NOT FOR PUBLICATION WITHOUT THE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-1899-15T1
IN THE MATTER OF TAKIA JOHNSON,
CAMDEN COUNTY DEPARTMENT OF
CORRECTIONS.
_________________________________
Submitted May 2, 2017 – Decided May 15, 2017
Before Judges Ostrer and Vernoia.
On appeal from the Civil Service Commission,
Docket No. 2015-3106.
William B. Hildebrand, attorney for appellant
Takia Johnson.
Christopher A. Orlando, County Counsel,
attorney for respondent Camden County
Department of Corrections (Howard L. Goldberg,
First Assistant County Counsel, and Antonieta
Paiva Rinaldi, Assistant County Counsel, on
the brief).
Christopher S. Porrino, 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
Appellant Takia Johnson appeals the Civil Service
Commission's (Commission) final agency decision finding the Camden
County Department of Corrections (CCDC)1 properly removed
appellant from her position as a county corrections officer for
insubordination, conduct unbecoming a public employee, neglect of
duty, and other sufficient cause including violations of CCDC's
rules and regulations. We reject appellant's argument that the
sanction of removal was excessive, and affirm.
I.
CCDC hired appellant as a county corrections officer in 2003.
During the course of an investigation of officer Michael Jacob's
possession of cell phones in the Camden County jail, the CCDC's
internal affairs unit discovered numerous text messages exchanged
between Jacob and appellant while appellant was on-duty.
Appellant was interviewed and acknowledged bringing her
cellphone into the jail and using it to send messages, make phone
calls, and send pictures to Jacob while she was on duty. She
admitted possessing and using her cellphone while on duty with
prisoners at the hospital. In addition, she explained she took a
photograph with her phone of another officer's naked buttocks
without his knowledge while they were on duty at the hospital, and
sent the photograph to Jacob. She also admitted knowing it was a
violation of CCDC's policy to bring a cellphone into the jail and
1 The CCDC is also occasionally referred to in the record as the
Camden County Correctional Facility.
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to the hospital while on duty, and that doing so constituted a
breach of security.
On January 26, 2015, CCDC issued a preliminary notice of
disciplinary action for removal, charging appellant with:
insubordination, N.J.A.C. 4A:2-2.3(a)(2); conduct unbecoming a
public employee, N.J.A.C. 4A:2-2.3(a)(6); neglect of duty,
N.J.S.A. 4A:2-2.3(a)(7); other sufficient cause, N.J.S.A. 4A:2-
2.3(a)(12); and violations of various CCDC policies and rules.
Following a departmental hearing, the CCDC removed appellant
effective June 29, 2015.
Appellant appealed, and the Commission referred the matter
to the Office of Administrative Law. A hearing was conducted before
an Administrative Law Judge (ALJ) who issued an initial written
decision sustaining each of the charges and CCDC's decision to
remove appellant. Appellant filed exceptions to the ALJ's
decision. On December 18, 2015, the Commission issued its final
decision adopting the findings and conclusions of the ALJ and
determining CCDC's removal of appellant was justified. This appeal
followed.
On appeal, appellant argues:
Point I
REMOVAL IS TOO HARSH A PENALTY FOR A CELL PHONE
VIOLATION.
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II.
Our role in reviewing the Commission's decision is limited.
In re Stallworth, 208 N.J. 182, 194 (2011). "[A] 'strong
presumption of reasonableness attaches to [an agency decision].'"
In re Carroll, 339 N.J. Super. 429, 437 (App. Div.) (quoting In
re Vey, 272 N.J. Super. 199, 205 (App. Div. 1993), aff'd, 135 N.J.
306 (1994)), certif. denied, 170 N.J. 85 (2001). We "may not
substitute [our] own judgment for the agency's, even though [we]
might have reached a different result." Stallworth, supra, 208
N.J. at 194 (quoting In re Carter, 191 N.J. 474, 483 (2007)).
