NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-2779-18
IN THE MATTER OF JOSEPH CONNORS, CAMDEN COUNTY, DEPARTMENT OF CORRECTIONS. _____________________________
Argued March 8, 2021 – Decided July 7, 2021
Before Judges Gooden Brown and DeAlmeida.
On appeal from the New Jersey Civil Service Commission, Docket No. 2016-912.
Jacqueline M. Vigilante argued the cause for appellant Joseph Connors (The Vigilante Law Firm, PC, attorneys; Jacqueline M. Vigilante and Kelly A. Hicks, on the briefs).
Howard L. Goldberg, First Assistant County Counsel, argued the cause for respondent Camden County Department of Corrections (Christopher A. Orlando, County Counsel, attorney; Howard L. Goldberg, on the brief).
Gurbir S. Grewal, Attorney General, attorney for respondent New Jersey Civil Service Commission (Craig S. Keiser, Deputy Attorney General, on the statement in lieu of brief). PER CURIAM
Appellant Joseph Connors appeals from the January 18, 2019 final agency
decision of the Civil Service Commission (Commission) upholding his thirty-
day suspension from his position as a corrections lieutenant with the Camden
County Department of Corrections (CCDOC). We affirm.
I.
The following facts are derived from the record. On November 9, 2014,
Connors was a lieutenant and acting shift commander at the Camden County
Correctional Facility. He was responsible for the operations of the facility.
Eight corrections officers were assigned to search cells with Sergeant James
Pierce as their supervisor. After the search, several inmates reported that their
personal photographs had been defaced, some with the handwritten word "Carr."
This appears to be a reference to Corrections Officer Alfred Carr, who was not
one of the officers who participated in the search of the cells.
Corrections Officer King received some of the inmate complaints. He
referred the complaints to Pierce, who interviewed the inmates and spoke with
the officers who had participated in the search. Pierce informed Connors of the
allegations. Pierce admitted that he failed to keep a log of which officers
A-2779-18 2 searched which cells, contrary to established procedures. He also failed to ask
the officers which cells they searched.
Together Connors and Pierce spoke again to the inmates and collected the
defaced photographs. Connors then interviewed the officers involved in the
search as a group. He informed them of the seriousness of the complaints and
asked them to come forward with information about who defaced the photos.
Connors and Pierce subsequently spoke to each of the officers individually.
Corrections Officer Jacob reported that he witnessed King write on the
photographs. Connors then spoke with King, who denied any involvement in
the incident.
Connors instructed Pierce to prepare an incident report, directing him to
make the report vague. After reviewing Pierce's report, Connors instructed him
to submit it, along with the collected photographs, to the Internal Affairs (IA)
mailbox.
Connors was unaware whether IA received the incident report or
conducted an investigation. Although he claimed that he asked Sergeant Jones,
an IA investigator, about the report in the days following the incident, Jones
testified that he did not remember having had that conversation with Connors.
No investigation was undertaken by IA.
A-2779-18 3 Carr learned of the incident on December 1, 2014, nearly a month after it
took place. Fearing for his safety, he immediately submitted a report to IA about
the incident. Jones testified that he did not receive Pierce's report until he
received Carr's report. He obtained the original photographs from the warden.
Jones interviewed the inmates, who reported that they had had no previous
problems with Carr and doubted he was involved in defacing their property. On
December 11, 2014, Jones interviewed Pierce and King. King denied any
involvement in the incident. He stated that shortly after the incident he
approached Connors to discuss a conversation he had with Corrections Officer
Bulzak, who he suspected was involved in defacing the photographs. According
to King, Connors refused to discuss Bulzak, telling him the matter was out of
his hands.1
On December 19, 2014, Jones interviewed Jacob. He stated that although
he saw King write on the photographs, he never gave that information to
Connors.
On December 30, 2014, Jones interviewed Connors. Prior to the start of
the interview, Connors signed a witness acknowledgment form that provided
1 Bulzak denied involvement in the incident and was not charged. A-2779-18 4 notice that he was a witness in an IA investigation concerning a complaint by
Carr. At the time of the interview, Connors was not a target of the investigation.
