IN THE MATTER OF JOSEPH CONNORS, CAMDEN COUNTY, DEPARTMENT OF CORRECTIONS (NEW JERSEY CIVIL SERVICE COMMISSION)

I
                             NOT FOR PUBLICATION WITHOUT THE
                            APPROVAL OF THE APPELLATE DIVISION
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                                                     SUPERIOR COURT OF NEW JERSEY
                                                     APPELLATE DIVISION
                                                     DOCKET NO. A-2779-18

IN THE MATTER OF JOSEPH
CONNORS, CAMDEN COUNTY,
DEPARTMENT OF
CORRECTIONS.
_____________________________

                Argued March 8, 2021 – Decided July 7, 2021

                Before Judges Gooden Brown and DeAlmeida.

                On appeal from the New Jersey Civil Service
                Commission, Docket No. 2016-912.

                Jacqueline M. Vigilante argued the cause for appellant
                Joseph Connors (The Vigilante Law Firm, PC,
                attorneys; Jacqueline M. Vigilante and Kelly A. Hicks,
                on the briefs).

                Howard L. Goldberg, First Assistant County Counsel,
                argued the cause for respondent Camden County
                Department of Corrections (Christopher A. Orlando,
                County Counsel, attorney; Howard L. Goldberg, on the
                brief).

                Gurbir S. Grewal, Attorney General, attorney for
                respondent New Jersey Civil Service Commission
                (Craig S. Keiser, Deputy Attorney General, on the
                statement in lieu of brief).
PER CURIAM

      Appellant Joseph Connors appeals from the January 18, 2019 final agency

decision of the Civil Service Commission (Commission) upholding his thirty-

day suspension from his position as a corrections lieutenant with the Camden

County Department of Corrections (CCDOC). We affirm.

                                        I.

      The following facts are derived from the record. On November 9, 2014,

Connors was a lieutenant and acting shift commander at the Camden County

Correctional Facility. He was responsible for the operations of the facility.

Eight corrections officers were assigned to search cells with Sergeant James

Pierce as their supervisor. After the search, several inmates reported that their

personal photographs had been defaced, some with the handwritten word "Carr."

This appears to be a reference to Corrections Officer Alfred Carr, who was not

one of the officers who participated in the search of the cells.

      Corrections Officer King received some of the inmate complaints. He

referred the complaints to Pierce, who interviewed the inmates and spoke with

the officers who had participated in the search. Pierce informed Connors of the

allegations. Pierce admitted that he failed to keep a log of which officers




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                                        2
searched which cells, contrary to established procedures. He also failed to ask

the officers which cells they searched.

      Together Connors and Pierce spoke again to the inmates and collected the

defaced photographs. Connors then interviewed the officers involved in the

search as a group. He informed them of the seriousness of the complaints and

asked them to come forward with information about who defaced the photos.

Connors and Pierce subsequently spoke to each of the officers individually.

Corrections Officer Jacob reported that he witnessed King write on the

photographs. Connors then spoke with King, who denied any involvement in

the incident.

      Connors instructed Pierce to prepare an incident report, directing him to

make the report vague. After reviewing Pierce's report, Connors instructed him

to submit it, along with the collected photographs, to the Internal Affairs (IA)

mailbox.

      Connors was unaware whether IA received the incident report or

conducted an investigation. Although he claimed that he asked Sergeant Jones,

an IA investigator, about the report in the days following the incident, Jones

testified that he did not remember having had that conversation with Connors.

No investigation was undertaken by IA.


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                                          3
       Carr learned of the incident on December 1, 2014, nearly a month after it

took place. Fearing for his safety, he immediately submitted a report to IA about

the incident. Jones testified that he did not receive Pierce's report until he

received Carr's report. He obtained the original photographs from the warden.

       Jones interviewed the inmates, who reported that they had had no previous

problems with Carr and doubted he was involved in defacing their property. On

December 11, 2014, Jones interviewed Pierce and King. King denied any

involvement in the incident.     He stated that shortly after the incident he

approached Connors to discuss a conversation he had with Corrections Officer

Bulzak, who he suspected was involved in defacing the photographs. According

to King, Connors refused to discuss Bulzak, telling him the matter was out of

his hands.1

       On December 19, 2014, Jones interviewed Jacob. He stated that although

he saw King write on the photographs, he never gave that information to

Connors.

       On December 30, 2014, Jones interviewed Connors. Prior to the start of

the interview, Connors signed a witness acknowledgment form that provided




1
    Bulzak denied involvement in the incident and was not charged.
                                                                           A-2779-18
                                       4
notice that he was a witness in an IA investigation concerning a complaint by

Carr. At the time of the interview, Connors was not a target of the investigation.

