IN THE MATTER OF GIOVANI COLON, DEPARTMENT OF CORRECTIONS(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NOT FOR PUBLICATION WITHOUT THE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-1726-15T4

IN THE MATTER OF
GIOVANI COLON,
DEPARTMENT OF CORRECTIONS.
________________________________

Argued May 18, 2017 – Decided July 14, 2017

Before Judges Hoffman and Whipple.

On appeal from Civil Service Commission,
Docket No. 2016-1452.

Colin M. Lynch argued the cause for appellant
Giovani Colon (Zazzali, Fagella, Nowak,
Kleinbaum & Friedman, attorneys; Mr. Lynch,
of counsel and on the briefs; Kaitlyn E.
Dunphy, on the brief).

Peter H. Jenkins, Deputy Attorney General
argued the cause for respondent Department of
Corrections (Christopher S. Porrino, Attorney
General, attorney; Melissa Dutton Schaffer,
Assistant Attorney General, of counsel; Mr.
Jenkins, on the brief).

Christopher S. Porrino, Attorney General,
attorney for respondent Civil Service
Commission (Pamela N. Ullman, Deputy Attorney
General, on the statement in lieu of brief).

PER CURIAM
 Petitioner, Giovani Colon, appeals from a September 3, 2015

final administrative action from the Civil Service Commission

(Commission) and a December 17, 2015, denial of reconsideration

of a Department of Correction (DOC) disciplinary action against

petitioner removing him from his position for using excessive

force against an inmate. We affirm.

Petitioner worked for the DOC as a senior corrections officer

at Edna Mahan Correctional Facility for Women. This case stems

from a January 26, 2015 incident between petitioner and an inmate,

C.B.1 C.B. is a special needs inmate receiving psychiatric care.

C.B. approached the control booth next to the day room where

petitioner was working and asked for pictures to be returned to

her. C.B. had recently been released from detention and was told

by another inmate petitioner had collected her belongings.

Petitioner told C.B. he did not have her pictures, the day room

was closed, and C.B. must return to her housing unit. C.B. left

but returned and wanted to look in the office herself for the

pictures. Petitioner again directed C.B. to return to her housing

unit. C.B. began to leave but stopped and said something over her

shoulder. According to petitioner, C.B. threatened that "she was

not going down to her wing until she punched [him] in the face."

1
We use initials to protect the identity of the inmate.

2 A-1726-15T4
 The interaction was captured on the correctional facility's

security cameras from two angles. The video shows C.B. approaching

the control booth twice; the second time when she began to walk

away, she stopped and said something over her shoulder. Next, the

video shows petitioner walking towards C.B., who turned and

continued to walk back towards the housing unit. Petitioner closed

the gap between himself and C.B., standing inches from her. From

the camera's angle, C.B. appears to be clenching and unclenching

her left hand. Petitioner pushed C.B. The push caused C.B. to

stumble, and eventually petitioner forcefully pushed her to the

floor. C.B. tried to punch petitioner, who testified he "took her

down" and "only used the force necessary to control her." However,

the video shows petitioner punching C.B. while she was on the

floor. Petitioner testified C.B. continued to resist and was

unaware of how C.B. endured a bump on her head. A "Code 33"2 was

called, bringing officers to the scene.

When a Code 33 is called, the shift commander reviews any

surveillance video of the incident. Center Control Lieutenant

Gerald Petti reviewed the video, observed petitioner pushing an

inmate, and referred the incident to the Special Investigation

Division.

2
A Code 33 refers to a fight within the correction facility.

3 A-1726-15T4
 A Preliminary Notice of Disciplinary Action was served on

petitioner on March 12, 2015. Following a hearing, a final notice

of disciplinary action was issued, sustaining charges pursuant to

N.J.A.C. 4A:2-2.3(a)(6), conduct unbecoming a public employee, and

N.J.A.C. 4A:2-2.3(a)(12), other sufficient cause, which included

violation of the Human Resources Bulletin 84-17 as amended for

inappropriate physical contact or mistreatment of an inmate,

patient, client, resident or employee. Petitioner was removed

from his position, effective April 6, 2015. Petitioner requested

a hearing, and the matter was transmitted to the Office of

Administrative Law as a contested case and heard by an

Administrative Law Judge (ALJ) on July 9, 2015.

Senior Investigator Renee Caldwell testified as to the

results of her investigation into the January 26 incident. After

reviewing the video, Caldwell interviewed C.B. and took a written

statement. C.B. explained she approached the officer's area to

ask about her pictures, and petitioner began screaming at her to

go to her wing, cursing and saying he had no pictures. She

described the incident, stating petitioner had followed her,

shoved her, and pushed her to the floor where she hit her head.

She described petitioner continuing to punch her in the head and

face.

4 A-1726-15T4
 Petitioner did not speak to Caldwell, but he provided a

special custody report following the incident:

I explained to Inmate [C.B.] that the day room
was now closed and that she would have to
return to the wing[.] [A]s I walked over to
explain that Inmate [C.B.] stated "she was
going to punch me in my face." Due to the
immediate threat[,] I pushed the inmate away
to create distance. At that time[,] Inmate
[C.B.] tried to punch me. I then took the
inmate to the ground and attempted to handcuff
the inmate.

Major Allen Tompkins testified regarding the training

officers receive regarding the appropriate use of force. Tompkins

testified using the appropriate amount of force is particularly

important in the prison setting because situations can escalate

quickly, and Tompkins agreed an officer should take extra efforts

to avoid antagonizing a special needs inmate.

