In re Jackson
| Decision Date | 25 January 2021 |
| Docket Number | DOCKET NO. A-5566-18T2 |
| Parties | IN THE MATTER OF MAURICE JACKSON, MERCER COUNTY CORRECTIONS CENTER. |
| Court | New Jersey Superior Court — Appellate Division |
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.
Before Judges Whipple and Firko.
On appeal from the New Jersey Civil Service Commission, Docket No. 2018-2491.
Alterman & Associates, LLC, attorneys for petitioner (Stuart J. Alterman and Timothy J. Prol, on the briefs).
Paul R. Adezio, Mercer County Counsel, attorney for respondent Mercer County Corrections Center (Lynn Suzette Price, Assistant County Counsel, on the brief).
Gurbir S. Grewal, Attorney General, attorney for respondent New Jersey Civil Service Commission (Jonathan S. Sussman, Deputy Attorney General, on the statement in lieu of brief).
Petitioner Maurice Jackson appeals from a June 26, 2019 final administration action of the Civil Service Commission (Commission) upholding his fifty-day suspension. We affirm.
We discern the following from the hearing record. Petitioner worked for the Mercer County Corrections Center (MCCC) as a corrections officer. On October 24, 2017, petitioner was assigned to control room two (CR2), which serves as a communications link and controls traffic to and from the units. CR2 is the base of operations for the issuance of equipment, keys, and paperwork. Petitioner was responsible for monitoring activities within the jail during the overnight shift and ensuring "everything was running normally." Part of his responsibilities included reviewing monitors and operating the control panel that opens the cell doors to two pods within MCCC, A pod and B pod.
On that date, another corrections officer, Sergeant Kenneth Fitzpatrick, was "doing rounds" through A pod, B pod, medical, and APC units to ensure the safety and security of all officers and inmates. During these rounds, Sergeant Fitzpatrick approached door A35, which leads to MCCC's maximum security unit and is controlled by the panel in CR2. Sergeant Fitzpatrick requested over the radio that the door be opened by petitioner, but the request went unanswered. A second call was made to CR2 to alert petitioner that Sergeant Fitzpatrick was at the door.
After multiple radio calls went unanswered, Captain Michael Kownacki, the shift commander for the 11:00 p.m. to 7:00 a.m. shift, adjusted the monitor in the master control room to ascertain why the door was not being opened. Captain Kownacki then observed petitioner "seated in the chair with his back facing the camera." Petitioner was eventually aroused by a phone call or a radio transmission from another officer and reached for the control panel to open the door. Because petitioner did not respond to the radio calls to open the door, he was relieved from his post for the remainder of his shift, and an incident report was prepared. Petitioner claimed he did not hear the transmission because his radio was not on an appropriate listening level because he had used the speaker phone and forgot to reset the volume.
On November 14, 2017, the MCCC issued a Preliminary Notice of Disciplinary Action (PNDA) to petitioner setting forth charges arising from his failure to respond to the radio calls to open door A35. The PNDA charged petitioner with conduct unbecoming a public employee, 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(a)(12), for sleeping while on duty, in violation of the Mercer County Public Safety Table of Offenses and Penalties.
On January 25, 2018, the MCCC held a departmental disciplinary hearing sustaining the charges. On February 16, 2018, the MCCC issued a Final Notice of Disciplinary Action (FNDA) sustaining all charges listed in the PNDA and proposed a fifty-day working suspension penalty. Petitioner appealed the determination to the Commission, which transmitted the appeal to the Office of Administrative Law (OAL) to be heard as a contested case pursuant to N.J.S.A. 40A:14-202(d).
The OAL heard the matter on February 13, 2019. The MCCC presented the testimony of Captain Kownacki, the shift commander on the day in question, Sergeant Fitzpatrick, who placed the calls to open door A35, and Phyllis Oliver, the retired Deputy Warden of MCCC. Oliver testified she reviewed the video of the incident, and it appeared petitioner was asleep during his shift. Petitioner testified on his own behalf. The AOL allowed the parties to file post-hearing submissions until May 15, 2019.
