), and is cautioned against substituting its own views on the penalty imposed for that of the administrative body, In re Carter, 191 N.J. 474, 486 (2007).

Rather, we owe substantial deference to the agency's "choice of remedy or sanction, seeing it as a matter of broad discretion, especially where considerations of public policy are implicated." Herrmann, supra, 192 N.J. at 35 (internal quotation marks and citations omitted).

In our review of a sanction imposed by an administrative agency, we alter the sanction imposed "only 'when necessary to bring the agency's action into conformity with its delegated authority.'" Id. at 28 (quoting In re Polk License Revocation, 90 N.J. 550, 578 (1982)).

In light of the deference owed to such determinations, . . . 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. . . . 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. [Herrmann, supra, 192 N.J. at 28-29 (second ellipsis in original) (internal quotation marks and citations omitted).]

See also City of Newark v. Massey, 93 N.J. Super. 317, 324-25 (App. Div. l967) (holding that in the context of disciplinary actions, we will not disturb the penalty imposed unless it is "so utterly disproportionate to the offense as to amount to a clear abuse of discretion." (internal quotation marks and citation omitted)).

Principles of progressive discipline have been applied where the offending party has a "substantial record of employment that is largely or totally unblemished by significant disciplinary infractions." Herrmann, supra, l92 N.J. at 32-33. However, progressive discipline is never immutable and can be patently inappropriate depending upon the nature of the violation. See id. at 33-36.

We clearly defer to the expertise of the agency, particularly respecting the necessity of maintaining the security of a prison. Appellant does not challenge the ALJ's findings that she made a mistake or oversight respecting calling C.A. from his housing unit to the traffic control area and compounded her mistake with an error in judgment by issuing him a pass to the clothing office without obtaining authorization.

We do not make light of appellant's mistakes. Corrections officers are understandably held to a higher standard than other public employees. We are also fully cognizant of the potential security ramifications of these types of mistakes. Based on our review of the record, however, we are convinced the penalty of removal is "disproportionate to the offense, in light of all the circumstances, as to be shocking to one's sense of fairness." Id. at 28-29 (internal quotation marks and citation omitted). Accordingly, we are constrained to remand this matter to the Commission for further review and consideration of an appropriate penalty based on all the facts and circumstances.

The ALJ had ample basis in the record to conclude that appellant's actions did not create a "serious" breach of security. In part, C.A. was apparently a trusted inmate who worked as a boot-black for officers and was on the verge of being classified as minimum security. Based on appellant's unblemished seventeen-year career as a correction officer, even if the October incident were taken into consideration, the penalty of removal is disproportionate to the offense. See Carter, supra, 191 N.J. at 484 (reiterating that an employee's past record may be resorted to for guidance in determining an appropriate penalty for a current offense (citing Bock, supra, 38 N.J. at 522-23)).

We are not persuaded the Commission should have considered the October incident as part of appellant's progressive discipline history. It is undisputed that the November 3 interview preceded both a formal charge and a formal finding of misconduct, and that appellant did not receive the PNDA respecting the October incident until more than a month after the subject incident. As ALJ Braswell heard no testimony respecting what was discussed during the November 3, 2008 interview, the Commission erred in presuming that appellant was aware at that time that formal charges would be filed against her for the October incident. Appellant may have had an indication that she would be accused of misconduct, but no evidence was presented that prior to the subject incident on November 7, appellant understood the nature of the charges and the severity of the penalty.

This case is similar to Miller, relied on by the Commission, where it affirmed the ALJ's conclusion that the prior discipline should not be considered because the PNDA had not been served prior to the second incident, i.e., "measured discipline (and/or notice of such discipline) had not yet been imposed for the prior misconduct." Appellant was notified virtually simultaneously of her forty-five day suspension and her termination a month after the subject incident occurred. Appellant clearly did not have a realistic opportunity to be educated by her mistakes and the ramifications of the October incident in order to correct her behavior. As noted by the ALJ, appellant's conduct during the two-week period encompassing these two incidents was an aberration in her otherwise unblemished career.

Reversed and remanded. We do not retain jurisdiction.

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