NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-5904-17T1
IN THE MATTER OF ALLAN KENNEY JUVENILE JUSTICE COMMISSION. ________________________
Argued March 2, 2020 – Decided July 16, 2020
Before Judges Rothstadt and Mitterhoff.
On appeal from the New Jersey Civil Service Commission, Docket No. 2015-2797.
Charles J. Sciarra argued the cause for appellant Allan Kenney (Sciarra & Catrambone, LLC, attorneys; Charles J. Sciarra, of counsel and on the briefs; Frank C. Cioffi, on the briefs).
Suzanne Davies, Deputy Attorney General, argued the cause for respondent Juvenile Justice Commission (Gurbir S. Grewal, Attorney General, attorney; Jane C. Schuster, Assistant Attorney General, of counsel; Suzanne Davies, on the brief).
Gurbir S. Grewal, Attorney General, attorney for respondent New Jersey Civil Service Commission (Donna Arons, Assistant Attorney General, of counsel; George N. Cohen, Deputy Attorney General, on the statement in lieu of brief). PER CURIAM
Allan Kenney, a former corrections officer of the Juvenile Justice
Commission (JJC), appeals from the Civil Service Commission's (CSC) March
29, 2018 final agency decision. The decision adopted an Administrative Law
Judge's (ALJ) January 26, 2018 recommendation, sustaining Kenney's
termination from employment based upon his inappropriate physical contact
with a juvenile resident. He also appeals from the CSC's August 17, 2018
decision, denying his motion to reconsider the March 29, 2018 decision.
On appeal, Kenney argues that the CSC's determination was arbitrary,
capricious, unreasonable, and was not supported by substantial credible
evidence in the record. In the alternative, Kenney argues that his termination
should be overturned, and progressive discipline should be applied with back
pay and attorney's fees. We disagree and affirm substantially for the reasons
stated by the ALJ in her comprehensive written initial decision that was adopted
by the CSC and in the CSC's decision rejecting Kenney's motion for
reconsideration.
The facts developed at the hearing before the ALJ are summarized as
follows. Prior to his termination, Kenney had been employed by the JJC since
2007 as a corrections officer. At the time of the incident, Kenney was a senior
A-5904-17T1 2 corrections officer. Prior to the present matter, disciplinary charges were
brought against him on only one occasion. In 2013, Kenney pled guilty to
charges, including "incompetency, inefficiency or failure to perform duties";
"conduct unbecoming a public employee"; "neglect of duty"; and "other
sufficient cause," which contained various human resource violations, one of
which was falsification of his narrative report. The charges related to Kenney
prohibiting a resident from changing out of his wet clothing and requiring the
resident to stand in the hallway for two hours. Kenney was suspended for ninety
days following the incident.
The subject incident occurred on January 12, 2014, when Kenney and
Officer Andres Collazo were required to supervise the residents in a specific
housing unit of the New Jersey Training School (Training School). The Training
School housed approximately thirty juvenile residents who had been adjudicated
for committed various crimes, including murder, sexual assault, and burglary.
Residents lived in a dormitory setting and included in the housing unit was a
recreational center known as the day room.
On that day, a resident was in the day room when he intentionally banged
his head against the bathroom door. Officer Collazo witnessed the act, and after
he informed Kenney, they spoke to the resident in the hallway. Kenney also
A-5904-17T1 3 notified his supervisor, Sergeant Terry Fisher, as the resident seemed to be
injured from hitting his head.
When the conversation with the resident began, Kenney was stationed
behind a podium, however, as the conversation developed, Kenney moved in
front of the podium to get closer to the resident. At one point, the resident raised
his hands and took a few steps forward. After the resident moved back towards
the wall, Kenney reached towards the resident and pushed him against the wall.
A physical altercation then ensued, which resulted in the two falling to the
ground. Kenney called an emergency code over his radio. The resident got up
and headed towards the wall when he was taken down "to the ground a second
time." Once Kenney subdued the resident, Sergeant Fisher responded to the call.
After the resident was subdued, Kenney got up and the resident remained on the
ground.
Later that same day, Kenney authored a narrative report of the incident.