         Connors admitted that on the day of the incident, he interviewed the

officers involved in the search, but did not write a report documenting the fact

that the interviews took place or detailing the information he gathered. In

addition, Connors told Jones he felt he could not act on Jacob's accusation

against King. He explained that:

              I took it into consideration and then I made a point
              again to speak to Officer King in my office . . . . And
              he went on a long rant about . . . his future intentions
              with the department at the time . . . . And at the time
              Officer King had no discipline that I knew of . . . . So
              . . . I had one guy, Jacob, who is up for promotion who
              had a lengthy . . . disciplinary history saying he's seen
              someone do something. And then I have an officer with
              a stern (sic) clean record . . . telling me he had nothing
              to do with it . . . . So I had two different weighing
              options . . . .

         When asked why he did not prepare an initial incident report, Connors

stated

              I didn't generate any reports because I didn't have any
              credible evidence. And I did not want to mislabel any
              officer, uh, for being, eh, juvenile or make their – their
              work atmosphere and the people they work with harder.
              Once you accuse someone until they have their day in
              court they're assumed guilty in – in a lot of people's
              eyes in the court of public opinion. And if you have to
              work with someone you think that is doing something

                                                                            A-2779-18
                                          5
            improper and we put the reports out there and everyone
            gets copies then no one's [going to want to] work with
            that individual.

      Connors also admitted that Pierce's report was

            vague intentionally because I didn't want to . . .
            automatically be branded with this title of, uh, rat or –
            a juvenile or – or a danger. [A]t the time all I had was
            hearsay. So the report was intentionally vague with the
            assumption that when I reported to work on my
            assigned day I would be interviewed first being[] that I
            was the Shift Commander of the jail for that incident.

      After his interview, and almost two months after the incident, Connors

filed a report that stated that "more than one officer had been lying" and that

"more than one person had committed the act."

      Based on the information gathered at the interviews, Jones determined that

Connors had violated his duties by failing to conduct an appropriate

investigation and to document the investigation he did undertake.          Jones

determined that Connors should have: (1) had Jacobs write a report detailing

what he claimed to have seen; (2) detailed his investigation in a written report;

and (3) recommended disciplinary action be taken against King based on the

information he received. As a result of the findings he set forth in a written

report, Jones filed a complaint recommending Connors be disciplined.




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                                       6
      On February 5, 2015, CCDOC filed a preliminary notice of disciplinary

action against Connors seeking a thirty-day suspension based on the following

charges: 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, N.J.A.C.

4A:2-2.3(a)(12), specifically, violations of CCDOC's rules of conduct and

general orders. After a departmental hearing, all charges were sustained, and

CCDOC served Connors with a final notice of disciplinary action suspending

him for thirty days.

      Connors appealed his suspension to the Commission, which transmitted

the matter to the Office of Administrative Law (OAL).        After a hearing,

Administrative Law Judge (ALJ) Elia A. Pelios issued an initial decision

sustaining the charges. ALJ Pelios found, based on a preponderance of the

evidence, that on the day of the incident Pierce made Connors aware of the

inmates' complaints that their property had been defaced during the cell

searches. In addition, the ALJ found that Jacob told Connors that he witnessed

King defacing inmate property. The ALJ found that Connors failed to: (1)

document the incident and Jacob's allegation; (2) complete the investigation;

and (3) recommend disciplinary charges against King.




                                                                        A-2779-18
                                      7
      The ALJ found that CCDOC had established each of the charges alleged.

The ALJ found that Connors's conduct was unbecoming a public employee

because he failed to initiate an appropriate investigation after receiving a report

of serious misconduct by a subordinate. That failure, the ALJ concluded, could

have an effect on the chain of command in the corrections facility, as employees

may be chilled in coming forward with allegations of wrongdoing if they believe

their reports of misconduct by coworkers will not be taken seriously.

      In addition, the ALJ found that Connors neglected his duties because he

violated established CCDOC rules requiring a supervisor to conduct proper,

thorough, and complete investigations when circumstances so indicate, to

submit reports detailing those investigations, and to ensure that reports written

by subordinates do not provide false, improper, or incomplete information. This

finding included the ALJ's determination that Connors violated General Order

169, concerning the mandatory reporting of unusual incidents in the facility.

      Finally, the ALJ found that CCDOC had established other sufficient cause

to discipline Connors, based on his violation of several facility rules specified

in the disciplinary charges concerning supervision, neglect of duty,

investigations, reports, and unbecoming conduct. The ALJ found that CCDOC




                                                                             A-2779-18
                                        8
had failed to establish Connors violated a CCDOC standing order concerning IA

procedures.

