NOT FOR PUBLICATION WITHOUT THE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-3580-17T3
IN THE MATTER OF
EUGENE R. ROYSTER AND
KATE BLASZKOWSKI,
BURLINGTON COUNTY.
______________________________
Argued June 4, 2019 – Decided July 9, 2019
Before Judges Suter and Enright.
On appeal from the New Jersey Civil Service
Commission, Docket Nos. 2018-1000 and 2018-1003.
Mark W. Catanzaro argued the cause for appellants
Eugene R. Royster and Kate Blaszkowski.
Primitivo J. Cruz argued the cause for respondent
Burlington County (Malamut & Associates, attorneys;
Andrew C. Rimol, on the brief).
Gurbir S. Grewal, Attorney General, attorney for
respondent New Jersey Civil Service Commission
(Pamela N. Ullman, Deputy Attorney General, on the
statement in lieu of brief).
PER CURIAM
Eugene R. Royster and Kate Blaszkowski appeal the April 6, 2018 final
agency decision of the Civil Service Commission (Commission) that affirmed
the termination of their employment as Burlington County Corrections Officers.
They do not dispute that on two separate dates, they failed to perform security
tours in the I-Wing of the Burlington County Detention Center (Jail) where they
were assigned, and then falsely entered in the Jail's logbook that they performed
the tours. Instead, they contend they should have been suspended and not
removed because others with similar infractions were not terminated. We affirm
the Commission's decision.
In July 2017, the Jail's video surveillance tapes were reviewed as part of
an investigation ordered by the warden following the death of an inmate in I-
Wing, and a report was prepared.1 Comparison of the videotapes with the Jail's
logbook showed that on June 3, 2017, Officer Royster recorded that he made
three security tours of the I-Wing he did not make. On July 1, 2017, he recorded
five security tours he did not make. On June 3 and July 1, 2017, Officer
Blaszkowski was assigned to the I-Wing to provide relief to other officers when
they went on break. She recorded one false entry on June 3, 2017, for a security
1
There is no allegation that appellants were involved with that incident. Rather,
it prompted an investigation that yielded additional issues.
A-3580-17T3
2
tour she did not make. On July 1, 2017, she recorded two security tours she did
not actually perform. Neither officer had a history of disciplinary infractions.
Both were longstanding employees.
The County's preliminary notices of disciplinary action sought removal of
both officers and charged them with incompetency, inefficiency or failure to
perform duties; inability to perform duties; conduct unbecoming a public
employee; neglect of duty; and other sufficient cause, N.J.A.C. 4A:2-2.3(a)(1),
(3), (6), (7), and (12). The "other sufficient cause" charge alleged specific
violations of the Jail's Policy and Procedures Manual (Manual).2 Appellants
were terminated from service following departmental hearings and issued final
notices of disciplinary action. Their appeals to the Commission were
transmitted to the Office of Administrative Law for a hearing.
Administrative Captain Matthew Leith testified he reviewed the findings
from the investigative report and compared those to the Jail's videotapes. These
showed discrepancies between the security tours performed by Royster and
Blaszkowski and what they recorded in the logbooks. I-Wing was for persons
newly committed to the Jail. Leith testified that "[t]he first 48 hours tend[ed] to
2
This included sections 1007, 1023, 1030, 1031, 1038, 1065, 1066, 1172, 1190,
1192 and 1250.
A-3580-17T3
3
be the most dangerous for inmates" because there was a higher suicide rate. In
I-Wing, the officers did not have the ability to see inside all the cells because of
the manner in which it was configured. Officers needed to enter the tier to see
what was going on inside the cells.
Security tours were required by the Jail's Manual to be performed
"approximately every thirty . . . minutes at irregular intervals." Leith testified
the purpose of the logbook was "to have an official record of what took place on
that tier on that day."
Royster explained he did not do the security tours because he "just got
comfortable." Blaszkowski did not do them because she was "too relaxed."
Both testified they understood the importance of doing them, that they were
important to the safety and security of the Jail, and they were one of the primary
responsibilities of a correction officer. They also understood it was important
to maintain an accurate logbook.
The administrative law judge's (ALJ) initial decision affirmed the
County's decision to remove the officers from their positions. Neither officer
had performed all of the required tours. Each made false entries in the logbook
to indicate they performed the security tours. Finding that there was no fixed
penalty imposed "when the charges involve[d] corrections officers who
A-3580-17T3
4
neglect[ed] their assigned duty and falsif[ied] records in order to make it appear
that they have performed the duty," the ALJ concluded that "removal [was] fully
warranted" in this case. The ALJ distinguished other cases cited by appellants,
finding "no legal basis . . . for 'disparate treatment' as that term is defined" and
recommended termination from their positions.
The Commission accepted and adopted the ALJ's findings of fact and
conclusions of law, following its "independent evaluation of the record." On
appeal from the Commission's decision, appellants allege that their disparate
treatment should preclude removal. They complain they were treated differently
than others who were similarly situated in the same building and in the State in
general. They also argue the ALJ was pre-disposed to removal and relied on his
personal views about the punishment.
The scope of our review of an administrative agency's final determination is
limited. In re Carter, 191 N.J. 474, 482 (2007). We will not interfere with an
agency's final decision unless it is "arbitrary, capricious or unreasonable or it is not
supported by substantial credible evidence in the record as a whole." Henry v.
