FRANCES CASO VS. FERNANDO GUERRERO(FM-02-2622-11, BERGEN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-3640-14T1
IN THE MATTER OF
DAVID KENNEY,
BURLINGTON COUNTY
JAIL.
—————————————————————————

Argued December 15, 2016 – Decided March 8, 2017

Before Judges Hoffman and O'Connor.

On appeal from the Civil Service Commission,
Docket No. 2014-52.

Mark W. Catanzaro argued the cause for
appellant David Kenney.

Michael V. Madden argued the cause for
respondent Burlington County Jail (Madden &
Madden, P.A., attorneys; Mr. Madden and Regina
M. Philipps, on the brief).

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

PER CURIAM

Appellant David Kenney, a Burlington County corrections

officer, appeals from the April 1, 2015 final administrative agency

decision of the Civil Service Commission (Commission). The

decision imposed a twenty-day suspension (for conduct unbecoming
a public employee, neglect of duty, and other sufficient cause)

based upon Kenney's failure to report to his employer the fact the

New Jersey State Police (NJSP) conducted a search of his home

pursuant to a search warrant. We reverse.

The parties stipulated the following facts before the

administrative law judge (ALJ). Kenney worked for the Burlington

County Department of Corrections (BCDC) at the Burlington County

Jail. On February 6, 2006, Kenney acknowledged receipt of the

jail's standard operating policies and procedures manual. The

manual stated, in pertinent part:

It is the officer's duty and responsibility
to report in writing to the Jail administrator
(warden), deputy warden, and/or his designee
(chief of security unless otherwise specified)
within twenty-four (24) hours and/or the next
working day (prior to the closing of the
administrative office . . . [a]ny incident or
receipt of information that may threaten
institution security, confidential
information being reported outside of the
Jail, which may negatively impact upon the
Jail.

On October 30, 2008, Kenney was scheduled to work the 7 a.m.

to 3 p.m. shift. At approximately 6 a.m., the NJSP executed a

search warrant at Kenney's home as part of a child pornography

investigation. While they searched his house, the police

restrained Kenney and read him his Miranda1 rights. The police

1
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d
694 (1966).
2 A-3640-14T1
seized a number of items from Kenney's home. At 6:30 a.m., Kenney

called to state he would not report to work that day. On March

17, 2010, the NJSP concluded it lacked sufficient evidence to

charge Kenney with endangering the welfare of children, N.J.S.A.

2C:24-4.

In December 2012, in connection with an unrelated matter, an

internal affairs officer at the jail became aware of the October

2008 search of Kenney's home. On January 31, 2013, following a

brief investigation that included an interview of Kenney, the BCDC

served Kenney with a preliminary notice of disciplinary action

(PNDA)2 for failing to report the NJSP investigation involving the

search of his home.

On June 26, 2013, following a disciplinary hearing, the BCDC

served Kenney with a final notice of disciplinary action,

suspending him for twenty working days. Kenney appealed the

decision to the Office of Administrative Law (OAL) pursuant to

N.J.S.A. 40A:14-202(d). The matter was treated as a contested

case and assigned to an ALJ for a hearing.

Before the ALJ, the internal affairs officer testified that

Kenney explained he did not report the incident because "he wasn't

concerned with the facility, he was only concerned with himself."

2
The PNDA charged appellant 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:2-2.3(a)(12).
3 A-3640-14T1
Kenney admitted he was familiar with the jail's standard operating

policies and procedures manual, but said he did not believe the

search of his home was "a reportable incident." The internal

affairs officer testified Kenney "could have been placed in

different areas of the facility if the administration had known

about his situation[,] [w]here his responsibility would have been

less."

One of the jail's lieutenants also testified. He related his

experience with corrections officers "involved in a situation not

. . . reported to us. And you could clearly tell they weren't a

hundred percent attentive to their duties because of the

situation." He explained he "moved them to an area that was less

likely to have inmate contact. It would be a . . . quieter area

. . . for their own piece of mind and to make sure that there was

nothing to threaten [the jail's] safety and security."

On cross-examination, the lieutenant acknowledged he had "no

information that Officer Kenny wasn't attentive to his duties

during [the] time frame" at issue. Nor did he "have any

information that Officer Kenny wasn't attentive to his duties in

December of 2012 or January 2013." Appellant did not testify.

