SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION DOCKET NO. A-3663- 21 IN THE MATTER OF R.B., GARDEN STATE YOUTH CORRECTIONAL FACILITY, DEPARTMENT OF CORRECTIONS.

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Argued December 4, 2023

– Decided March 8, 2024 Before Judges DeAlmeida and Bishop-Thompson. On appeal from the New Jersey Civil Service Commission, Docket No. 2020

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. Samuel Michael Gaylord argued the cause for appella nt R.B. (Szaferman Lakind Blumstein & Blader, PC , attorneys; Samuel Michael Gaylord , on the brief). Eric Alexander Zimmerman, Deputy Attorney General, argued the cause for respondents New Jersey Department of Corrections and Garden State Youth Correctional Facility (Matthew J. Platkin, Attorney General, attorney; Sara M. Gregory, Assistant Attor ney General, of counsel; Eric Alexander Zimmerman, on the brief). Matthew J. Platkin, Attorney General, attorney for respondent New Jersey 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court.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 parti es in the case and its use in other cases is limite d. R. 1:36- 3.2 A- 3663

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PER CURIAM Appellant R.B. 1 appeals from a July 31, 2022 final administrative decision by the Civil Service Commission (CSC) terminating R .B.'s employment as a senior correctional police officer with the New Jer sey Department of Corrections (DOC). We affirm.

I. R.B. was hired by the DOC in 2013 and was assigned to the Garden State Youth Facility. In October 2018, R.B. was arrested for a domestic violence incident (2018 incident) involving his longtime gir lfriend, T.T. A temporary restraining order (TRO) was entered, and criminal c harges were filed. Both the TRO and the criminal charges were subsequently dism issed. The DOC did not impose any disciplinary action. On August 28, 2019, Mount Laurel Police Department (MLPD) officers were called to R.B.'s apartment in the early mornin g hours concerning a domestic dispute (2019 incident) between R.B. and T .T. The parties' versions

of the incident differed. When the officers arrive d, R.B. was standing outside

1 We use initials to protect the parties' privacy. R. 1:38 -3(d)(9) to (10).3 A- 3663

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on the sidewalk. He stated that he had an "alterca tion" with T.T. when she was late getting home from work. According to R.B., T. T. became "agitated" and "yelled" at him on the phone when she told him that she had a flat tire and was waiting for roadside assistance. When she arrived at home, she "yelled" that R.B. did not believe her, and she started breaking household items. R.B. claimed that he tried to leave the apartment and called pol ice. However, when the officers interviewed T.T., she e xplained that an argument happened when she arrived at the apartment. Ac cording to T.T., R.B. placed both his hands around her neck and held her down on the bed. She was able to free herself, but R.B. again grabbed her ne ck with both hands and held her against the wall. T.T. stated that her breathi ng was restricted. She also stated that R.B. "threw" her into the television, r esulting in a broken cable box. The officers saw visible signs of injury to T.T.'s neck and elbow. T.T. stated that R.B. had torn necklaces off her neck during th e altercation, which were found by the officers in the hallway. R.B. was arrested and charged with third-degree aggrava ted assault under N.J.S.A. 2C:12-1(b)(13). T.T. applied for and was granted a TRO, which was later dismissed. T.T. later gave a signed and nota rized statement to the MLPD recanting her prior testimony and instead claimed t hat she "[did] not remember4 A- 3663

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how the items in the home were broken." The criminal charge was downgraded to simple assault and subsequently dismissed. The next day, on August 29, 2019, the DOC issued a Preliminary Notice of Disciplinary Action (PNDA), specifying the domes tic violence incident demonstrated conduct unbecoming and violated the DO C's rules and regulations