Rahway State Prison, 81 N.J. 571, 579-80 (1980); see Russo v. Bd. of Trs., PFRS,
206 N.J. 14, 27 (2011). We "accord substantial deference to an agency head's
choice of remedy or sanction . . . ." In re Herrmann, 192 N.J. 19, 34-35 (2007)
A-3580-17T3
5
(quoting Div. of State Police v. Jiras, 305 N.J. Super. 476, 482 (App. Div.
1997)). We have applied such deference when reviewing determinations of the
Commission, or of its predecessor agencies that have administered the civil service
laws. See, e.g., Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562, 578 (1963);
Falcey v. Civil Serv. Comm'n, 16 N.J. 117, 125 (1954); In re Sheriff's Officer, 226
N.J. Super. 17, 21 (App. Div. 1988). "[P]rogressive discipline is not a necessary
consideration when reviewing an agency head's choice of penalty when the
misconduct is severe, when it is unbecoming to the employee's position or
renders the employee unsuitable for continuation in the position . . . ."
Herrmann, 192 N.J. at 33. The question is "whether such punishment is 'so
disproportionate to the offense, in the light of all the circumstances, as to be
shocking to one's sense of fairness.'" Carter, 191 N.J. at 484 (quoting In re Polk
License Revocation, 90 N.J. 550, 578 (1982)).
"[F]alsification of a report can disrupt and destroy order and discipline in
a prison." Henry, 81 N.J. at 580. In Henry, a corrections officer falsified a
report so he could continue his own investigation of drug trafficking in the
prison. Id. at 574. Although the Department of Corrections ordered Henry's
removal from employment for this, the Commission reduced the penalty to a
suspension. Ibid. The Court remanded to the Commission to re-determine the
A-3580-17T3
6
penalty to be imposed, noting that the deliberate falsification of the report
"[e]ven if motivated by good intentions . . . subverted the discipline at [the
prison]." Id. at 580.
In the case of In re Warren, 117 N.J. 295 (1989), the Supreme Court
reiterated this point. In Warren, the Court affirmed the suspension of a prison
guard who did not make a head-count of the inmates but said that he did. Id. at
299. The Court noted that if the case were tried as an intentional falsification
case, "the Board must consider this as an offense striking at the heart of
discipline within the corrections system." Ibid. Not to do so "would violate
implied legislative policies regarding prison security." Ibid.
We reject appellants' allegation that there was an inconsistency between
Henry and Warren. Warren was tried primarily as a neglect of duty case rather
than an intentional falsification case. In that context, the Court said "a period
of suspension is not a penalty that could not reasonably have been imposed on a
showing of the relevant factors." Ibid.
Appellants' argument that they were treated unfairly or disparately rests
on unreported cases with no precedential value. See R. 1:36-3 (providing that
"[n]o unpublished opinion shall constitute precedent or be binding upon any
court"). We reject appellants' arguments because they have cited no binding
A-3580-17T3
7
authority to support them. Even if we were to consider their arguments, the
cases cited all are distinguishable.
Appellants also allege unfair treatment because they contend a lieutenant
and a sergeant at the Jail were not disciplined for similar conduct. With respect
to the lieutenant, there was nothing in the record about falsification nor was the
record clear on whether all the tours were performed because the record was
incomplete. With respect to the sergeant, the record served only to raise issues;
while appellants argued the sergeant had not performed a tour, a claim that the
sergeant questioned, that record also was incomplete. The ALJ observed that it
was "unclear exactly what the appointing authority understood about [the
sergeant's or lieutenant's] on duty conduct vis-a-vis their own inspection
requirements at the time in question." We agree that appellants did not show
the Commission was arbitrary, capricious or unreasonable in its decision to
terminate appellants' employment based on this record.
Appellants did not prove disparate treatment. "The conscious exercise of
some selectivity in enforcement is not a constitutional violation unless the
decision to prosecute is based upon an unjustifiable standard such as race,
religion, or other arbitrary classification." Twp. of Pennsauken v. Schad, 160
N.J. 156, 183 (1999) (citing Oyler v. Boles, 368 U.S. 448, 456 (1962)).
A-3580-17T3
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"Disparate treatment is demonstrated when a member of 'a protected group is
shown to have been singled out and treated less favorably than others similarly
situated on the basis of an impermissible criterion' under the antidiscrimination
laws." Mandel v. UBS/PaineWebber, Inc., 373 N.J. Super. 55, 74 (App. Div.
2004) (quoting EEOC v. Metal Serv. Co., 892 F.2d 341, 347 (3d Cir. 1990)).
Appellants did not allege or show that they were part of a protected group or
singled out on that basis. They simply have failed to demonstrate a prima facie
case of disparate treatment.
Appellants raise concerns that the ALJ may have been biased in favor of
their termination. This argument provides appellants no avenue of relief,
however, because the Commission's final agency decision said that it made an
independent evaluation of the record in reaching its conclusion; there was no
allegation the Commission was biased. In addition, our review of the record
showed no objectively reasonable basis to believe "a reasonable, fully informed
person [would] have doubts about the judge's impartiality[.]" P.M. v. N.P., 441
N.J. Super. 127, 145 (App. Div. 2015) (quoting DeNike v. Cupo, 196 N.J. 502,
517 (2008)).
Affirmed.
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IN THE MATTER OF EUGENE R. ROYSTER AND KATE BLASZKOWSKI, BURLINGTON COUNTY (CIVIL SERVICE COMMISSION)
Combined Opinion