"This is particularly true when the issue under review is directed
to the agency's special 'expertise and superior knowledge of a
particular field.'" Id. at 195 (quoting In re Herrmann, 192 N.J.
19, 28 (2007)).
Our deference to agency decisions "applies to the review of
disciplinary sanctions as well." Herrmann, supra, 192 N.J. at 28.
"In light of the deference owed to such determinations, when
reviewing administrative sanctions, 'the test . . . is "whether
such punishment is so disproportionate to the offense, in light
of all the circumstances, as to be shocking to one's sense of
fairness."'" Id. at 28-29 (alteration in original) (quoting In re
Polk, 90 N.J. 550, 578 (1982)). "The threshold of 'shocking' the
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court's sense of fairness is a difficult one, not met whenever the
court would have reached a different result." Id. at 29.
"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.'" Stallworth, supra, 208 N.J. at 194 (second alteration
in original) (quoting Henry v. Rahway State Prison, 81 N.J. 571,
579-80 (1980)). To determine whether an agency action is arbitrary,
capricious, or unreasonable, we must examine
(1) whether 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 erred in reaching a conclusion that
could not reasonably have been made on a
showing of the relevant factors.
[Ibid. (quoting Carter, supra, 191 N.J. at
482-83).]
The findings of fact made by an administrative agency are binding
on appeal if they are supported by "sufficient credible evidence."
In re Taylor, 158 N.J. 644, 656-57 (1999). We are not however
bound by the agency's legal conclusions, which we review de novo.
A.B. v. Div. of Med. Assistance & Health Servs., 407 N.J. Super.
330, 340 (App. Div.), certif. denied, 200 N.J. 210 (2009).
5 A-1899-15T1
Applying these principles, we are satisfied there is no basis
to reverse the Commission's decision sustaining appellant's
removal. She contends that removal is excessive because the CCDC
and Commission failed to employ principles of progressive
discipline. She argues this was her first offense for improper use
of a cell phone and that, although what she did was wrong, it was
not sufficiently egregious to warrant her removal.
The concept of progressive discipline has been employed in
two ways: "(1) to 'ratchet-up' or 'support imposition of a more
severe penalty for a public employee who engages in habitual
misconduct'; and (2)'to mitigate the penalty' for an employee who
has a record largely unblemished by significant disciplinary
infractions." Stallworth, supra, 208 N.J. at 196 (quoting
Herrmann, supra, 192 N.J. at 30-33). Progressive discipline is
not, however, "'a fixed and immutable rule to be followed without
question,' because 'some disciplinary infractions are so serious
that removal is appropriate notwithstanding a largely unblemished
record.'" Ibid. (quoting Carter, supra, 191 N.J. at 484). For
example, "progressive discipline has been bypassed when an
employee engages in severe misconduct, especially when the
employee's position involves public safety and the misconduct
causes a risk of harm to persons or property." Herrmann, supra,
192 N.J. at 33.
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Here, appellant engaged in an ongoing, knowing, and
intentional violation of the CCDC's rules while on duty, which,
as the ALJ recognized, "compromised the security and functioning
of the correctional facility, [and] jeopardized the safety of
fellow staff members." While on duty, she also photographed a
partially naked fellow officer without his knowledge and sent the
photograph to Jacob. Thus, we discern no abuse of discretion in
the Commission's conclusion that the egregiousness of appellant's
conduct alone warranted her removal. Ibid.
Moreover, the record shows appellant received formal
discipline seventeen times for offenses including neglect of duty,
abuse of position, conduct unbecoming a public employee, and
insubordination. She received two verbal reprimands, three
reprimands, five "day fine(s)," and eight separate suspensions of
between two and ninety days. Thus, the Commission's reliance on
appellant's history of habitual misconduct is consistent with
notion of progressive discipline, Stallworth, supra, 208 N.J. at
196, and its decision sustaining her removal is not an abuse of
discretion.
Affirmed.
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