       ALJ Pelios upheld the thirty-day suspension. The ALJ found Connors's

disciplinary history to be "not particularly noteworthy," although he declined to

find it "unremarkable." Connors had five prior written reprimands, three for

neglect of duty and one for conduct unbecoming a public employee, and one

one-day fine, but no major disciplinary action had been taken against him.

Several other incidents were addressed through counseling. No discipline had

been imposed on Connors since 2008.2 The ALJ determined that in light of the

paramilitary environment of the correctional facility and Connors's role in the

supervisory structure on the day in question, a thirty-day suspension was

appropriate and not barred by considerations of progressive discipline.

       Connors filed exceptions to the ALJ's decision with the Commission. On

January 18, 2019, the Commission, "having made an independent evaluation of

the record," issued a final administrative determination adopting the ALJ's

findings of fact and initial decision affirming Connors's suspension.

       This appeal followed. Connors argues that the Commission erred because

it adopted the ALJ's opinion, which: (1) did not include credibility findings on


2
    The ALJ erroneously referred to 2009 in his opinion.
                                                                           A-2779-18
                                        9
disputed facts; (2) did not address Connors's argument that CCDOC did not

comply with the forty-five-day rule, see N.J.S.A. 30:8-18.2; (3) violated

Connors' due process rights by relying on his internal affairs interview, which

was conducted without notice to him that he was a target of the investigation;

and (4) suspended Connors without first imposing progressive discipline.

                                         II.

      Our role in reviewing the decision of an administrative agency is limited.

Circus Liquors, Inc. v. Middletown Twp., 

199 N.J. 1

, 9 (2009). We will not

disturb the determination of the Commission absent a showing "that it was

arbitrary, capricious or unreasonable, or that it lacked fair support in the

evidence, or that it violated legislative policies expressed or implicit in the civil

service act." Campbell v. Dep't of Civil Serv., 

39 N.J. 556

, 562 (1963).

      Decisions of administrative agencies carry with them a presumption of

reasonableness. In re Carroll, 

339 N.J. Super. 429

, 437 (App. Div. 2001).

Moreover, "[a]ppellate courts must defer to an agency's expertise and superior

knowledge of a particular field." Greenwood v. State Police Training Ctr., 

127

N.J. 500

, 513 (1992). However, we are "in no way bound by the agency's

interpretation of a statute or its determination of a strictly legal issue."

Mayflower Sec. Co. v. Bureau of Sec., 

64 N.J. 85

, 93 (1973).


                                                                               A-2779-18
                                        10
      "There is no constitutional or statutory right to a government job." State-

Operated Sch. Dist. v. Gaines, 

309 N.J. Super. 327

, 334 (App. Div. 1998). Civil

Service employees' rights and duties are governed by the Civil Service Act,

which provides that a public employee may be subject to major discipline for

various employment-related offenses. N.J.S.A. 11A:2-6; N.J.A.C. 4A:2-2.3. In

an appeal from a disciplinary action or ruling by an appointing authority, the

appointing authority bears the burden of proof to show, by a preponderance of

the evidence, that the action taken was appropriate.          N.J.S.A. 11A:2-21;

N.J.A.C. 4A:2-1.4(a); In re Polk, 

90 N.J. 550

, 560 (1982).

      Having carefully reviewed Connors's arguments in light of the record and

applicable legal principles, we conclude the Commission's final agency decision

is sufficiently supported by the record and is not arbitrary, capricious, or

unreasonable. We add the following comments.

      While it is true that the ALJ did not expressly state that he found the

testimony of any witness to be credible, it is clear from his findings of fact that

he found that Connors was aware of the incident on the day in question, that

Jacob told him King had defaced inmate property, that Connors failed to

complete a report detailing that information, and that Connors did not complete




                                                                             A-2779-18
                                       11
an investigation of the incident or memorialize any of the interviews he

conducted, or recommend disciplinary action against King.

      Connors argues that the ALJ did not make a specific finding with respect

to whether Pierce submitted a timely report to IA. The ALJ's opinion suggests

that he found Pierce's testimony on this point credible. The ALJ notes that IA

was in possession of the original photographs and could not have obtained them

other than as an attachment to Pierce's report. However, even if the question of

Pierce's submission of a report to IA was not resolved, Connors admitted that he

instructed Pierce to make the report intentionally vague, thereby omitting

critical information of which Connors was aware. This fact alone is sufficient

support for the disciplinary charges.

