SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO . A

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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 Cou nsel , 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Commission ' s (Commission) final agency decision finding the Camden NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not " constitute precedent or be binding upon any court

. "
A lthough 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

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County Department of Corrections (CCDC) 1 properly removed

appellant from her position as a county corrections officer for

in subordination , conduct unbecoming a public employee , neglect of

duty , and other sufficient cause including violations of C CDC ' s

rules and regulations. We reject appellant ' s argument that the

sanction of removal was excessive , and affirm

.

I.

CCDC hired appe llant 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 C CDC ' s

internal affairs unit discovered numerou s 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 t ook 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 kn owing 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.3 A

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to the hospital while on duty , and that doing so constituted a

breach of security.

On January 26 , 2015 , C CDC 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 CC DC policies and rules.

Following a departmental hearing , the CC DC removed appellant

effective June 29 , 2015.

Appellant appealed , and the Commis s ion referred t he matter

t o the Office of Administrative Law. A hearing was conduct ed 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 fin al

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.4 A

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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 (quot ing 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 ' the5 A

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cou rt ' 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 ,

5 79

- 80 (1980)). To determine whether an agency action i s 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 Cart er , 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).6 A

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Applying these principles , we are satisfied there is no basis

to reverse the Commission ' s de cision sustaining appellant ' s

removal. She contends that removal is e xcessiv e 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 w hat she did was wrong , it was

not sufficiently egregious to warrant her removal.

The concept of progressive discipline has been employed in

two way s : " (1) to ' ratchet

- up ' or ' support imposition of a more

severe penalty for a public employee who engages in habitual

misconduct '; and (2) ' to mitigat e 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 fo llowed 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 33.7 A

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Here , a ppellant engaged in a n ongoing , knowing , and

intentional violation of the CCDC ' s rules while on du ty , which ,
as the ALJ recognized , " compromised the security and functioning

of the correctional facility , [and] jeopardized the safe ty of

fellow staff members. " While on duty , s he also photographed a

partially naked fellow officer without his kno wledge 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 , t he record shows appellant received formal

d iscipline seventeen times for offenses including neglect of duty ,
abuse of position , conduct unbecoming a public employee , and

insubordinatio n . She received two verbal reprimands , three

reprimands , five " day fine(s) ," and eight separate suspensions of

between two and ninety days. Thus , t he 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.