IN THE MATTER OF DARIUS COLLINS, NORTHERN STATE PRISON (NEW JERSEY CIVIL SERVICE COMMISSION)

NOT FOR PUBLICATION WITHOUT THE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-3088-19

IN THE MATTER OF DARIUS
COLLINS, NORTHERN STATE
PRISON

Submitted May 12, 2021 – Decided July 21, 2021

Before Judges Alvarez and Sumners.

On appeal from the New Jersey Civil Service
Commission, Docket No. 2019-3353.

Cammarata, Nulty & Garrigan, LLC, attorneys for
appellant Darius Collins (John P. Nulty, Jr., on the
briefs).

Gurbir S. Grewal, Attorney General, attorney for
respondent New Jersey Department of Corrections
(Sookie Bae-Park, Assistant Attorney General, of
counsel; Jana R. DiCosmo, Deputy Attorney General,
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
 Darius Collins, a former senior corrections officer assigned to Northern

State Prison, appeals his May 8, 2019 termination from employment. We affirm.

By way of final notice of disciplinary action, Collins was found to have

committed several violations of the New Jersey Administrative Code, including

conduct unbecoming a public employee, neglect of duty, and falsification. See

N.J.A.C. 4A:2-2.3(a)(6), (7), (12), Off. of Hum. Res., N.J. Dep't of Corr., Hum.

Res. Bull. 84-17 C.8, C.11, D.1, D.7, and E.1 (1999). He appealed the removal

to the Civil Service Commission, which transferred the matter for a hearing as

a contested case to the Office of Administrative Law. See N.J.S.A. 52:14B-9.1

to -10.

At the administrative law hearing, the New Jersey Department of

Corrections (DOC) presented investigating officers as witnesses, and their

reports as supporting evidence. The triggering incident occurred on January 6,

2019, when Collins was the patrolling supervisor of prisoners housed in the

Administrative Close Supervision Unit (ACSU), described by one of the

investigators as a "jail for people who are already in jail." Collins had worked

as a corrections officer for over two years and had no prior disciplinary history.

The chain of events that Collins was charged with causing involved two

inmates taking unauthorized showers, and being able to move from one tier

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within the prison to another because gates were left open. They claimed that

after their showers, for which Collins wrongfully denied authorization, they

returned to their cells only to find the contents had been destroyed. The

prisoners were seriously injured "while resisting a ten-man team performing a

'two tier extraction' to get the two inmates under control."

The administrative law judge (ALJ) who heard the matter said he was

troubled by the DOC's presentation because, despite having recorded interviews

with Collins, the two prisoners directly involved and at least one other prisoner,

they merely presented the investigator's testimony and reports.

The DOC requested an adverse inference based on Collins's refusal to

testify. The ALJ agreed it would have otherwise been appropriate, but since no

effort was made by the DOC to compel his testimony or offer his video-recorded

interview, the ALJ could

only find that with an adverse inference, the evidence
is closer to being in equipoise than it would be without
it given the lack of direct and reliable evidence that
Collins committed what would be an incredibly stupid
and meaningless act of wrecking the prisoner's cell, nor
was anything stated or even implied about Collins from
any reliable source (or unreliable one for that matter)
that he has the character (or lack thereof) to commit
such an offense. By the respondent's own evidence,
prisons are indeed a powder keg[:] easily set to explode
without much or any warning. By a preponderance of
the evidence[,] I CANNOT FIND that Collins ignited

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 it. Nor did he make any material misstatement of fact
about the incident or his conduct during it.

The ALJ therefore concluded that the only charge the DOC proved was

neglect of duty. He explained that Collins

readily admitted it was his duty to see that the gate that
blocked access between the tiers was left secured and
that he failed to do so. As described by the [DOC], this
made this area of a high security part of the prison more
dangerous. In this event, where a team of ten men were
used for the "double tier extraction" made necessary by
the recalcitrant inmates, the area of conflict was more
likely to result in harm to the guards and prisoners
because they were engaged on stairs in addition to the
level floors.

Because there was no evidence that the two-tier extraction "resulted in . . .

greater injury to persons or property because the gate was left open," the ALJ

concluded that although clearly an act of neglect of duty, N.J.A.C. 4A:2-

2.3(a)(7), had been committed, none of the other offenses withstood the hearing.