In the report, Kenney stated that after the resident was taken to the hallway, the
resident became angry, cursed at him and Officer Collazo, he "balled his fists
up," and was breathing heavily. According to Kenney, after he failed to calm
down the resident, the resident "took steps toward[s]" him and Kenney ordered
him to "step back and unclench his fists." At that point, the resident cursed at
A-5904-17T1 4 Kenney and "lunged at" him. Kenney further stated that he attempted to restrain
the resident, but the resident pushed Kenney to the ground and at some point, he
struck Kenney in the face and head. This caused Kenney to use "a hand strike
that connected with [the resident's] head," which allowed him and Officer
Collazo to get the resident to the ground. According to Kenney, the resident
continued to resist, leading Kenney to strike the resident's "torso and upper body
with knees and hand strikes." He stated, that once the resident was subdued, the
resident was placed in mechanical restraints.
Following the report, Kenney charged the resident with an assault on staff.
The resident also authored a statement, indicating that Kenney "grabbed him for
no reason and punched him on the back of the head during the same incident."
The resident was later found guilty of committing the offense and was
sanctioned to segregation for five days.
After the incident, a lieutenant of the Training School reported the
incident and allegations to the Office of Investigations, which led Eric Cloud, a
senior investigator for the JJC, to conduct an investigation. He investigated
whether the following allegations against Kenney were substantiated: The
initiation of "inappropriate physical contact against" the resident; the use of
excessive force against the resident with "hand and knee strikes"; and
A-5904-17T1 5 falsification of his report by stating that the resident "lunged" at Kenney. Cloud
was also asked to investigate an allegation that Officer Collazo fabricated his
report, whether the resident initiated the physical altercation against Kenney,
and whether the resident assaulted Kenney. In authoring an investigative report,
Cloud relied on the surveillance videos; photographs he took of Kenney and the
resident; interviews of Kenney, Officer Collazo, Sergeant Fisher, and residents
that were at the unit at the time of the incident; narrative reports; the resident's
juvenile statement; and Kenney's prior disciplinary violation. The resident
refused to be interviewed as he invoked his Miranda rights.1
In the report, Cloud summarized the interviews he conducted, the videos
he reviewed,2 relevant documents, and the injuries sustained. Cloud stated that
Kenney's description of the incident was inconsistent with the hallway
surveillance video. He stated that Kenney's allegation that the resident took two
to three steps towards him and then "lunged" at him was not corroborated by the
1 Miranda v. Arizona, 384 U.S. 436 (1966). 2 In his report, Cloud noted that he only reviewed the hallway surveillance video. However, during the hearing, Cloud indicated that he also reviewed the day room surveillance video and that forgetting to include that video in his report was an oversight. Cloud stated that the day room surveillance video was considered until the resident was taken into the hallway, where the physical altercation occurred. A-5904-17T1 6 video. After Sergeant Fisher was called, the situation was contained, and the
matter only escalated when Kenney initiated physical force against the resident.
With these findings, Cloud concluded that all the allegations against Kenney
were substantiated, as was the one allegation against Officer Collazo, the
allegation that the resident initiated the physical violence was unfounded, and
the allegation that the resident assaulted Kenney was inconclusive.
Thereafter, on March 20, 2014, the JJC served a preliminary notice of
disciplinary action on Kenney, charging him with a violation of N.J.A.C. 4A:2-
2.3(a)(6), conduct unbecoming a public employee; and N.J.A.C. 4A:2-
2.3(a)(12), other sufficient cause, which was defined as a violation of JJC's
human resource policies, identified as H19.7 C-6 inappropriate physical contact,
C-9 falsification, C-12 conduct unbecoming a public employee, and N.J.A.C.
13:95-3.2's use of force policy. After the ensuing departmental hearing, a final
notice of disciplinary action was served on Kenney on April 20, 2015, and
Kenney was removed from his position that same day.
Kenney filed an appeal, and the matter was assigned to the ALJ for a
hearing that was held on July 9, 2015. At the hearing, Cloud and Captain Edwin
Gonzalez testified on behalf of the JJC. Kenney testified on his own behalf.
