SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NOS. A-1432-16T4

 A-1434-16T4

IN THE MATTER OF 

ROBERT RANDOLPH,

JUVENILE JUSTICE COMMISSION

_____________________________

Submitted June 6, 2018 – Decided

Before Judges Alvarez, Currier, and Geiger.

On appeal from the New Jersey Civil Service 

Commission, Docket Nos. 2015-3213, 2015-3214,

and 2015-3215.

Charles J. Sciarra argued the cause for 

appellant Robert Randolph (Sciarra & 

Catrambone, LLC, attorneys; (Charles J. 

Sciarra, of counsel; Deborah Masker Edwards, 

on the brief).

Emily M. Bisnauth, Deputy Attorney General, 

argued the cause for respondent New Jersey 

Juvenile Justice Commission (Gurbir S. Grewal, 

Attorney General, attorney; Melissa Dutton 

Schaffer, Assistant Attorney General, of 

counsel; Peter H. Jenkins, Deputy Attorney 

General, on the brief).

Gurbir S. Grewal, Attorney General, attorney

for respondent Civil Service Commission 

(Pamela N. Ullman, Deputy Attorney General, 

on the 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NOT FOR PUBLICATION WITHOUT THE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.

September 5, 2018
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Robert Randolph appeals from an October 21, 2016 final 

determination of the Civil Service Commission (CSC), which upheld 

his demotion to senior parole officer with the Juvenile Justice 

Commission (JJC). For the reasons that follow, we affirm.

The JJC served Randolph with two Final Notices of Disciplinary 

Action (FNDA) sustaining disciplinary charges and demoting him. 

The charges in the first FNDA were conduct unbecoming a public 

employee and misuse of state property, namely, the internet 

connection available at his workplace and his workplace computer. 

N.J.A.C. 4A:2-2.3(a)(6) and (8). The JJC also served him with an 

FNDA sustaining a charge of other sufficient cause defined as 

violation of State policy prohibiting discrimination in the 

workplace, N.J.A.C. 4A:2-2.3(a)(12),1 based on his possession and 

transmission of the materials in question——semi-nude or sexually 

suggestive photographs of women. Randolph appealed, and the 

Division of Appeals and Regulatory Affairs transmitted the matter 

to the Office of Administrative Law under the Administrative 

Procedures Act, N.J.S.A. 52:14B-1 to -15, for hearing under the 

Uniform Administrative Procedure Rules, N.J.A.C. 1:1-1.1 to -21.6. 

 

1 The FNDA charged defendant with N.J.A.C. 4A:2-2.3(a)(11), but 

that "other sufficient cause" has since been recodified as N.J.A.C. 

4A:2-2.3(a)(12).
3 A-1432-16T4

The ALJ issued an initial decision finding that the Agency 

had not met its preponderance of the evidence burden. He relied

mainly on the agency investigator's lack of training on the 

policies related to computer usage and banning discrimination

because the investigator could not produce written copies of the 

policies, and because he drew his conclusions regarding the sexual 

nature of the photographs on Randolph's computer from his personal 

opinion. However, the ALJ did find as a fact that Randolph had

forwarded sexually suggestive photographs (which are included in 

the appendices on this appeal) to six other people, including two 

colleagues. Randolph also forwarded the photographs to a 

subordinate.

On May 21, 2015, the CSC addressed the exceptions filed by 

the JJC and cross-exceptions filed by Randolph in writing, after 

a May 6, 2015 public meeting at which formal action regarding the 

matter was taken.

2 The CSC agreed with the JJC that Randolph had 

violated State policies by transmitting inappropriate emails. 

Specifically, the CSC found that the violation occurred when 

Randolph transmitted a slide show of scantily clad women to 

others——two of whom were colleagues——thus engaging in conduct 

 

2 The JJC filed other charges which were dismissed. Those 

dismissals are neither being appealed nor are they relevant to the 

issues raised in this matter.
4 A-1432-16T4

unbecoming a public employee. The CSC defined such conduct as 

"conduct that adversely affects morale or efficiency or has a 

tendency to destroy public respect for governmental employees and 

confidence in the operation of public services." Furthermore, the 

CSC found that forwarding emails containing "slide shows of 

scantily clad women in sexually suggestive poses" to a subordinate 

constituted a violation of the State's policy against 

discrimination. The CSC also noted that Randolph was an assistant 

district parole supervisor when he engaged in the conduct, and 

thus held to a higher standard. See N.J.A.C. 4A:7-3.1(e). 