Connors admitted that on the day of the incident, he interviewed the
officers involved in the search, but did not write a report documenting the fact
that the interviews took place or detailing the information he gathered. In
addition, Connors told Jones he felt he could not act on Jacob's accusation
against King. He explained that:
I took it into consideration and then I made a point again to speak to Officer King in my office . . . . And he went on a long rant about . . . his future intentions with the department at the time . . . . And at the time Officer King had no discipline that I knew of . . . . So . . . I had one guy, Jacob, who is up for promotion who had a lengthy . . . disciplinary history saying he's seen someone do something. And then I have an officer with a stern (sic) clean record . . . telling me he had nothing to do with it . . . . So I had two different weighing options . . . .
When asked why he did not prepare an initial incident report, Connors
stated
I didn't generate any reports because I didn't have any credible evidence. And I did not want to mislabel any officer, uh, for being, eh, juvenile or make their – their work atmosphere and the people they work with harder. Once you accuse someone until they have their day in court they're assumed guilty in – in a lot of people's eyes in the court of public opinion. And if you have to work with someone you think that is doing something
A-2779-18 5 improper and we put the reports out there and everyone gets copies then no one's [going to want to] work with that individual.
Connors also admitted that Pierce's report was
vague intentionally because I didn't want to . . . automatically be branded with this title of, uh, rat or – a juvenile or – or a danger. [A]t the time all I had was hearsay. So the report was intentionally vague with the assumption that when I reported to work on my assigned day I would be interviewed first being[] that I was the Shift Commander of the jail for that incident.
After his interview, and almost two months after the incident, Connors
filed a report that stated that "more than one officer had been lying" and that
"more than one person had committed the act."
Based on the information gathered at the interviews, Jones determined that
Connors had violated his duties by failing to conduct an appropriate
investigation and to document the investigation he did undertake. Jones
determined that Connors should have: (1) had Jacobs write a report detailing
what he claimed to have seen; (2) detailed his investigation in a written report;
and (3) recommended disciplinary action be taken against King based on the
information he received. As a result of the findings he set forth in a written
report, Jones filed a complaint recommending Connors be disciplined.
A-2779-18 6 On February 5, 2015, CCDOC filed a preliminary notice of disciplinary
action against Connors seeking a thirty-day suspension based on the following
charges: 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:2-2.3(a)(12), specifically, violations of CCDOC's rules of conduct and
general orders. After a departmental hearing, all charges were sustained, and
CCDOC served Connors with a final notice of disciplinary action suspending
him for thirty days.
Connors appealed his suspension to the Commission, which transmitted
the matter to the Office of Administrative Law (OAL). After a hearing,
Administrative Law Judge (ALJ) Elia A. Pelios issued an initial decision
sustaining the charges. ALJ Pelios found, based on a preponderance of the
evidence, that on the day of the incident Pierce made Connors aware of the
inmates' complaints that their property had been defaced during the cell
searches. In addition, the ALJ found that Jacob told Connors that he witnessed
King defacing inmate property. The ALJ found that Connors failed to: (1)
document the incident and Jacob's allegation; (2) complete the investigation;
and (3) recommend disciplinary charges against King.
A-2779-18 7 The ALJ found that CCDOC had established each of the charges alleged.
The ALJ found that Connors's conduct was unbecoming a public employee
because he failed to initiate an appropriate investigation after receiving a report
of serious misconduct by a subordinate. That failure, the ALJ concluded, could
have an effect on the chain of command in the corrections facility, as employees
may be chilled in coming forward with allegations of wrongdoing if they believe
their reports of misconduct by coworkers will not be taken seriously.
In addition, the ALJ found that Connors neglected his duties because he
violated established CCDOC rules requiring a supervisor to conduct proper,
thorough, and complete investigations when circumstances so indicate, to
submit reports detailing those investigations, and to ensure that reports written
by subordinates do not provide false, improper, or incomplete information. This
finding included the ALJ's determination that Connors violated General Order
169, concerning the mandatory reporting of unusual incidents in the facility.
Finally, the ALJ found that CCDOC had established other sufficient cause
to discipline Connors, based on his violation of several facility rules specified
in the disciplinary charges concerning supervision, neglect of duty,
investigations, reports, and unbecoming conduct. The ALJ found that CCDOC
A-2779-18 8 had failed to establish Connors violated a CCDOC standing order concerning IA
procedures.