A-5904-17T1 7 Cloud testified that he was responsible for investigating matters involving
staff or officers on issues relating to violence, sexual assaults, and administrative
cases. His investigation of the incident revealed that the resident banged his
head on a door, Officer Collazo and Kenney spoke to the resident in the hallway,
Kenney came "from behind [the officer’s podium, went] in front of the officer's
station . . . and . . . grab[bed the resident,] and they [then] start[ed] to struggle."
Cloud testified that Kenney altered his account of what occurred during the
interview. Specifically, while Kenney's report stated that the resident "lunged"
at him, during the interview, Kenney stated that the resident's action equated
more to a "flinch" than a "lunge." Cloud further testified that Kenney's account
of the incident differed from the video, which was played during his testimony.
He concluded that based on his investigation, the charges against Kenney were
all substantiated.
Further, on cross-examination, Cloud stated that the resident did take a
few steps forward, which was contrary to what was stated in his report, however,
those forward steps did not take place when Kenney was reaching towards the
resident. Cloud stated that the mistake in his report was merely an oversight.
He reiterated that the resident never "lunged" towards Kenney. Additionally,
A-5904-17T1 8 based on his interviews, he admitted that the resident was verbally belligerent
towards Kenney, but the resident never used physical force against Kenney.
Captain Gonzalez testified about his employment history, and further
testified that he was responsible for teaching the JJC employees about crisis
management, use of force, and instructions on firearms. He stated that the JJC
had established policies relating to the use of force on the job, and classes were
provided to its employees on how to write incident reports. Captain Gonzalez
testified that a JJC corrections officer was authorized to use physical force on a
daily basis, however, it would be a violation for a JJC officer to use physical
force "in response to a resident using . . . insulting . . . or abusive language
towards [a] officer," and the force should only be used as a last resort. He further
testified about the JJC's human resource polices and punishments associated
with different violations.
In addition to the facts stated in his narrative report, Kenney testified
about the layout of the housing unit, his responsibilities, prior training and
disciplinary charge, injuries he sustained in the past, and the use of force he
previously used. The surveillance videos were also played during Kenney's
testimony.
A-5904-17T1 9 Kenney testified that after the resident was taken into the hallway and
questioned about why he banged his head against the door, Kenney informed the
resident that he had to report his actions, speak to a supervisor, and the resident
would need to see medical personnel. According to Kenney, this made the
resident "angry and belligerent." Only after the resident became "more agitated
and he was balling his fists up," did Kenney come from behind the podium,
attempt to calm the resident down, and take a defensive position. Kenney
testified that after he was unsuccessful in calming the resident down and the
resident stepped towards him, he used physical force as he had "exhausted all
other means of constructive authority and . . . verbal commands."
According to Kenney, when he engaged the resident, the resident had
already caused the incident to get "beyond the point of verbal" and the resident
was an "immediate threat" to his safety. He testified that after the resident
pushed him down to the ground, he and Officer Collazo attempted to restrain the
resident using "[h]and strikes, knee strikes and grappling and wrestling," which
Kenney believed he had the authority to use. Once he was restrained and
Sergeant Fisher arrived, he no longer touched the resident.
In his testimony about his report, Kenney stated that he used the word
"[l]unge" to describe the resident's "sudden movement toward [him] when he
A-5904-17T1 10 raised his hand [and] moved his upper body towards [him] in an aggressive
manner." He further stated that after he described the incident to his supervisors
and colleagues, they agreed that using the word "[l]unge" to explain the
resident's action was appropriate. Kenney denied attempting to mislead anyone
with his report.
After considering the testimony and other evidence, the ALJ submitted a
comprehensive written decision sustaining Kenney's termination from the JJC
on January 26, 2018. In the decision, the ALJ found that Kenney lacked
credibility, as his story did "not hang together" and "it is more likely than not
that [Kenney] consulting colleagues and filing of charges [against the resident]
was an intentional attempt to justify . . . action that he knew was excessive."