Therefore, the CSC affirmed the "appointing authority's" decision 

to demote Randolph to senior parole officer for violating N.J.A.C. 

4A:2-2.3(a)(6) and N.J.A.C. 4A:2-2.3(a)(12).

Randolph filed an unsuccessful motion for reconsideration. 

In its denial, the CSC first addressed Randolph's argument that 

the original decision was untimely. The CSC observed that pursuant 

to N.J.S.A. 52:14B-10(c), a decision may issue beyond the fortyfive day statutory framework so long as the agency obtains an 

extension order from the OAL, which the CSC did. Additionally, 

formal action was taken at a public meeting on May 6, 2015, within 

the forty-five day window. In the opinion of the CSC, the OAL's 

order of extension allowed it to issue a final decision up until 

June 28, 2015. Thus, the May 21 written decision formalizing the 
5 A-1432-16T4

action taken on May 6 was also timely. Therefore, the CSC 

reasoned, the "deemed adopted" language of N.J.S.A. 52:14B-10(c) 

did not apply. This appeal followed.

Randolph raises the following issues for our consideration:

POINT I

THE CIVIL SERVICE COMMISSION'S FINAL 

ADMINISTRATIVE ACTION DENYING RANDOLPH'S 

MOTION FOR RECONSIDERATION WHEREIN IT AFFIRMED 

ITS MAY 21, 2015 DECISION, AFFIRMING THE JJC'S 

DISCIPLINARY ACTIONS AND DEMOTION OF RANDOLPH 

RELATED TO HIS COMPUTER USAGE AND ALLEGED 

DISCRIMINATION AND HARASSMENT IN THE 

WORKPLACE, WAS IN ERROR AND ARBITRARY, 

CAPRICIOUS, UNREASONABLE AND NOT SUPPORTED BY 

THE SUBSTANTIAL CREDIBLE EVIDENCE IN THE 

RECORD.

POINT II

THE CIVIL SERVICE COMMISSION WAS ARBITRARY, 

CAPRICIOUS, AND UNREASONABLE, COMMITTING A 

MATERIAL ERROR IN ISSUING ITS FINAL DECISION, 

AS IT WAS NOT IN COMPLIANCE WITH N.J.S.A. 

40A:14-204.

POINT III

THE CSC'S DECISION WAS ARBITRARY, CAPRICIOUS, 

AND UNREASONABLE AND IT ERRED IN AFFIRMING ITS 

FINAL DECISION AS IT WAS NOT ABIDING BY THE 

POLICY BEHIND THE CIVIL SERVICE ACT IN 

ASSURING DISCIPLINARY MATTERS ARE FAIRLY 

DETERMINED AS IT IS A PRO-MANAGEMENT BOARD.

POINT IV

THE CIVIL SERVICE COMMISSION ACTED ARBITRARY, 

CAPRICIOUS, AND UNREASONABLE ERRING IN FINDING 

THAT RANDOLPH MISUSED PUBLIC PROPERTY AND 

ENGAGED IN CONDUCT UNBECOMING AS ITS DECISION 

WAS NOT SUPPORTED BY THE SUBSTANTIAL CREDIBLE 

EVIDENCE IN THE RECORD.
6 A-1432-16T4

A. As found by the A.L.J., 

Randolph did not violate the 

Administrative Code, misuse the 

State computer, or violate the JJC 

rules and regulations by receiving 

and not opening, without 

solicitation, e-mails that had 

photographs attached alleged to be 

inappropriate.

B. It was arbitrary, capricious, 

unreasonable, and a failure to apply 

the law for Civil Service Commission 

to find Randolph violated the 

Administrative Code and the JJC's 

policies pertaining to a charge that 

Randolph was not given any notice.