ALJ Pelios upheld the thirty-day suspension. The ALJ found Connors's
disciplinary history to be "not particularly noteworthy," although he declined to
find it "unremarkable." Connors had five prior written reprimands, three for
neglect of duty and one for conduct unbecoming a public employee, and one
one-day fine, but no major disciplinary action had been taken against him.
Several other incidents were addressed through counseling. No discipline had
been imposed on Connors since 2008.2 The ALJ determined that in light of the
paramilitary environment of the correctional facility and Connors's role in the
supervisory structure on the day in question, a thirty-day suspension was
appropriate and not barred by considerations of progressive discipline.
Connors filed exceptions to the ALJ's decision with the Commission. On
January 18, 2019, the Commission, "having made an independent evaluation of
the record," issued a final administrative determination adopting the ALJ's
findings of fact and initial decision affirming Connors's suspension.
This appeal followed. Connors argues that the Commission erred because
it adopted the ALJ's opinion, which: (1) did not include credibility findings on
2 The ALJ erroneously referred to 2009 in his opinion. A-2779-18 9 disputed facts; (2) did not address Connors's argument that CCDOC did not
comply with the forty-five-day rule, see N.J.S.A. 30:8-18.2; (3) violated
Connors' due process rights by relying on his internal affairs interview, which
was conducted without notice to him that he was a target of the investigation;
and (4) suspended Connors without first imposing progressive discipline.
II.
Our role in reviewing the decision of an administrative agency is limited.
Circus Liquors, Inc. v. Middletown Twp., 199 N.J. 1, 9 (2009). We will not
disturb the determination of the Commission absent a showing "that it was
arbitrary, capricious or unreasonable, or that it lacked fair support in the
evidence, or that it violated legislative policies expressed or implicit in the civil
service act." Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963).
Decisions of administrative agencies carry with them a presumption of
reasonableness. In re Carroll, 339 N.J. Super. 429, 437 (App. Div. 2001).
Moreover, "[a]ppellate courts must defer to an agency's expertise and superior
knowledge of a particular field." Greenwood v. State Police Training Ctr., 127
N.J. 500, 513 (1992). However, we are "in no way bound by the agency's
interpretation of a statute or its determination of a strictly legal issue."
Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85, 93 (1973).
A-2779-18 10 "There is no constitutional or statutory right to a government job." State-
Operated Sch. Dist. v. Gaines, 309 N.J. Super. 327, 334 (App. Div. 1998). Civil
Service employees' rights and duties are governed by the Civil Service Act,
which provides that a public employee may be subject to major discipline for
various employment-related offenses. N.J.S.A. 11A:2-6; N.J.A.C. 4A:2-2.3. In
an appeal from a disciplinary action or ruling by an appointing authority, the
appointing authority bears the burden of proof to show, by a preponderance of
the evidence, that the action taken was appropriate. N.J.S.A. 11A:2-21;
N.J.A.C. 4A:2-1.4(a); In re Polk, 90 N.J. 550, 560 (1982).
Having carefully reviewed Connors's arguments in light of the record and
applicable legal principles, we conclude the Commission's final agency decision
is sufficiently supported by the record and is not arbitrary, capricious, or
unreasonable. We add the following comments.
While it is true that the ALJ did not expressly state that he found the
testimony of any witness to be credible, it is clear from his findings of fact that
he found that Connors was aware of the incident on the day in question, that
Jacob told him King had defaced inmate property, that Connors failed to
complete a report detailing that information, and that Connors did not complete
A-2779-18 11 an investigation of the incident or memorialize any of the interviews he
conducted, or recommend disciplinary action against King.
Connors argues that the ALJ did not make a specific finding with respect
to whether Pierce submitted a timely report to IA. The ALJ's opinion suggests
that he found Pierce's testimony on this point credible. The ALJ notes that IA
was in possession of the original photographs and could not have obtained them
other than as an attachment to Pierce's report. However, even if the question of
Pierce's submission of a report to IA was not resolved, Connors admitted that he
instructed Pierce to make the report intentionally vague, thereby omitting
critical information of which Connors was aware. This fact alone is sufficient
support for the disciplinary charges.
