SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5566-18T2

IN THE MATTER OF

MAURICE JACKSON,

MERCER COUNTY

CORRECTIONS CENTER.

____________________________

Submitted January 6, 2021 – Decided

Before Judges Whipple and Firko.

On appeal from the New Jersey Civil Service 

Commission, Docket No. 2018-2491.

Alterman & Associates, LLC, attorneys for petitioner

(Stuart J. Alterman and Timothy J. Prol, on the briefs).

Paul R. Adezio, Mercer County Counsel, attorney for 

respondent Mercer County Corrections Center (Lynn 

Suzette Price, Assistant County Counsel, on the brief).

Gurbir S. Grewal, Attorney General, attorney for 

respondent New Jersey Civil Service Commission 

(Jonathan S. Sussman, Deputy Attorney General, on the 

statement in lieu of brief).

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE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.

January 25, 2021
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Petitioner Maurice Jackson appeals from a June 26, 2019 final 

administration action of the Civil Service Commission (Commission) upholding 

his fifty-day suspension. We affirm.

We discern the following from the hearing record. Petitioner worked for 

the Mercer County Corrections Center (MCCC) as a corrections officer. On 

October 24, 2017, petitioner was assigned to control room two (CR2), which 

serves as a communications link and controls traffic to and from the units. CR2 

is the base of operations for the issuance of equipment, keys, and paperwork. 

Petitioner was responsible for monitoring activities within the jail during the 

overnight shift and ensuring "everything was running normally." Part of his 

responsibilities included reviewing monitors and operating the control panel that 

opens the cell doors to two pods within MCCC, A pod and B pod.

On that date, another corrections officer, Sergeant Kenneth Fitzpatrick, 

was "doing rounds" through A pod, B pod, medical, and APC units to ensure the 

safety and security of all officers and inmates. During these rounds, Sergeant 

Fitzpatrick approached door A35, which leads to MCCC's maximum security 

unit and is controlled by the panel in CR2. Sergeant Fitzpatrick requested over 

the radio that the door be opened by petitioner, but the request went unanswered. 
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A second call was made to CR2 to alert petitioner that Sergeant Fitzpatrick was 

at the door.

After multiple radio calls went unanswered, Captain Michael Kownacki, 

the shift commander for the 11:00 p.m. to 7:00 a.m. shift, adjusted the monitor 

in the master control room to ascertain why the door was not being opened. 

Captain Kownacki then observed petitioner "seated in the chair with his back 

facing the camera." Petitioner was eventually aroused by a phone call or a radio 

transmission from another officer and reached for the control panel to open the 

door. Because petitioner did not respond to the radio calls to open the door, he 

was relieved from his post for the remainder of his shift, and an incident report 

was prepared. Petitioner claimed he did not hear the transmission because his 

radio was not on an appropriate listening level because he had used the speaker 

phone and forgot to reset the volume.

On November 14, 2017, the MCCC issued a Preliminary Notice of 

Disciplinary Action (PNDA) to petitioner setting forth charges arising from his 

failure to respond to the radio calls to open door A35. The PNDA charged 

petitioner with conduct unbecoming a public employee, N.J.A.C. 4A:2-

2.3(a)(6); neglect of duty, N.J.A.C. 4A:2-2.3(a)(7); and other sufficient cause, 
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N.J.A.C. 4A:2-2(a)(12), for sleeping while on duty, in violation of the Mercer 

County Public Safety Table of Offenses and Penalties.

On January 25, 2018, the MCCC held a departmental disciplinary hearing 

sustaining the charges. On February 16, 2018, the MCCC issued a Final Notice 

of Disciplinary Action (FNDA) sustaining all charges listed in the PNDA and 

proposed a fifty-day working suspension penalty. Petitioner appealed the 

determination to the Commission, which transmitted the appeal to the Office of 

Administrative Law (OAL) to be heard as a contested case pursuant to N.J.S.A. 

40A:14-202(d).

The OAL heard the matter on February 13, 2019. The MCCC presented 

the testimony of Captain Kownacki, the shift commander on the day in question, 

Sergeant Fitzpatrick, who placed the calls to open door A35, and Phyllis Oliver, 

the retired Deputy Warden of MCCC. Oliver testified she reviewed the video 

of the incident, and it appeared petitioner was asleep during his shift. Petitioner 

testified on his own behalf. The AOL allowed the parties to file post-hearing 

submissions until May 15, 2019.