POINT V

THE CIVIL SERVICE COMMISSION ERRED IN 

AFFIRMING ITS FINAL DECISION ACTING ARBITRARY, 

CAPRICIOUS, AND UNREASONABLE IN FINDING THAT 

RANDOLPH COMMITTED DISCRIMINATION AND 

HARASSMENT IN THE WORKPLACE AS THIS DECISION 

WAS NOT SUPPORTED BY THE SUBSTANTIAL CREDIBLE 

EVIDENCE IN THE RECORD.

A. As found by the ALJ, Randolph 

did not violate the State Policy 

prohibiting discrimination in the 

workplace by receiving without 

solicitation, and not opening, emails that had photographs alleged 

to be inappropriate.

B. It was a clear material error 

for the CSC to find Randolph had 

committed discrimination in the 

workplace pertaining to a charge 

that he was not given any notice of 

which is arbitrary, unreasonable 

and capricious as there was a 

failure to apply the appropriate 

law.
7 A-1432-16T4

POINT VI

IN THE ALTERNATIVE, IF A VIOLATION IS 

SUBSTANTIATED PROGRESSIVE DISCIPLINE SHOULD 

APPLY.

We first address Point III. This argument is so lacking in 

merit as to not warrant discussion in a written opinion. See R.

2:11-3(e)(1)(E). A numerical review of decisions rendered by the 

CSC in the last two years does not support the proposition that 

the Agency is biased and "pro management," as Randolph alleges.

Also substantially lacking in merit is the contention raised 

in Point II, that the CSC violated the forty-five day timeline 

found in N.J.S.A. 40A:14-204. That section of the statute applies 

to the suspension or termination of law enforcement officers or 

firefighters subject to Title 11A. Randolph is not in that

category. The relevant forty-five-day time period is, as the CSC 

noted, found in N.J.S.A. 52:14B-10(c). 

The CSC rendered its decision on May 6 at a public meeting,

taking formal action rejecting the ALJ's initial decision within 

the time allowed by statute. It subsequently obtained an extension 

order and issued a written decision documenting its prior action 

well within the OAL extension and fifteen days after formal action. 

See Cavalieri v. Bd. of Trs. of Pub. Emps. Ret. Sys., 368 N.J. 

Super. 527, 539 (App. Div. 2004). Thus, the deemed adopted rule 
8 A-1432-16T4

does not apply. The point does not warrant further discussion in 

a written opinion. R. 2:22-3(e)(1)(E).

The remaining alleged errors Randolph raises stem from two 

theories. First, Randolph claims the CSC's decision was arbitrary, 

capricious and unreasonable, and not supported by the substantial 

credible evidence in the record. Second, Randolph contends that 

progressive discipline should have been applied, making the 

demotion improper. 

We only reverse the decision of an administrative agency 

where "arbitrary, capricious, or unreasonable or [] not supported 

by substantial credible evidence in the record as a whole." Henry 

v. Rahway State Prison, 81 N.J. 571, 579-80 (1980); Campbell v. 

Dep't of Civil Serv., 39 N.J. 556, 566 (1963); Town of Belville 

v. Coppola, 187 N.J. Super. 147, 153 (App. Div. 1982).

In deciding whether agency action is proper, we ask "whether 

the findings made could have been reasonably reached . . . 

considering the proofs as a whole, with due regard also to the 

agency's expertise when such expertise is a pertinent factor." 

Close v. Kordulak Bros., 44 N.J. 589, 599 (1965); Burrus v. Dep't 

of Human Servs., Div. of Pub. Welfare, 194 N.J. Super. 60, 67 

(App. Div. 1984); Freud v. Davis, 64 N.J. Super. 242 (App. Div. 

1960). 
9 A-1432-16T4

A presumption of reasonableness attaches to the actions of 

administrative agencies, particularly when an agency is dealing 

with specialized matters within its area of expertise. Newark v. 

Nat. Res. Council, 82 N.J. 530, 539-41 (1980); In re Matter of 

Vey, 272 N.J. Super. 199, 205 (App. Div. 1993). We do not 

substitute our judgment for that of the agency and, if there is 

any argument supporting the agency action, it must be affirmed. 

Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 587 (1988). 

Furthermore, petitions for reconsideration must include new 

evidence or additional information not presented at the original 

proceeding which would change the outcome, along with the reason 

the evidence has not been previously proffered. See N.J.A.C. 

4A:2-1.6(b). Additionally, the petition must demonstrate that a 

clear material error has occurred. Ibid.

We agree that Randolph was entitled to notice from the JCC 

with regard to the charges. See Pepe v. Twp. of Springfield, 337 

N.J. Super. 94, 97 (App. Div. 2001). Contrary to his claim, 

however, Randolph received adequate notice. The FNDA specifies 

that an Office of EEO investigative report substantiated that he 

possessed sexually inappropriate material on his work computer.

Randolph argues he was merely charged with possession, as 

opposed to transmission, and that thus he cannot be found guilty 

of misuse. The argument is specious. Randolph transmitted the 
10 A-1432-16T4

material irrefutably proving he knew it existed in his computer. 

He was on notice of the facts leading to the charges. 

Randolph's transmission of the materials established conduct 

unbecoming a public employee. This longstanding offense, as the 

CSC pointed out, is behavior "that adversely affects morale or 

efficiency or has a tendency to destroy public respect for 

governmental employees and confidence in the operation of public 

services." The CSC properly relied on In re Emmons, 63 N.J. Super. 

136 (App. Div. 1960), in finding that a State employee's

transmission of sexually explicit materials from a State computer, 

originating from a State e-mail address, during work hours, is 

conduct which certainly has a tendency to erode public respect for 

governmental employees and to diminish confidence in the operation 

of public service.3 Thus, the CSC's decision in this regard was 

not arbitrary, capricious or unreasonable. The CSC drew reasonable 

conclusions from irrefutable proofs. 

Similar arguments are made by Randolph with regard to the 

application of the State's anti-discrimination policy. Forwarding 

such material to colleagues and a subordinate at work is clearly 

the transmission of demeaning images regarding gender. See

 

3 Emmons is an early decision regarding conduct unbecoming, 

defining the disciplinary charge as including conduct that 

undermines "public respect[.]" Id. at 140.
11 A-1432-16T4

N.J.A.C. 4A:7-3.1(b)(1)(vii). There is no question that Randolph 

did not intend to harass or demean the recipients of the 

emails——that is not the gravamen of the offense, however. Rather, 

it is the transmission of material which is demeaning to women to

others in the workplace that gives rise to the violation. N.J.A.C. 

4A:7-3.1(b)(1)(vii) actually offers by way of an example of such 

behavior, the display of material in the workplace "that contains 

derogatory or demeaning language or images pertaining to any of 

the protected categories." Randolph's transmission readily falls 

within that language. 

Furthermore, at the time Randolph transmitted the material, 

he was held to a higher standard because of his supervisory role, 

as the CSC also pointed out. See N.J.A.C. 4A:7-3.1(e). Thus, the 

CSC's decision that Randolph violated the State's antidiscrimination policy is neither arbitrary nor capricious, but is 

founded on irrefutable proofs and a clearly expressed policy in 

effect at the time of the conduct. 

Finally, Randolph alleges that his demotion was 

disproportionate to his conduct and that it violated principles 

of progressive discipline. We alter a disciplinary penalty if 

"such punishment is so disproportionate to the offense, in light 

of all the circumstances, as to be shocking to one's sense of 

fairness." In re Herrmann, 191 N.J. 19, 29 (2007) (citing In re 
12 A-1432-16T4

Polk, 90 N.J. 550, 578 (1982)). But progressive discipline need 

not be employed in every case. Id. at 33. It is inapplicable, 

"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." Ibid.

There is no question that Randolph had no prior disciplinary 

history. But Randolph, a supervisor, forwarded sexually 

suggestive material to others from his public workplace, including

to colleagues, and one subordinate——whose ideas of the behavior 

expected of a public employee would be influenced by his 

supervisor's behavior. Given his position and the blatant 

deviation from workplace policies, the penalty does not shock our 

sense of fairness. See id. at 29.

Affirmed.