IN THE MATTER OF GARY VICTOR, MERCER COUNTY DEPARTMENT OF PUBLIC SAFETY(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NOT FOR PUBLICATION WITHOUT THE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-2145-15T2

IN THE MATTER OF
GARY VICTOR,
MERCER COUNTY DEPARTMENT
OF PUBLIC SAFETY
______________________________

Submitted June 1, 2017 – Decided July 14, 2017

Before Judges Lihotz and Whipple.

On appeal from the Civil Service Commission,
Docket No. 2012-2640.

Alterman & Associates, L.L.C., attorneys for
appellant Gary Victor (Stuart J. Alterman, of
counsel and on the briefs; Matthew R. Dempsky,
on the briefs).

Arthur R. Sypek, Jr., Mercer County Counsel,
attorney for respondent Mercer County
Department of Public Safety (Kristina E.
Chubenko, Assistant County Counsel, of counsel
and 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
 Petitioner Gary Victor appeals from a December 17, 2015 final

administrative action of the Civil Service Commission (Commission)

upholding his ten-day suspension. We affirm.

Petitioner began working as a correction officer in Mercer

County in 1993, and was promoted to sergeant in 2007, a position

he held when this matter arose. On January 24, 2011, petitioner

was the Receiving and Discharge (R&D) Sergeant. On that night,

he mistakenly discharged an inmate instead of turning him over to

the Plainsboro Police Department as required by the inmate's

discharge paperwork.

On or about May 11, 2011, the County of Mercer (County) served

petitioner with a preliminary notice of disciplinary action, in

accordance with N.J.A.C. 4A:2-2.5(a). The County sought a ten-

day working suspension and charged petitioner with: 1) conduct

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

of duty, N.J.A.C. 4A:2-2.3(a)(7); and 3) "[o]ther sufficient

cause: violation of administrative procedures and/or regulations

involving safety & security (D-6) [Standard Operating Procedure]

210," "[n]eglect of duty, loafing, idleness, or willful failure

to devote attention to tasks which would result in danger to

2 A-2145-15T2
persons or property. (B-2)," N.J.A.C. 4A:2-2.3(a)(12).1 After a

departmental disciplinary hearing, the County served petitioner

with a final notice of disciplinary action imposing a ten-day

working suspension beginning on April 21, 2012. Petitioner

appealed and the matter was transferred to the Officer of

Administrative Law for a de novo hearing.

We discern the following from the hearing record. Lieutenant

Steven Boseke was shift commander at the correctional facility on

January 24, 2011. Boseke testified three different individuals

review an inmate's record to ensure the particular inmate is to

be discharged. Here, Boseke, Mary Gales, a civilian employee, and

Lieutenant P.A. Barber signed the inmate's discharge paperwork.

Boseke testified the inmate's paperwork stated, "Turned over to

Plainsboro Township," however, on the top right corner there was

a handwritten note, which read, "No ride, Annex." Boseke did not

recall seeing the handwritten note prior to signing the discharge

paperwork and stated, if he had seen it, he would have questioned

it, because it meant the inmate was to be released to the street.

Boseke identified a body receipt form used when officers from

another municipality come to retrieve an inmate. The retrieving

1
At the time petitioner received the preliminary notice of
disciplinary action, the regulation in which he was cited for was
N.J.A.C. 4A:2-2.3(a)(11), however, that section has since been
amended and is now N.J.A.C. 4A:2-2.3(a)(12).

3 A-2145-15T2
officer must sign the form to demonstrate he has taken custody of

the inmate. The body receipt should be attached to the discharge

paperwork. Once all forms are collected and signed, the paperwork

is sent to the R&D Sergeant, who on January 24, 2011, was

petitioner. Petitioner's signature appears at the bottom of the

inmate's discharge paperwork dated January 24, 2011.

That night, petitioner called Boseke and told him he

mistakenly discharged the inmate to the streets.2 Boseke

instructed petitioner to call the transportation team and see if

the inmate was still in the van. After speaking with petitioner

Officer Elgee Styles called Boseke and reported the inmate had

been dropped off. Boseke advised Styles to call Trenton Police

Department for backup if needed. Trenton Police assisted in re-

arresting the inmate who was brought back to the correctional

facility. Boseke then wrote up an incident report, and instructed

the officers involved to provide reports. All of the reports were

turned over to Captain Richard Bearden.

Mary Gales works in the records department and prepared the

inmate's discharge paperwork. Boseke testified Gales crossed out

"This certified that I, Plainsboro, received" because she had

2
Boseke testified when an inmate does not have a ride home from
the correctional facility, the transportation team will drop the
inmate off in downtown Trenton.