The ALJ noted that "[w]hile [the resident] did raise his hand at one point, he did
not appear to be behaving in a threatening, menacing or aggressive manner
toward [Kenney], and appeared to be backing away from [Kenney], consistent
with . . . [Kenney's] verbal instructions . . . ."
She also found that the use of the word "lunge" in Kenney's report was an
inaccurate description of what occurred. Specifically, the ALJ stated that "the
common usage of the word lunge, coupled with an objective viewing of the
[hallway surveillance] video," made her "tend[] toward a finding that the event
A-5904-17T1 11 had not been accurately described" to Kenney's supervisors and colleagues.
Instead, if the incident had been properly explained, she stated that "at least one
[person] would have noted that lunge was not the correct word" to use in
Kenney's report.
In terms of the charge for unbecoming a public employee and the violation
of the JJC's human resource policy C-12, the ALJ found that the charges should
be sustained as Kenney initiated and "utilized physical force in his encounter"
that did not "commensurate" with the actions of the resident. She further found
that there was a violation of the human resource policy C-6 that prohibited
"inappropriate physical contact or mistreatment of a patient, client, resident,
employee or adult inmate," as Kenney initiated physical contact against the
resident without justification.
The ALJ also considered whether the employer met its burden to establish
that Kenney falsified his report under human resource policy C-9. The ALJ
concluded that Kenney's report was "not consistent with what actually
occurred," and, instead, his act of fabricating the report was in attempt to justify
his actions. Finally, the ALJ found that Kenney's charge under N.J.A.C. 13:95-
3.2 was substantiated as the resident "did not act aggressively or threateningly
toward" Kenney, and, instead was backing away from Kenny.
A-5904-17T1 12 Turning to progressive discipline, the judge sustained Kenney's removal
as the violations arising from this incident in combination with Kenney’s past
violation, demonstrated his "substantive disciplinary history." The ALJ noted
that the incident qualified as a second offense against Kenney for conduct
unbecoming and for falsification. The remaining charges were his first offense
of such a type. After considering the totality of the circumstances, the judge
determined that there was a "pattern that seem[ed] to be increasing in
seriousness and frequency," that Kenney was not "learning from his mistakes,"
and he was not honest. For those reasons, the ALJ recommended that Kenney's
removal be sustained.
On March 29, 2018, after conducting an independent evaluation of the
record, the CSC adopted the ALJ's findings of fact and conclusions and adopted
her recommendation to sustain Kenney's removal.
Kenney filed a motion for reconsideration that the CSC denied on August
17, 2018, after concluding Kenney did not meet the standard for reconsideration.
It found that Kenney failed to demonstrate there was a material error, that there
was any new evidence, and his arguments were not credible. The CSC further
found that "[t]he video of the incident confirm[ed] that [the resident] was
backing away and was not acting in a threatening manner at the time of the
A-5904-17T1 13 incident and there [was] no substantive information to show that [the resident]
lunged at Kenney." It concluded that the charges against Kenney were supported
by the record.
The CSC also denied reconsidering removal as the appropriate sanction.
It noted that Kenney was "responsible for a vulnerable population of juvenile
residents," and his act of pushing the resident and using hand and knee strikes,
could not "be tolerated." This appeal followed.
Our review of a final agency decision is limited. In re Stallworth, 208
N.J. 182, 194 (2011). "In order to reverse an agency's judgment, [we] must find
the agency's decision to be 'arbitrary, capricious or unreasonable, or [ ] not
supported by substantial credible evidence in the record as a whole.'" Ibid.
(second alteration in original) (quoting Henry v. Rahway State Prison, 81 N.J.
571, 580 (1980)). The burden of proving the agency's action is arbitrary,
capricious, and unreasonable is on the challenger. Bueno v. Bd. of Trs., 422
N.J. Super. 227, 234 (App. Div. 2011).
In making our determination we consider the following factors:
(1) [W]hether the agency's action violates express or implied legislative policies, that is, did the agency follow the law; (2) whether the record contains substantial evidence to support the findings on which the agency based its action; and (3) whether in applying the legislative policies to the facts, the agency clearly
A-5904-17T1 14 erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors.