      We are not persuaded by Connors's arguments regarding his right to

representation when interviewed by Jones. See NLRB v. J. Weingarten, Inc.,

420 U.S. 251

 (1975); In re Univ. of Med. & Dentistry of N.J., 

144 N.J. 511

, 526-

528 (1996).   An employee is "entitled to the Weingarten right during the

investigation only if he reasonably believed that disciplinary action might

result." 

Id. at 529

. "The reasonable belief standard is guided by 'objective

standards under all the circumstances of the case.'" 

Ibid.

 (quoting Weingarten,

420 U.S. at 257

). An employee must be advised of the right to representation


                                                                          A-2779-18
                                        12
prior to the start of questioning when they are the subject of the investigation

and the right to representation attaches only once the employee "requests

representation and reasonably believes the interview may result in disciplinary

action." 

Id. at 526

.

      The record supports the conclusion that when Connors was interviewed,

Jones thought Connors was a witness, not a target, of the investigation. The

charges against Connors are based on his failure to memorialize Jacob's

accusation against King and detail the interviews he conducted, his instruction

to Pierce to write an intentionally vague report for submission to IA, and his

failure to recommend discipline against King. That information was obtained

during Jones's interview with Connors, not prior to the interview, and was not,

as suggested by Connors, readily apparent from the vague report Pierce filed

with IA.

      We also see no basis to reverse the Commission's final agency decision

based on the forty-five-day rule. N.J.S.A. 30:8-18.2 provides in relevant part:

            [a] person shall not be removed from employment or a
            position as a county correctional police officer, or
            suspended, fined or reduced in rank for a violation of
            the internal rules and regulations established for the
            conduct of employees of the county corrections
            department, unless a complaint charging a violation of
            those rules and regulations is filed no later than the 45th
            day after the date on which the person filing the

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                                       13
              complaint obtained sufficient information to file the
              matter upon which the complaint is based. A failure to
              comply with this section shall require a dismissal of the
              complaint.

Under an analogous statute governing discipline of State Police Officers, courts

have evaluated the "sufficient information" provision that starts the forty-five-

day clock. See N.J.S.A. 53:1-33. Under that statute, "it is not the happening of

the event giving rise to discipline that starts the clock for purposes of evaluating

timeliness, but the receipt of 'sufficient information' by the one who is

authorized to file the charge that is significant." Roberts v. Div. of State Police,

191 N.J. 516

, 524 (2007). Receipt of an investigative report to the supervisor

permitted to file charges, will satisfy the sufficient information requirement.

Ibid.

        The record supports the conclusion that the forty-five-day clock began on

January 7, 2015, when Jones submitted his report and recommendation for

discipline to the warden. The warden, not Jones, is the supervisor authorized to

submit charges against Connors. The formal charges were brought against

Connors on February 6, 2015, thirty days after sufficient information to do so

was received by the warden.

        We disagree with Connors's argument that the forty-five-day clock began

when Pierce filed his report on November 9, 2014, or when Carr filed his

                                                                              A-2779-18
                                        14
complaint on December 1, 2014. Those documents did not provide sufficient

information to bring charges against Connors. While it was apparent on those

dates that Connors had not filed a report about the incident, the full context of

his actions, including the fact that he had interviewed many witnesses, including

one who accused King, and had directed Pierce to file a vague report with IA

omitting that information, were not known to those authorized to file charges.

      We also reject Connors's argument that the Commission erred by not

imposing progressive discipline. Generally, the severity of a public employee's

discipline should increase incrementally.     In re Herrmann, 

192 N.J. 19

, 33

(2007). However, progressive discipline can be waived if "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 [its] application

. . . would be contrary to the public interest." Ibid.; see also In re Stallworth,

208 N.J. 182

, 196-197 (2011); Div. of State Police v. Jiras, 

305 N.J. Super. 476

,

478-82 (App. Div. 1997) (finding bypass of progressive discipline appropriate

after State Trooper assaulted a prisoner, rendering the Trooper unable to

function as a law enforcement officer).

      As the ALJ aptly noted, Connors's disciplinary history was not sterling.

He had on several occasions previously been found to have neglected his duties


                                                                            A-2779-18
                                       15
and to have engaged in conduct unbecoming of a public employee. In addition,

the current charges involve actions that undermine the command structure at the

correctional facility, discourage officers from reporting misconduct by other

officers, and potentially left Carr in a dangerous position, as his name had been

scrawled on the personal photographs of inmates, but complete information

about the incident had not been memorialized.

      To the extent we have not addressed Connors's other arguments, we

conclude they are without sufficient merit to warrant discussion in a written

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

      Affirmed.




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                                      16

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