. R.B. was charged with (1) conduct unbecoming a publ ic employee under N.J.A.C. 4A:2-2.3(a)(6); (2) other sufficient cause under N.J.A.C. 4A:2- 2.2(a)(12); (3) Human Resources Bulletin 84-17, as amended, C-11, conduct unbecoming of an employee; and (4) Human Resources Bulletin 84-17, as amended, E-1 violation of rule, regulation, policy, procedure, or administrative

decision. R.B. was suspended and removal from employment was recommended. Following a pretermination hearing, R.B.'s suspensi on without pay was continued based on the "severity of the charges" an d the "direct impact" of the charges on Bennett's position as a law enforcement officer. In February 2020, the DOC held a disciplinary hear ing. After considering the testimony and documentary evidence from DOC and R.B., the hearing officer determined the penalty of removal was appro priate. On March 13, 2020, the DOC issued a Final Notice of Disciplinary Actio n (FNDA), removing R.B.5 A- 3663

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from his position. R.B. appealed the disciplinary action to the CSC, and the

contested matter was transferred to the Office of A dministrative Law (OAL). A two-day hearing was held before the administrati ve law judge (ALJ). The DOC presented testimony from the following thre e witnesses: Maria Jackson, Brian Darcy, and Matthew Jankaitis. Jacks on, an investigator in the DOC's Special Investigations Division (SID), testif ied that she conducted the investigation into the 2019 incident and concluded R.B. was the initial aggressor. R.B. had been placed in a "weapon's res tricted post" because of the TRO and criminal charges associated with the 2019 I ncident. She also testified that R.B. did not have a state-issued weapon in con nection with his employment. However, he owned an off-duty weapon that had been confiscated by the prosecutor's office because of the 2018 domestic vi olence incident. T.T. did not respond to Jackson's request for an interview. Darcy, a DOC administrative lieutenant, testified that he was shift

commander on the date of the 2019 incident. After he received notification from the MLPD regarding the domestic dispute, he notifie d SID and the DOC's information clearinghouse. Darcy then explained th at "correctional officers are required to conduct themselves in a professional ma nner both on and off duty and they are not to act in a way that betrays the p ublic trust." He highlighted6 A- 3663

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Sections 2 and 3 of the DOC rules and regulations t hat prohibit correctional officers from engaging in threatening or assaultive conduct. Darcy stated R.B.'s actions also violated Article 1, Section 2 of the D OC's rules and regulations because by breaking the law, he violated the public 's trust. MLPD Officer Jankaitis testified regarding the 201 9 incident. He stated the dispute was a "must arrest" situation based upo n his observations at the scene, which was confirmed by the photographs. R.B. testified concerning the 2019 incident. He s tated T.T. was late getting home, and he had called her at approximatel y 2:30 a.m. When R.B. called T.T., she said she had a flat tire and was o n the phone with roadside assistance. When T.T. came to the apartment, she " yelled" at him that he did not believe her. R.B. claimed that he attempted to avoid "confrontation," and as he attempted to leave, he was "hit with the lamp." When R.B. ran to the closet to get his uniform, she started to "attack" him using the television, a pot, and "anything she could get her hands on." He then "dr opped everything" and ran outside because "his job was on the line." R.B. cl aim ed T.T. broke the television

stand. He also was unaware as to how T.T.'s neckla ces were on the floor. According to R.B., T.T. was " lying " about the domestic disputes.7 A- 3663

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In regard to the 2018 incident, R.B. testified his personal weapon was confiscated by the Willingboro Police Department as a result of his arrest and the TRO. As of August 2019, R.B.'s personal weapon had not been returned because SID was still conducting an investigation. In a May 4, 2022 written decision, the ALJ upheld R.B.'s removal, concluding the "seriousness of these charges relati ng to the 2019 domestic violence incident warrant[ed] imposition of the pen alty of termination despite [R.B.'s] lack of disciplinary history." The ALJ reasoned that R.B.'s return to the position of a senior correctional police officer "would be contrary to the [DOC's] interest in maintaining the public's trust and conf idence." On June 20, 2022, the CSC issued a final administr ative decision adopting the ALJ's findings of fact and conclusions of law.