After reviewing the evidence, the ALJ issued an initial

decision dismissing the charge of conduct unbecoming but sustained

the charge of other sufficient cause as a violation of DOC

policies. The ALJ found petitioner shoved C.B. believing he was

justified under the DOC use of force policy because C.B. was going

to punch him. However, the ALJ found petitioner violated DOC

policy when he chose to follow C.B. rather than notify his

supervisor about a threat, and he made the situation worse by

coming within inches of C.B. The ALJ concluded the penalty of

5 A-1726-15T4
removal was excessive for petitioner's conduct and imposed a forty-

day suspension.

After reviewing the record, the Commission entered a Final

Administrative action on September 3, 2015, rejecting the ALJ's

decision and sustaining the charges and penalty imposed by the

DOC. The Commission also concluded removal was the only

appropriate penalty in light of petitioner's prior disciplinary

history. The Commission denied reconsideration of the Final

Administrative action on December 17, 2015. This appeal followed.

On appeal, petitioner argues the ALJ and the Commission

violated his procedural due process rights by sustaining charges

not specified in the notices of disciplinary action. He also

argues the penalty of removal was unwarranted and only progressive

discipline was warranted.

Our review of agency action is limited. "An appellate court

ordinarily will reverse the decision of an administrative agency

only when the agency's decision is 'arbitrary, capricious or

unreasonable or is not supported by substantial credible evidence

in the record as a whole.'" Ramirez v. N.J. Dep't. of Corr., 382

N.J. Super. 18, 23 (App. Div. 2005) (quoting Henry v. Rahway State

Prison, 81 N.J. 571, 579-80 (1980)). "An administrative agency's

interpretation of statutes and regulations within its implementing

and enforcing responsibility is ordinarily entitled to our

6 A-1726-15T4
deference.'" Wnuck v. N.J. Div. of Motor Vehicles, 337 N.J. Super.

52, 56 (App. Div. 2001) (quoting In re Appeal by Progressive Cas.

Ins. Co., 307 N.J. Super. 93, 102 (App. Div. 1997)). Therefore,

"if substantial credible evidence supports an agency's conclusion,

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) (citing

Clowes v. Terminix Int'l, 109 N.J. 575, 587 (1998)). Additionally,

a presumption of reasonableness attaches to the actions of

administrative agencies. Newark v. Nat. Res. Council, 82 N.J.

530, 539-40 (1980).

Here, petitioner did not overcome the presumption of

reasonableness. The record contains sufficient credible evidence

of his use of excessive force by shoving C.B. and engaging in

conduct unbecoming of an employee. The ALJ found petitioner

escalated the situation unnecessarily. The Commission agreed with

the ALJ's factual findings and determined petitioner's conduct was

not acceptable.

Petitioner served as a corrections officer with full police

power pursuant to N.J.S.A. 2A:154-4, and as such, he was held to

a higher standard of conduct than other public employees and he

was expected to act in a reasonable manner. See In re Phillips,

117 N.J. 567, 576 (1990); Moorestown Twp. v. Armstrong, 89 N.J.

7 A-1726-15T4
Super. 560, 566 (App. Div. 1965). "A finding of misconduct by a

police officer need not be predicated on the violation of any

particular department rule or regulation." Phillips, supra, 117

N.J. at 576 (citing In re Emmons, 63 N.J. Super. 136, 140 (App.

Div. 1960)).

In Emmons, we upheld suspension for "conduct unbecoming a

police officer" based on an officer's refusal to cooperate in an

examination to determine his sobriety following an off-duty

automobile accident. Emmons, supra, 63 N.J. Super. at 142. We

said, "[A] finding of misconduct . . . may be based merely upon

the violation of the implicit standard of good behavior which

devolves upon one who stands in the public eye as an upholder of

that which is morally and legally correct." Id. at 140 (citing

Asbury Park v. Dep't of Civil Serv., 17 N.J. 419, 429 (1955)). We

defined conduct unbecoming an officer as "any conduct which

adversely affects the morale or efficiency of the bureau [or]

which has a tendency to destroy public respect for municipal

employees and confidence in the operation of municipal services."

Ibid. (alteration in original). Here, petitioner engaged in

conduct, which violated an implicit standard of good behavior,

applicable to corrections officers.

Petitioner argues the Commission's decision to remove him for

violating an uncharged and unwritten policy that he must keep an

8 A-1726-15T4
arm's length away from an inmate and call a supervisor if an inmate

is insubordinate is arbitrary and capricious. We disagree. The

Corrections Academy training policy instructs officers to keep an

arm's length between them and inmates. Moreover, petitioner was

on notice the entire incident formed the basis of these charges,

and thus, he was on notice of the underlying charges.

Petitioner also argues the penalty of removal is excessive.

We disagree. A deferential standard applies to our review of

disciplinary sanctions. See Knoble v. Waterfront Comm'n of N.Y.

Harbor, 67 N.J. 427, 431-32 (1975). We alter a sanction imposed

by an administrative agency only "when necessary to bring the

agency's action into conformity with its delegated authority.

[This court] has no power to act independently as an administrative

tribunal or to substitute its judgment for that of the agency."

In re Polk, 90 N.J. 550, 578 (1982). 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." Ibid. "The

threshold of 'shocking' the court's sense of fairness is a

difficult one, not met whenever the court would have reached a

different result." In re Herrmann, 192 N.J. 19, 28-29, (2007).

Moreover, in Phillips, our Supreme Court recognized a tribunal may

9 A-1726-15T4
consider an employee's past record "when determining the

appropriate penalty for the current offense." Phillips, supra,

117 N.J. at 581.

The Commission considered petitioner's conduct egregious

because he did not exercise the required restraint and escalated

the incident unnecessarily. The Commission rejected progressive

discipline considering petitioner's egregious conduct and his

prior disciplinary record. Under our standard of review, we see

no basis to interfere with that determination.

Affirmed.

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