After reviewing the evidence, the Administrative Law Judge (ALJ) issued 

a twenty-three-page initial decision sustaining all charges against petitioner. 
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The ALJ found petitioner's testimony was inconsistent, incredulous, and selfserving stating:

This account of events . . . runs contrary to 

[petitioner's] testimony that, when working the "A 

Shift" or overnight shift, noise can travel from the 

control room and into the living units of MCCC. 

[Petitioner] explained that he turns the volume on his 

radio down so the sound . . . does not carry into the pods 

where it can awaken the inmates who should be asleep 

during this time. . . . In light of this practical motivation 

to minimize unnecessary noise when working in the 

control room during an overnight shift, it would further 

seem to reason, however, that if the [petitioner] needed 

to make or receive phone calls during that shift, he 

would avoid using the speaker phone since that would 

presumably generate the same type of conversational 

noise he was trying to avoid by keeping his radio at a 

low level.

After reviewing the surveillance video, the ALJ determined:

[Petitioner] was asleep in his chair on duty at MCCC 

on October 24, 2017, from approximately 3:15 a.m. 

until approximately 3:26 a.m. During this period, the 

[petitioner] can be observed in the surveillance video 

. . . sitting in his chair, not moving with his head 

noticeably tilting towards, and possibly resting on, his 

left shoulder. The [petitioner] does not change his 

position during this time to give himself a field of view 

of the monitor that is positioned behind his left shoulder 

and, despite the [petitioner's] testimony that he could 

see the monitor from where he was seated, the monitor 

and its contents were outside his field of vision from 

where he was seated as his head can be observed to be 

facing away from the monitor during this time.
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The ALJ concluded that the MCCC had proven that the charges were supported 

by the evidence. Petitioner appealed the matter to the Commission. On July 31, 

2019, the Commission, after conducting its review and making an independent 

evaluation, affirmed the charges and dismissed petitioner's appeal. This appeal

followed.

Petitioner has raised three points but essentially argues that the 

Commission's decision was "arbitrary, capricious and unreasonable" because it 

was based on the ALJ's factual findings and credibility determinations, which 

were not supported by substantial credible evidence and upheld a penalty that 

was "unwarranted," "excessive," and "contrary to the principles of progressive 

discipline." In addition, petitioner asserts the Commission erred as a matter of 

law by finding the MCCC satisfied its burden of proof because the evidence was 

in "equipoise." We reject these arguments.

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. Dept. 

of Corr., 382 N.J. Super. 18, 23 (App. Div. 2005) (quoting Henry v. Rahway 

State Prison, 81 N.J. 571, 579-80 (1980)). "[A]n administrative agency's 
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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); Henry, 81 N.J. at 579-80). Additionally, a 

presumption of reasonableness attaches to the actions of administrative 

agencies. City of Newark v. Nat. Res. Council in Dep't of Env'tl Prot., 82 N.J. 

530, 539-40 (1980). We defer to the expertise of agencies where substantial 

evidence supports the agency's determination. In re Stallworth, 208 N.J. 182, 

194 (2011). Accordingly, the findings of the agency should not be reversed 

because they are based on "sufficient, competent, and credible evidence." 

N.J.S.A. 52:14B-10(c).

Moreover, we "defer to [the ALJ's] credibility findings that are often 

influenced by matters such as observations of the character and demeanor of 

witnesses and common human experience that are not transmitted by the 
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record," State v. Locurto, 157 N.J. 463, 474 (1999) (citing State v. Jamerson, 

153 N.J. 318, 341 (1998); Dolson v. Anastasia, 55 N.J. 2, 7 (1969); State v. 

Johnson, 42 N.J. 146, 161 (1964)), giving "due regard to the opportunity of the 

one who heard the witnesses to judge their credibility." Logan v. Bd. of Rev., 

299 N.J. Super. 346, 348 (App. Div. 1997) (citing Jackson v. Concord Co., 54 

N.J. 113, 117-18 (1969)).

Petitioner argues that the record does not support the charge of conduct 

unbecoming a public employee, and the MCCC did not meet its burden of proof 

as to N.J.A.C. 4A:2-2.3(a)(6). Rather, petitioner highlights that: (1) "[n]one of 

the witnesses saw [him] sleeping"; (2) the door was opened after he answered 

the phone; (3) video footage showed him moving at various points during his 

shift; (4) his eyes were not visible on the video, making it difficult to determine 

whether he was sleeping; (5) he made a log detailing activities he undertook 

during his shift; and (6) he testified that he was awake. We reject petitioner's 

argument.

