SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO . A

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IN THE MATTER OF CAROL FOX, BOROUGH OF KEYPORT POLICE DEPARTMENT.

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Submitted June 4, 2019

– Decided August 8, 2019 Before Judge Hoffman and Geiger. On appeal from the New Jersey Civil Service Commission, Docket No. 2018

- 1033.
Di F rancesco Bateman Kunzman Davis Lehrer & Flaum, PC, attorneys for appellant Carol Fox (Richard P aul Flaum and Robert P hilip Manetta, on the briefs).
Mc Manimon Scotland & Baumann LLC, attorneys for respondent Borough o f Keyport Police Department (Leslie G. London and T haddeus John Del Guercio, on the brief). Gurbir S. Grewal, Attorney General, attorney for respondent Civil Service Commission ( George N orman Cohen, Deputy Attorne y General, on the statement in l ieu 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PER CURIAM NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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

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Carol Fox appeals from a final determination of the Civil Service Commission (Commission) terminating her position as a communications officer / dispatcher (dispatcher) with the Borough of Keyport Police Department (department) for leaving her dispatch post prior to her relief arriving, in violation of specific rules and department policies and practices. The Commission adopted the decision of the Administrative Law Judge (ALJ). We affirm. Because ALJ Sarah G. Crowley comprehensively detailed the relevant factual and procedural history in her written opinion, we briefly recount those facts necessary to provide context for our decision. Fox was a dispatcher with the department for thirteen years. The duties of the dispatchers are to answer the telephone and dispatch police and fire departments to emergencies. Dispatchers also log every fifteen minutes what a prisoner is doing if there is a prisoner in the holding cell. It is undisputed that Fox left her post on July 26, 2017 prior to being relieved, leaving a prisoner and the emergency phone desk unattended. Prior to leaving, the rules require dispatc her s to wait for their relief and then provide an update on any developments that occurred during their twelve

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On August 29, 201 7 , Fox was served a Preliminary Notice of Disciplinary Action (PNDA) and was suspended with pay pending a Louderm ill 1 hearing for incompetency, inefficiency or failure to perform duties, chronic or excessive absenteeism or lateness, neglect of duty, and other sufficient causes in violation of N.J.A.C. 4A:2

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. A week later, Fox participated in a Loudermill hearing before the Keyport Borough Council. The borough administrator issued a Final Notice of Disciplinary Action (FNDA) on September 20, 2017 , imposing the penalty of removal and termination, effective immediately. Fox appealed her termination
and the matter was transferred to the Office of Administrative L aw (OAL) as a contested case. The ALJ presided over a one

- day hearing. She considered testimony from seven witnesses , including Fox. In her written decision, the ALJ stated that Fox testified : She is familiar with the rules and regulations governing

the department with respect to the job duties. . . . [Dispatchers] are required to fill in the log sheet with anything that happens. [Fox] was working . . . on July 26, 2017. Her shift ended at 6: 30 a.m. and [officers] Dixon, Salvatore, McCartin, and Hassmiller were in the office. She stopped and said goodbye to them and left. She never asked who was relieving her, and did not seek

1 Cleveland Bd. of Educ. v. Loudermill , 470 U.S. 532, 546 (1985).4 A

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2017." The ALJ determined the "fact that she stopped and said good[]bye to everyone, including her supervisor does not relieve[] her of the obligation of waiting for relief before leaving her post." The ALJ conc luded that Fox's conduct was "in violation of the rules and regulations and engaged in incompetency, inefficiency, neglect of duty and other sufficient cause." The ALJ then determined that "the penalty of removal is appropriate given the egregious natur e of the offense of just leaving an important post without securing relief, which could have resulted in life threatening consequence for5 A

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the public trying to call in an emergency and the prisoner who was left without supervision." In reaching this penalt y, the ALJ cited several aggravating factors:

One factor is that [Fox] continued to try to justify leaving her post by claiming she said good[]bye first and that it was a "one time" oversight. [ Fox's seven] prior offenses of neglect of duty and/or incomp etency are further aggravat [ing] factors. In considering the former charges against Fox for incompetency, ine fficiency and neglect of duty in her analysis, the ALJ reasoned that an employee's "past record may be considered when determining the appropriate penalty for the current offense." (quoting In re Phillips , 11 N.J. 567, 581 (1990)). On April 6, 2018, the Commission adopted the ALJ's findings of fact and conclusions of law. On appeal, Fox contends the decision of the Commission to terminate her was arbitrary, capricious, and not reasonably proportional to the offense. We disagree. Appellate review of an administrative agency decision is limited. In re
Herrmann , 192 N.J. 19, 27 (2007). A strong presumption of reasonableness attaches to the Co mmission's decision. In re Carroll , 339 N.J. Super. 429, 437 (App. Div. 2001). Appellant has the burden to demonstrate grounds for reversal. McGowan v. N.J. State Parole Bd. , 347 N.J. Super. 544, 563 (App. Div. 2002).6 A

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Appellate courts generally defer t o final agency actions, only "reversing those actions if they are 'arbitrary, capricious or unreasonable or [if the action] is not supported by substantial credible evidence in the record as a whole.'" N.J. Soc'y for the Prevention of Cruelty to Animals v . N.J. Dep't of Agric. , 196 N.J. 366, 384

- 85 (2008) (quoting Henry v. Rahway State Prison , 81 N.J. 571, 579

- 80 (1 980) (alteration in original)). Under the arbitrary, capricious, and unreasonable standard, our scope of review is guided by three major inqui ries: (1) whether the agency's decision conforms with the relevant law; (2) whether the decision is supported by substantial credible evidence in the record; and (3) whether in applying the law to the facts, the administrative agency clearly erred in reach ing its conclusion. In re Stallworth , 208 N.J. 182, 194 (2011). When an agency decision satisfies such criteria, we accord substantial deference to the agency's fact

- finding and legal conclusions, acknowledging the agency's "expertise and superior knowledge of a particular field." Circus Liquors, Inc. v. Governing Body of Middletown Twp. , 199 N.J. 1, 10 (2009) (quoting Greenwood v. State Police Training Ctr. , 127 N.J. 500, 513 (1992)). We will not substitute our judgment for the agency's even thou gh we might have reached a different conclusion. Stallworth , 208 N.J. at 194; see also In re Taylor , 158 N.J. 644, 656 (1999).7 A

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Our deference to agency decisions "applies to the review of disciplinary sanctions as well." Herrmann , 192 N.J. at 28. "In li ght 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 (quoting In re Polk , 90 N.J. 550, 578 (1982)). Having considered Fox's arguments in light of the record on appeal and our limited standard of review, we affirm the Commission's final determination substantially for the reasons expressed by th e ALJ. The Commission's final determination is supported by sufficient credible evidence on the record as a whole. R. 2:11

- 3(e)(1)(D). Fox's arguments are without sufficient merit to warrant further discussion. R. 2:11

- 3(e)(1)(E). Affirmed.