4 A-2145-15T2
written it in the wrong place. Additionally "No ride, Annex" was

written on the right side of the document, indicating the inmate

needed to be transported by van. Boseke testified Officer Curtis

Diaz, working in Control Room 3 on January 24, also reviewed the

inmate's paperwork to ensure all information was correct. Boseke

stated he did not review the log book entry from January 24, which

states the inmate was "Turned over to the Street."

Styles was a transportation officer on January 24, 2011.

Styles transported four discharges, including the inmate in

question, to downtown Trenton to be dropped off and her way back,

she received a phone call from petitioner advising the inmate

needed to be returned to the correctional facility. Her partner,

Officer Gary Vannozzi, turned their vehicle around and they spotted

the inmate walking. When they called out to the inmate asking him

to come back to the van, the inmate shook his head no and began

to run. A Trenton Police car was in a nearby parking lot and

after Styles ran over to explain the situation, the officer got

on their radio and Trenton Police apprehended the inmate.

Styles testified the inmate was on the street for about ten

minutes. Styles and Vannozzi returned the inmate to the

correctional facility, where petitioner told Styles, "[i]t was a

mistake, mistakes happen."

5 A-2145-15T2
 Lieutenant Farah Fioravanti, a Mercer County corrections

officer, authored an investigation report about the January 24

incident. As part of her investigation, Fioravanti interviewed

petitioner, Boseke, Officers Jeffrey Lane, Steven Rinz Diaz,

Styles, and Vannozzi. According to Fioravanti, petitioner

admitted he wrote "No ride, Annex" on the discharge paperwork and

only became aware he mistakenly discharged the inmate when the

Plainsboro Police Department arrived to pick him up.

Fioravanti concluded petitioner violated Standard Operating

Procedure (SOP) 210: "Post Orders - Sergeant (General)." SOP 210

D.2. provides: "'R&D' Sergeant includes management and supervision

of Detention Floor, Property Storage, Control Room 3, and the

receiving and discharge of inmates. The R&D Sergeant is required

to coordinate efforts closely with the Classification/Records

Lieutenant." Fioravanti rejected petitioner's allegation someone

altered or switched the discharge paperwork after the inmate had

left.

Petitioner's internal affairs statement recounted the

discharge paperwork he received showed the inmate was to be

released to the street; though he reported, "it was possible" he

overlooked the fact the discharge paperwork said "Turn over to

Plainsboro Township." In his statement, petitioner recounted he

did not see the inmate's active charge in the computer system

6 A-2145-15T2
until after the inmate was discharged and in the transportation

van.

Lane, a property officer at the correctional facility

reviewed the inmate's discharge paperwork and did not notice the

inmate was supposed to be discharged to Plainsboro Police

Department but he could not rule out the discharge paperwork did

say, "Discharge to Plainsboro."

Diaz was working as the Control Room 3 officer on January 24,

2011. Diaz testified as R&D receives discharge paperwork for

various inmates, he would check their picture cards to verify the

correct inmate was being discharged, as well as check their jail

number. Diaz did not notice the inmate was supposed to be turned

over to the Plainsboro Police Department. Petitioner was Diaz's

supervisor on January 24, 2011.

Petitioner testified he learned the inmate was mistakenly

discharged when the Plainsboro police arrived to pick up the

inmate. According to petitioner, he asked Diaz for the inmate's

discharge paperwork, which then had "Plainsboro" written on it.

Petitioner testified the discharge paperwork Diaz handed him was

not the original paperwork he saw for the inmate and it now

included a body receipt not attached previously. On cross-

examination, petitioner acknowledged he never attempted to locate

the original discharge paperwork. He also testified he wrote "No

7 A-2145-15T2
ride, Annex" on the discharge paperwork and the discharge paperwork

from Diaz said the same thing. The only difference between what

petitioner saw originally and what he received from Diaz was the

body receipt.

Following the testimony, the administrative law judge (ALJ)

issued his initial decision on November 5, 2015, finding the County

established, by a preponderance of the evidence, petitioner

violated the rules and regulations charged in the final notice of

disciplinary action, except N.J.A.C. 4A:2-2.3(a)(12), "[o]ther

[s]ufficient [c]ause - (c) neglect of duty, loafing, idleness or

willful failure to devote attention to tasks which would result

in danger to persons or property." The ALJ concluded the ten-day

working suspension was appropriate.

Petitioner filed exceptions with the Commission, and on

December 17, 2015, the Commission issued its final administrative

action accepting and adopting the ALJ's findings of fact and

conclusions. This appeal followed.

Petitioner argues the Commission's findings are arbitrary,

capricious, and unreasonable, as the County failed to establish

by a preponderance of the evidence the charges cited against him

in the final notice of disciplinary action. We disagree.

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

ordinarily will reverse the decision of an administrative agency

8 A-2145-15T2
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

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)).