Conduct unbecoming refers to "any conduct which adversely affects the 

morale or efficiency of the bureau . . . [or] which has a tendency to destroy 

public respect for municipal services." Karins v. Atl. City, 152 N.J. 532, 554 

(1998) (quoting In re Emmons, 63 N.J. Super. 136, 140 (App. Div. 1960) 
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(quoting In re Zeber, 156 A.2d 821, 825 (1959))). The conduct in question can 

be sufficient if it is "'such as to offend publicly accepted standards of decency.'" 

Id. at 555 (quoting In re Zeber, 156 A.2d at 825).

Discussing conduct unbecoming an officer, we have 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." In re Emmons, 63 N.J. 

Super. at 140 (citing Asbury Park v. Dep't of Civ. 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. (quoting In re Zeber, 156 A.2d at 

825). The agency's finding that petitioner was asleep is supported by substantial 

evidence in the record, thus the ALJ's determination that petitioner's violations 

constituted conduct unbecoming an officer is not arbitrary, capricious or 

unreasonable.

We also emphasize that adherence to order and procedure in prisons is 

critical, and violating protocol has the potential to subvert order, which can 

easily escalate in such a highly charged environment. Bowden v. Bayside State 
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Prison Dept. of Corr., 268 N.J. Super. 301, 306 (App. Div. 1993); see also

Henry, 81 N.J. at 579 ("Maintaining discipline within law enforcement agencies 

is important for the safety and security of the public.").

Finally, we address petitioner's argument that the seriousness of the 

incident does not warrant a fifty-day suspension. He also contends the 

suspension is contrary to the principles of progressive discipline. Again, we 

disagree.

"A reviewing court should alter a sanction imposed by an administrative 

agency only 'when necessary to bring the agency's action into conformity with 

its delegated authority.'" In re Herrmann, 192 N.J. 19, 28 (2007) (quoting In re 

Polk, 90 N.J. 550, 578 (1982)). A reviewing court "has no power to act 

independently as an administrative tribunal or to substitute its judgment for that 

of the agency." Ibid. (quoting Polk, 90 N.J. at 578). When reviewing an 

agency's disciplinary action, we consider "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 (quoting Polk, 90 N.J. at 578).

Under the concept of progressive discipline, "discipline based in part on 

the consideration of past misconduct can be a factor in the determination of the 

appropriate penalty for present misconduct." Hermann, 192 N.J. at 29. This 
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concept is utilized in two ways. "[P]rinciples of progressive discipline can 

support the imposition of a more severe penalty for a public employee who 

engages in habitual misconduct." Id. at 31. On the other hand, progressive 

discipline has been used "to mitigate the penalty for a current offense." Id. at 

33. In other words, progressive discipline can result in the downgrading of a 

penalty when an employee "has a substantial record of employment that is 

largely or totally unblemished by significant disciplinary infractions." Ibid.

Progressive discipline, however, is not "a fixed and immutable rule to be 

followed without question." In re Carter, 191 N.J. 474, 484 (2007). 

"[P]rogressive discipline is not a necessary consideration when reviewing an 

agency['s] . . . 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, or when application of the principle would be contrary to the public 

interest." Hermann, 19 N.J. at 33. It can be bypassed "when the employee's 

position involves public safety and the misconduct causes risk of harm to 

persons or property." Ibid.

Because corrections officers are "empowered to exercise full police 

powers," N.J.S.A. 2A:154-4, they represent "law and order to the citizenry and 

must present an image of personal integrity and dependability in order to have 
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the respect of the public." In re Phillips, 117 N.J. 567, 576 (1990) (quoting Twp. 

of Moorestown v. Armstrong, 89 N.J. Super. 560, 566 (App. Div. 1965)); see 

also Bowden, 268 N.J. Super. at 305-06 (noting the great importance of 

maintaining order and discipline within a prison). Therefore, "[i]n matters 

involving the discipline of police and corrections officers, public safety 

concerns may also bear upon the propriety of the . . . sanction." Carter, 191 N.J. 

at 485.

Viewing the record in light of our Supreme Court's decision in Carter, we 

do not consider the fifty-day suspension to be disproportionate because of public 

safety concerns. We reject the argument that the suspension was arbitrary, 

capricious, and unreasonable.

We conclude that sufficient, competent, and credible evidence in the 

record supports the Commission's final disciplinary action. Under our standard 

of review, we see no basis to interfere with that determination. Any additional 

arguments raised in petitioner's submissions that have not been specifically 

addressed were found to lack sufficient merit to warrant discussion in a written 

opinion. R. 2:11-3(e)(1)(E). 

Affirmed.