Applying principles of progressive discipline, the judge concluded that the

incident likely would have occurred despite the gate being unsecured. Collins

admitted, to his credit, that he left the gate open. Acknowledging the need for

a "heavy penalty," since the only charge proven by a preponderance of the

evidence was neglect of duty, he imposed a term of 120 days' suspension and

reversed the removal order.

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 Although agreeing with the ALJ regarding the charges, the Commission

disagreed insofar as the penalty. Observing that the theory of progressive

discipline is inapplicable where the disciplinary infraction is quite serious, the

Commission noted "that a [s]enior [c]orrectional [p]olice [o]fficer is a law

enforcement officer who, by the very nature of his job duties, is held to a higher

standard of conduct than other public employees." The Commission went on to

find that "leaving a gate open [was], essentially, failing to perform the

fundamental duty of a [s]enior [c]orrectional [p]olice [o]fficer and [Collins's]

failure to perform such duty demonstrate[d] egregious neglect. Such an

infraction compromised the safety and security of the facility and all of the

employees and inmates therein." That the event occurred in the ACSU made the

infraction all the more troubling. Collins offered no explanation for the

"egregious lapse of duty." In light of the nature of the conduct, the Commission

reinstated termination as the sanction. This appeal followed.

Collins asserts the Commission committed these errors:

POINT I

THE CIVIL SERVICE COMMISSION'S
TERMINATION OF APPELLANT IS ARBITRARY,
CAPRICIOUS OR UNREASONABLE AND
CONTRARY TO THE CREDIBLE EVIDENCE IN
THE RECORD.

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 A. The CSC's Findings Upon Which Appellant's
Termination Was Based Are Contrary To The Record.

B. The Penalty Of Removal Is So Disproportionate
To The Offense As To Shock One's Sense Of Fairness.

It is black-letter law that an administrative decision, such as the

imposition of a penalty for a disciplinary infraction, is reversed only where

"arbitrary, capricious or unreasonable or . . . not supported by substantial

credible in the record as a whole." Henry v. Rahway State Prison, 81 N.J. 571,

579-80 (1980). We review such decisions according them a presumption of

reasonableness when they address matters within the agency's field of expertise.

Newark v. Nat. Res. Council, 82 N.J. 530, 540 (1980); In re Vey, 272 N.J. Super.

199, 205 (App. Div. 1993). We modify penalties only where "such punishment

is so disproportionate to the offense, in light of all the circumst ances, as to be

shocking to one's sense of fairness." In re Herrmann, 192 N.J. 19, 28-29 (2007).

In order for us to make that determination, it is apparent that the gravity

of Collins's lack of care must be considered. Ordinarily, the assessment of the

seriousness of disciplinary infractions "are matters peculiarly within the

expertise of the corrections officials." Bowden v. Bayside State Prison (Dep't

of Corr.), 268 N.J. Super. 301, 306 (App. Div. 1993). Collins is held to a higher

standard given the nature of his employment.

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 In this case, the potential consequences were serious. Leaving an interior

gate unlocked between two floors was indeed a failure "to perform the

fundamental duty of a [s]enior [c]orrectional [p]olice [o]fficer" demonstrating

"egregious neglect." Collins contends that any increase in danger from this act

was merely theoretical and not specifically established in the record. However,

there is some suggestion that an inmate's ability to transverse a greater

geographical area during the course of this incident posed a greater danger to

the inmates, prison guards, and the facility as a whole. That it was not a

precipitating factor does not answer the question. Leaving a gate unlocked

between floors in a prison is a very serious breach of basic protocol.

Certainly, Collins's singular act did not precipitate the conduct . Other

than enabling at least some of what occurred during this incident, it did not cause

any additional harm to inmates or guards. That does not address the fact that no

explanation is offered, nor can one be given, for the neglect to fulfill that basic

duty.

Progressive discipline is a very important principle. It is not, however, an

immutable mandate. Instead, it is factored into the relevant standard. In this

case, a corrections officer, without any explanation, while assigned to a unit

housing inmates requiring the highest level of security in the facility, neglected

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a fundamental duty. Under this scenario, it does not violate principles of

fundamental fairness to give little or no weight to the principle of progressive

discipline. Collins's blameless prior history does not suffice to make the

Commission's decision arbitrary, capricious, or unreasonable. The decision

complied with the DOC's legislative mandate—that it preserve the safety of

inmates, officers, and ultimately the public.

Affirmed.

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