We are not persuaded by Connors's arguments regarding his right to
representation when interviewed by Jones. See NLRB v. J. Weingarten, Inc.,
420 U.S. 251 (1975); In re Univ. of Med. & Dentistry of N.J., 144 N.J. 511, 526-
528 (1996). An employee is "entitled to the Weingarten right during the
investigation only if he reasonably believed that disciplinary action might
result." Id. at 529. "The reasonable belief standard is guided by 'objective
standards under all the circumstances of the case.'" Ibid. (quoting Weingarten,
420 U.S. at 257). An employee must be advised of the right to representation
A-2779-18 12 prior to the start of questioning when they are the subject of the investigation
and the right to representation attaches only once the employee "requests
representation and reasonably believes the interview may result in disciplinary
action." Id. at 526.
The record supports the conclusion that when Connors was interviewed,
Jones thought Connors was a witness, not a target, of the investigation. The
charges against Connors are based on his failure to memorialize Jacob's
accusation against King and detail the interviews he conducted, his instruction
to Pierce to write an intentionally vague report for submission to IA, and his
failure to recommend discipline against King. That information was obtained
during Jones's interview with Connors, not prior to the interview, and was not,
as suggested by Connors, readily apparent from the vague report Pierce filed
with IA.
We also see no basis to reverse the Commission's final agency decision
based on the forty-five-day rule. N.J.S.A. 30:8-18.2 provides in relevant part:
[a] person shall not be removed from employment or a position as a county correctional police officer, or suspended, fined or reduced in rank for a violation of the internal rules and regulations established for the conduct of employees of the county corrections department, unless a complaint charging a violation of those rules and regulations is filed no later than the 45th day after the date on which the person filing the
A-2779-18 13 complaint obtained sufficient information to file the matter upon which the complaint is based. A failure to comply with this section shall require a dismissal of the complaint.
Under an analogous statute governing discipline of State Police Officers, courts
have evaluated the "sufficient information" provision that starts the forty-five-
day clock. See N.J.S.A. 53:1-33. Under that statute, "it is not the happening of
the event giving rise to discipline that starts the clock for purposes of evaluating
timeliness, but the receipt of 'sufficient information' by the one who is
authorized to file the charge that is significant." Roberts v. Div. of State Police,
191 N.J. 516, 524 (2007). Receipt of an investigative report to the supervisor
permitted to file charges, will satisfy the sufficient information requirement.
Ibid.
The record supports the conclusion that the forty-five-day clock began on
January 7, 2015, when Jones submitted his report and recommendation for
discipline to the warden. The warden, not Jones, is the supervisor authorized to
submit charges against Connors. The formal charges were brought against
Connors on February 6, 2015, thirty days after sufficient information to do so
was received by the warden.
We disagree with Connors's argument that the forty-five-day clock began
when Pierce filed his report on November 9, 2014, or when Carr filed his
A-2779-18 14 complaint on December 1, 2014. Those documents did not provide sufficient
information to bring charges against Connors. While it was apparent on those
dates that Connors had not filed a report about the incident, the full context of
his actions, including the fact that he had interviewed many witnesses, including
one who accused King, and had directed Pierce to file a vague report with IA
omitting that information, were not known to those authorized to file charges.
We also reject Connors's argument that the Commission erred by not
imposing progressive discipline. Generally, the severity of a public employee's
discipline should increase incrementally. In re Herrmann, 192 N.J. 19, 33
(2007). However, progressive discipline can be waived if "the misconduct is
severe, when it is unbecoming to the employee's position or renders the
employee unsuitable for continuation in the position, or when [its] application
. . . would be contrary to the public interest." Ibid.; see also In re Stallworth,
208 N.J. 182, 196-197 (2011); Div. of State Police v. Jiras, 305 N.J. Super. 476,
478-82 (App. Div. 1997) (finding bypass of progressive discipline appropriate
after State Trooper assaulted a prisoner, rendering the Trooper unable to
function as a law enforcement officer).
As the ALJ aptly noted, Connors's disciplinary history was not sterling.
He had on several occasions previously been found to have neglected his duties
A-2779-18 15 and to have engaged in conduct unbecoming of a public employee. In addition,
the current charges involve actions that undermine the command structure at the
correctional facility, discourage officers from reporting misconduct by other
officers, and potentially left Carr in a dangerous position, as his name had been
scrawled on the personal photographs of inmates, but complete information
about the incident had not been memorialized.
To the extent we have not addressed Connors's other arguments, we
conclude they are without sufficient merit to warrant discussion in a written
opinion. R. 2:11-3(e)(1)(E).
Affirmed.
A-2779-18 16