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In re Restrepo

Superior Court of New Jersey, Appellate Division

March 27, 2017

IN THE MATTER OF JOHN RESTREPO, DEPARTMENT OF CORRECTIONS.

          Submitted December 13, 2016

         On appeal from the Civil Service Commission, CSC Docket No. 2014-2092.

          Sciarra & Catrambone, attorneys for appellant John Restrepo (Charles J. Sciarra, of counsel; Christopher A. Gray, on the briefs).

          Christopher S. Porrino, Attorney General, attorney for respondent New Jersey Department of Corrections (Melissa H. Raksa, Assistant Attorney General, of counsel; Christopher M. Kurek, Deputy Attorney General, on the briefs).

          Christopher S. Porrino, Attorney General, attorney for respondent New Jersey Civil Service Commission (Todd A. Wigder, Deputy Attorney General, on the statement in lieu of brief).

          Before Judges Fisher, Leone, and Vernoia.

          OPINION

          LEONE, J.A.D.

         Appellant John Restrepo appeals the February 4, 2015 decision of the Civil Service Commission (Commission) terminating his employment with the Department of Corrections (DOC). His appeal raises the issue of whether the timeliness of Commission decisions in disciplinary cases involving law enforcement officers and firefighters is governed by the recent legislation addressing such cases, L. 2009, c.16 (2009 Act), or by the Administrative Procedure Act (APA), N.J.S.A. 52:14B-1 to -15.

         We hold that the 2 009 Act governs. Under the 2009 Act, the Commission's decision was timely. Moreover, the decision was not arbitrary, capricious, or unreasonable. Accordingly, we affirm.

         I.

         We derive the following facts from the findings and evidence before the Administrative Law Judge (ALJ) and the Commission.

         Restrepo worked for the DOC for approximately six years. He was commended for "a job well done in dealing with the terrible impact of Hurricane Sandy" in Fall 2012 and for finding two shanks during a cell search in June 2012. Restrepo's record was free from disciplinary infractions.

         On December 22, 2013, Restrepo was a senior corrections officer (SCO) at Northern State Prison (Prison). He was assigned to the Prison's Housing Unit F-300, East Side (F3E). F3E consists of a housing wing comprised of two floors and forty prison cells, with two prisoners assigned to each cell. F3E also encompasses a "sally port, " a secure entryway into F3E which is monitored by the officer on duty in F3E. The Local Control Point (LCP) is located on the other side of the "sally port." In the LCP, on-duty corrections officers can monitor who enters the East Side and West Side wings and control the opening and closing of the cell doors in those wings. A restroom is located in the LCP, and this is where on-duty officers may use the bathroom. The LCP is separate from F3E and therefore not part of Restrepo's post in F3E.

         Two separate physical altercations between inmates broke out in F3E while Restrepo was on duty on December 22. Lieutenant Andre Fleming, Restrepo's supervisor, investigated the altercations and testified to the following.

         The first physical altercation occurred between 6:28 a.m. and 7:36 a.m., when several inmates gained access to another inmate's cell. Restrepo was not at his post in F3E when this altercation arose.

         The second altercation occurred around 12:18 p.m., when some of the inmates involved in the first altercation began fighting. Restrepo was at his post for this altercation and was able to break up and report the fight.

         When Lieutenant Fleming inquired into Restrepo's earlier absence, Restrepo submitted a statement that he was sick and using the restroom in the LCP. Restrepo also submitted a doctor's note dated December 21, 2013, saying he visited a doctor and was treated for a stomach virus on that date.

         Lieutenant Fleming reviewed a security video from F3E. The video showed Restrepo was at his post and performed his early morning inmate count. Restrepo left his post in F3E at 6:28 a.m. and returned at 7:36 a.m., according to the times tamp on the video. Thus, Restrepo was absent from his post for sixty-eight minutes. He did not call for relief during this period. Fleming testified that for an officer to properly obtain relief from his post, the officer should notify his supervisor to request the relief and the supervisor will send someone to temporarily relieve the officer from his post.

         Security Major Michael Chrone testified the Prison Custody Post Orders (Post Orders) and the DOC's Law Enforcement Personnel Rules & Regulations (DOC Rules) explicitly provide instructions for what an officer needs to do before leaving his post. The Post Orders provide: "Housing Unit officers are not to leave their assigned post unless properly relieved by another officer or permission is granted from the Shift Commander." The DOC Rules provide: "Except as predetermined by emergency response procedures, an ...


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