[In re Carter, 191 N.J. 474, 482-83 (2007) (quoting Mazza v. Bd. of Trs., 143 N.J. 22, 25 (1995)).]
See also Bueno, 422 N.J. Super. at 233-34.
We "may not substitute [our] own judgment for the agency's even though
[we] might have reached a different result." Carter, 191 N.J. at 483 (quoting
Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992)).
"Nevertheless, 'we are not bound by the agency's legal opinions.'" A.B. v. Div.
of Med. Assistance & Health Servs., 407 N.J. Super. 330, 340 (App. Div. 2009)
(quoting Levine v. State, Dep't of Transp., 338 N.J. Super. 28, 32 (App. Div.
2001)).
On appeal, Kenney argues that the CSC's decision not to reconsider
Kenney's removal was a material error, and it improperly determined that the
use of physical force against the resident was inappropriate. Kenney asserts that
his use of force was justified as he was about to be assaulted, which was clear
through the resident taking a few steps towards Kenney and raising his hands.
He further argues that there was insufficient evidence to demonstrate he falsified
the incident report. Instead, Kenney contends Cloud's failure "to accurately
A-5904-17T1 15 detail the evidence" and Cloud's "hyper-technical" evaluation of his language
was improper and not credible.
After carefully reviewing the record and applying our deferential standard
of review, we affirm substantially for the reasons expressed by the ALJ in her
thorough initial decision, as adopted by the CSC, and the CSC's decision not to
reconsider that decision. We add only the following comments.
Where, as here, video tape evidence is involved, we will defer to an agency's
determination as the fact finder, and not substitute our judgment for that of the
agency, unless its "factual findings are so clearly mistaken—so wide of the mark—
that the interests of justice demand intervention." State v. S.S., 229 N.J. 360, 381
(2017). Here, the ALJ and the CSC considered all evidence, including surveillance
videos, and determined Kenney's version of what occurred was not credible.
Specifically, she found that Kenney initiated unjustified physical force against the
resident, used excessive force, and the resident never "lunged" towards Kenney. We
therefore find no basis to reject the CSC's acceptance of the ALJ's factual findings
and sustain Kenney's termination and the CSC's subsequent denial of Kenney's
motion for reconsideration.
Finally, we have no cause to disturb the discipline imposed. Our
"deferential standard applies to the review of disciplinary sanctions as well."
A-5904-17T1 16 Stallworth, 208 N.J. at 195 (quoting In re Herrmann, 192 N.J. 19, 28 (2007)).
In our review of "administrative sanctions, [we] . . . consider whether the
'punishment is so disproportionate to the offense, in the light of all of the
circumstances, as to be shocking to one's sense of fairness.'" Ibid. (quoting
Carter, 191 N.J. at 484).
Here, Kenney was responsible for the care of a vulnerable group of
juvenile residents. His violation of that serious responsibility warranted his
termination. Even if the incident on its own was insufficient, the incident
coupled with Kenney's first disciplinary violation, as the ALJ determined, was
more than sufficient to justify his termination. Id. at 196 (explaining that an
employee's prior disciplinary history can be "considered in fashioning the
'appropriate penalty for the current specific offense'" (quoting West New York
v. Bock, 38 N.J. 500, 523 (1962))).
"[P]rogressive discipline [may be] bypassed when an employee engages
in severe misconduct, especially when the employee's position involves public
safety and the misconduct causes risk of harm to persons or property." Id. at
196-97 (emphasis added) (quoting Herrmann, 192 N.J. at 33). That risk of harm
was clearly present here, and, combined with the vulnerable group of residents
Kenney was responsible for, supported his termination. See Herrmann, 192 N.J.
A-5904-17T1 17 at 38 (explaining that termination was appropriate, instead of progressive
discipline, because "in so short a time," the employer could no longer trust the
employee); Henry, 81 N.J. at 580 (reversing the CSC's decision to reduce
penalty from removal to suspension where an employee falsified a report).
Since we have no cause to disagree with the CSC's adoption of the ALJ's
recommendation sustaining removal, we need not consider Kenney's arguments
relating to reconsideration of the CSC's final agency decision.
Affirmed.
A-5904-17T1 18