Petitioner argues the County did not meet its burden of proof

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

employee, as he acted reasonably and in good faith in relying upon

the discharge paperwork he was provided.

Conduct unbecoming an officer has been defined as "any conduct

which adversely affects the morale or efficiency of the

[correctional facility] . . . which has a tendency to destroy

public respect for municipal employees and confidence in the

9 A-2145-15T2
operation of municipal services." In re Emmons, 63 N.J. Super.

136, 140 (App. Div. 1960) (quoting In re Zeber, 156 A.2d 821, 825

(Pa. 1959)). The conduct in question can be sufficient if it is

"such as to offend publicly accepted standards of decency." Karins

v. City of Atl. City, 152 N.J. 532, 554 (1998) (quoting Zeber,

supra, 156 A.2d at 825).

Petitioner argues he relied in good faith on the "No ride,

Annex" note on the discharge paperwork and believed the inmate was

to be transported to the street. However, at the hearing,

petitioner admitted he wrote "No ride, Annex" on the paperwork.

Petitioner could not have relied in good faith on the paperwork

if he was the one who wrote the note. Additionally, the ALJ did

not find petitioner's testimony credible. Based upon our deference

to the ALJ's credibility determination, see Clowes, supra, 109

N.J. at 587, along with the testimony of the other individuals on

duty on January 24, 2011, we are satisfied the County met its

burden of proof as to a charge of N.J.A.C. 4A:2-2.3(a)(6).

Petitioner argues the County did not meet its burden of proof

as to N.J.A.C. 4A:2-2.3(a)(7), neglect of duty. There is

sufficient evidence in the record to establish petitioner

neglected the performance of his assigned job duties, namely

ensuring the inmate was properly turned over to the Plainsboro

Police Department per his discharge paperwork. See e.g., In re

10 A-2145-15T2
Carter, 191 N.J. 474 (2007) (neglect of duty found where a police

officer fell asleep while on duty). The evidence in the record

supports the Commission's finding petitioner's actions on January

24, 2011 constituted neglect of duty.

Petitioner also argues the County did not meet its burden of

proof for the charge of other sufficient cause, N.J.A.C. 4A:2-

2.3(a)(12), by violating SOP 210. Petitioner argues he exercised

due diligence but was misled by errors in the discharge paperwork

written by others. However, petitioner admitted during testimony

the error was his own notation. His assertion the discharge

paperwork was switched from the time he initially reviewed the

paperwork to when he learned of the mistake is unsupported by the

record. Petitioner was the sergeant in charge of the R&D unit on

January 24, and was therefore responsible to ensure correct

discharge paperwork. SOP 210 D.2 states, "'R&D' Sergeant includes

management and supervision of Detention Floor, Property Storage,

Control Room 3, and the receiving and discharge of inmates. The

R&D Sergeant is required to coordinate efforts closely with the

Classification/Records Lieutenant." Sufficient evidence in the

record supports the ALJ's determination petitioner fell short of

his job requirements per SOP 210, when he discharged the inmate

meant to be transferred to a police department, therefore

satisfying a charge under N.J.A.C. 4A:2-2.3(a)(12).

11 A-2145-15T2
 After careful review of the record, we do not consider the

Commission's decision to adopt the ALJ's findings of fact and

conclusions arbitrary, capricious, or unreasonable.

As to the penalty, we find the ten-day working suspension to

be consistent with our case law. In Carter, the New Jersey Supreme

Court discussed progressive discipline for an officer who was

fired for sleeping on duty. Carter, supra, 191 N.J. at 482. The

Court found "some disciplinary infractions are so serious that

removal is appropriate notwithstanding a largely unblemished prior

record." Id. at 484. Reviewing sanctions imposed as a consequence

of disciplinary action, we ask, "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.'" In

re Polk License Revocation, 90 N.J. 550, 578 (1982) (quoting Pell

v. Bd. of Educ., 313 N.E.2d 321, 356 (N.Y. 1974)). Additionally,

"[i]n matters involving discipline of police and corrections

officers, public safety concerns may also bear upon the propriety

of the . . . sanction." Carter, supra, 191 N.J. at 485. We do

not substitute our "own views of whether a particular penalty is

correct for those of the body charged with making that decision."

Id. at 486.

Viewing the record in light of our Supreme Court's discussion

in Carter, we do not consider the ten-day suspension to be

12 A-2145-15T2
disproportionate because of the public safety concerns. Here, an

inmate was released to the streets of Trenton and when the

transportation team was notified of the mistake, the inmate began

running from the officers. That the inmate was able to be

recaptured and returned to the correctional facility without

incident does not diminish the potential risk to the community.

We find no error in the Commission's final administrative action

upholding the ten-day suspension.

Affirmed.

13 A-2145-15T2