After reviewing the evidence, the Administrative Law Judge (ALJ) issued a twenty-three-page initial decision sustaining all charges against petitioner. The ALJ found petitioner's testimony was inconsistent, incredulous, and self-serving stating:
This account of events . . . runs contrary to [petitioner's] testimony that, when working the "A Shift" or overnight shift, noise can travel from the control room and into the living units of MCCC. [Petitioner] explained that he turns the volume on his radio down so the sound . . . does not carry into the pods where it can awaken the inmates who should be asleep during this time. . . . In light of this practical motivation to minimize unnecessary noise when working in the control room during an overnight shift, it would further seem to reason, however, that if the [petitioner] needed to make or receive phone calls during that shift, he would avoid using the speaker phone since that would presumably generate the same type of conversational noise he was trying to avoid by keeping his radio at a low level.
After reviewing the surveillance video, the ALJ determined:
[Petitioner] was asleep in his chair on duty at MCCC on October 24, 2017, from approximately 3:15 a.m. until approximately 3:26 a.m. During this period, the [petitioner] can be observed in the surveillance video . . . sitting in his chair, not moving with his head noticeably tilting towards, and possibly resting on, his left shoulder. The [petitioner] does not change his position during this time to give himself a field of view of the monitor that is positioned behind his left shoulder and, despite the [petitioner's] testimony that he could see the monitor from where he was seated, the monitor and its contents were outside his field of vision from where he was seated as his head can be observed to be facing away from the monitor during this time.
The ALJ concluded that the MCCC had proven that the charges were supported by the evidence. Petitioner appealed the matter to the Commission. On July 31, 2019, the Commission, after conducting its review and making an independent evaluation, affirmed the charges and dismissed petitioner's appeal. This appeal followed.
Petitioner has raised three points but essentially argues that the Commission's decision was "arbitrary, capricious and unreasonable" because it was based on the ALJ's factual findings and credibility determinations, which were not supported by substantial credible evidence and upheld a penalty that was "unwarranted," "excessive," and "contrary to the principles of progressive discipline." In addition, petitioner asserts the Commission erred as a matter of law by finding the MCCC satisfied its burden of proof because the evidence was in "equipoise." We reject these arguments.
Our review of agency action is limited. "An appellate court ordinarily will reverse the decision of an administrative agency only when the agency's decision is 'arbitrary, capricious or unreasonable or is not supported by substantial credible evidence in the record as a whole.'" Ramirez v. N.J. Dept. of Corr., 382 N.J. Super. 18, 23 (App. Div. 2005) (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980)). "[A]n administrative agency's interpretation of statutes and regulations within its implementing and enforcing responsibility is ordinarily entitled to our deference." Wnuck v. N.J. Div. of Motor Vehicles, 337 N.J. Super. 52, 56 (App. Div. 2001) (quoting In re Appeal by Progressive Cas. Ins. Co., 307 N.J. Super. 93, 102 (App. Div. 1997)).
Therefore, "if substantial credible evidence supports an agency's conclusion, a court may not substitute its own judgment for the agency's even though the court might have reached a different result." Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992) (citing Clowes v. Terminix Int'l, 109 N.J. 575, 587 (1998); Henry, 81 N.J. at 579-80). Additionally, a presumption of reasonableness attaches to the actions of administrative agencies. City of Newark v. Nat. Res. Council in Dep't of Env'tl Prot., 82 N.J. 530, 539-40 (1980). We defer to the expertise of agencies where substantial evidence supports the agency's determination. In re Stallworth, 208 N.J. 182, 194 (2011). Accordingly, the findings of the agency should not be reversed because they are based on "sufficient, competent, and credible evidence." N.J.S.A. 52:14B-10(c).
Moreover, we "defer to [the ALJ's] credibility findings that are often influenced by matters such as observations of the character and demeanor of witnesses and common human experience that are not transmitted by the record," State v. Locurto, 157 N.J. 463, 474 (1999) (citing State v. Jamerson, 153 N.J. 318, 341 (1998); Dolson v. Anastasia, 55 N.J. 2, 7 (1969); State v. Johnson, 42 N.J. 146, 161 (1964)), giving "due regard to the opportunity of the one who heard the witnesses to judge their credibility." Logan v. Bd. of Rev., 299 N.J. Super. 346, 348 (App. Div. 1997) (citing Jackson v. Concord Co., 54 N.J. 113, 117-18 (1969)).
Petitioner argues that the record does not support the charge of conduct unbecoming a public employee, and the MCCC did not meet its burden of proof as to N.J.A.C. 4A:2-2.3(a)(6). Rather, petitioner highlights that: (1) "[n]one of the witnesses...
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