II. On appeal, R.B. argues (1) that the DOC failed to s ustain its burden of proof and (2) the CSC's decision that progressive disciplin e was not appropriate was arbitrary and capricious. Our review of quasi-

jud icial agency determinations is limited. Allstars Auto Grp., Inc. v. N.J. Motor Vehicle Comm'n, 234 N .J. 150, 157 (2018) (citing Russo v. Bd. of Trs., Police & Firemen's Ret. Sys., 206 N.J. 14, 27 (2011)). "An8 A- 3663

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agency's determination on the merits will be sustai ned unless there is a clear showing that it is arbitrary, capricious, or unreasonable, or that it lacks fair support in the record." Saccone v. Bd. of Trs., Po lice & Firemen's Ret. Sys. , 219 N.J. 369, 380 (2014) (quoting Russo, 206 N.J. a t 27) (internal quotation marks omitted). We "afford[] a 'strong presumption of reasonablenes s' to an administrative agency's exercise of its statutorily delegated resp onsibilities." Lavezzi v. State , 219 N.J. 163, 171 (2014) (quoting City of Newark v. Nat. Res. Council, Dep't of Env't Prot., 82 N.J. 530, 539 (1980)). That pre sumption is particularly strong when an agency is dealing with specialized matters within its area of expertise. Newark, 82 N.J. at 540. We, therefore, defer to "[ a]n administrative agency' s interpretation of statutes and regulations within i ts implementing and enforcing responsibility . . . ." Wnuck v. N.J. Div. of Motor Vehi cles, 337 N.J. Super. 52, 56 (App. Div. 2001). "A reviewing court 'may not s ubstitute its own judgment for the agency's, even though the court might have reached a different result.'" Blanchard v. N.J. Dep't of Corr., 461 N.J. Super. 2 31, 238-39 (App. Div. 2019) (internal quotation marks omitted) (quoting In re S tallworth, 208 N.J. 182, 194 (2011)). However, if there is "any fair argument" support ing the agency action, it must be affirmed. In re Stormwater Mgmt. Rules, 384 N.J. Super. 451, 465-9 A- 3663

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66 (App. Div. 2006). The party challenging the adm inistrative action bears the burden of making that showing. Lavezzi, 219 N.J. a t 171. Applying those standards to our review of the record and R.B.'s contentions, we affirm substantially for the reason s expressed in the ALJ's initial decision, which were accepted and adopted by the CS C. We add the following

comments. The CSC adopted and agreed with the ALJ's determina tion the "seriousness of these charges relating to the 2019 domestic violence" warranted removal. New Jersey courts have found the phrase "conduct u nbecoming" to be "elastic" and have defined it to include "any condu ct which adversely affects the morale or efficiency of the bureau . . . [or] which has a tendency to destroy public respect for municipal employees and confiden ce in the operation of municipal services." Karins v. City of Atlantic Ci ty, 152 N.J. 532, 554 (1998) (quoting In re Emmons, 63 N.J. Super. 136, 140 (196 0)). Such 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 corre ct." Ibid. (quoting Hartmann v. Police Dep't of Ridgewood, 258 N.J. Super. 32, 4 0 (App. Div. 1992)).10 A- 3663

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Under the theory of progressive discipline, an agen cy is not required to consider progressive discipline in every matter; pr ogressive discipline is not a "fixed and immutable rule to be followed without qu estion." In re Carter, 191 N.J. 474, 484 (2007). Progressive discipline is no t necessary "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 t he public interest." In re

Herrmann , 192 N.J. 19, 33 (2007). As correctly noted by the ALJ , R.B.'s 2019

domestic violence incident was considered a violati on of the implicit standard of good behavior expected of law enforcement office rs. Therefore, we reject R.B.'s contention that the CSC failed to utilize pr ogressive discipline, and we uphold his removal. Consequently, we decline to co nclude the CSC's deci sion was arbitrary, capricious, or unreasonable. To the extent we have not specifically discussed a ny remaining arguments raised by R.B., we conclude they lack sufficient me rit to warrant discussion in a written opinion. R. 2:11 -3(e)(1)(E).

Affirmed.