The ALJ sustained the administrative charges of conduct

unbecoming a public employee, neglect of duty, and other sufficient

cause. The ALJ concluded the jail's standard operating policies

4 A-3640-14T1
and procedures manual established that Kenney had a "duty to report

the incident of October 30, 2008." The ALJ explained:

No matter what the correction officer
considers the likelihood of an arrest,
indictment or criminal information, Jail
management must be in a position to make a
reasonable determination of what, if any,
action to take regarding the assignment of an
officer who is the subject of an ongoing
criminal investigation. Appellant's action
deprived the Jail of taking any action that
might have been determined appropriate to
fulfill its obligations and duties to the
public and the staff of the facility.

The Commission "accepted and adopted the Findings of Fact and

Conclusion as contained in the . . . [ALJ]'s initial decision."

This appeal followed.

On appeal, Kenney argues the jail's standard operating

policies and procedures manual, "in existence at the time[,] was

vague and subject to various levels of interpretation." He further

contends he "had to be clairvoyant to know what had to be disclosed

and what did not."

Our scope of review of an administrative agency's final

determination is limited. In re Carter, 191 N.J. 474, 482 (2007).

We accord to the agency's exercise of its statutorily delegated

responsibilities a "strong presumption of reasonableness." City

of Newark v. Nat. Res. Council, 82 N.J. 530, 539, cert. denied,

449 U.S. 983, 101 S. Ct. 400, 66 L. Ed. 2d 245 (1980). The burden

is upon the appellant to demonstrate grounds for reversal. McGowan
5 A-3640-14T1
v. N.J. State Parole Bd., 347 N.J. Super. 544, 563 (App. Div.

2002) (citation omitted); see also Bowden v. Bayside State Prison,

268 N.J. Super. 301, 304 (App. Div. 1993) (citation omitted)

(holding that "[t]he burden of showing the agency's action was

arbitrary, unreasonable, or capricious rests upon the appellant"),

certif. denied, 135 N.J. 469 (1994).

To that end, we will "not disturb an administrative agency's

determinations or findings unless there is a clear showing that

(1) the agency did not follow the law; (2) the decision was

arbitrary, capricious, or unreasonable; or (3) the decision was

not supported by substantial evidence." In re Application of

Virtua-West Jersey Hosp. Voorhees for a Certificate of Need, 194

N.J. 413, 422 (2008) (citations omitted); see also Circus Liquors,

Inc. v. Governing Body of Middletown Twp., 199 N.J. 1, 9-10 (2009)

(citation omitted). We are not, however, in any 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). If substantial evidence supports the agency's

decision, "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) (citations omitted).

6 A-3640-14T1
 In this case, we note on June 1, 2012, the jail amended its

standard operating policies and procedures manual to state, "Any

contact with a law enforcement agency must be reported immediately

to the department. This includes, but not limited to [sic], the

officer being questioned, victim, witness, or suspect [sic]."

The manual continues to state officers have duty to report

"[a]ny incident or information which may negatively impact upon

the jail and/or any information that may threaten security." The

June 1, 2012 amendment supports the validity of Kenney's argument

in two ways. First, the manual separately lists the new duty (to

report any contact with law enforcement) immediately after the

duty at issue (to report information that may negatively impact

upon the jail), suggesting the duty at issue did not include the

duty to report "[a]ny contact with a law enforcement agency."

Second, even if the jail had amended the duty at issue to require

its officers to report contact with law enforcement, the amendment

would have effectively admitted that the previous version was

unclear regarding the type of incidents that could "negatively

impact" upon the jail or threaten security.

Because we are not "bound by the agency's interpretation of

a statute or its determination of a strictly legal issue," we

decline to read a duty into the jail's manual that the jail itself

was unsure it had established before the June 1, 2012 amendment.

7 A-3640-14T1
Mayflower, supra, 64 N.J. at 93. The jail's internal affairs

officer testified that Kenney told him "he did not believe [the

police investigation] was a reportable incident." We find the

decision under review lacks the required substantial evidence to

support the finding that Kenney violated the jail's standard

operating policies and procedures manual, as it existed in October

2008. We therefore reverse the Commission decision under review.

Reversed.

8 A-3640-14T1