                            NOT FOR PUBLICATION WITHOUT THE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.




                                                     SUPERIOR COURT OF NEW JERSEY
                                                     APPELLATE DIVISION
                                                     DOCKET NO. A-2346-18T3

IN THE MATTER OF ASIA
ATKINS, DEPARTMENT
OF CORRECTIONS.
________________________

                Argued telephonically March 30, 2020 –
                Decided April 29, 2020

                Before Judges Geiger and Natali.

                On appeal from the New Jersey Civil Service
                Commission, Docket No. 2019-1604.

                Arthur J. Murray argued the cause for appellant Asia
                Atkins (Alterman & Associates, LLC, attorneys; Stuart
                J. Alterman, of counsel and on the brief; Arthur J.
                Murray, on the brief).

                Jana R. DiCosmo, Deputy Attorney General, argued the
                cause for respondent New Jersey Department of
                Corrections (Gurbir S. Grewal, Attorney General,
                attorney; Jane C. Schuster, Assistant Attorney General,
                of counsel; Jana R. DiCosmo, on the brief).

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

      Appellant Asia Atkins appeals from a January 2, 2019 Civil Service

Commission (CSC) final administrative decision dismissing her as a senior

correctional police officer with the New Jersey Department of Corrections

(DOC) after an investigation determined that she violated numerous DOC

policies including conduct unbecoming a public employee and undue familiarity

with a parolee, Haashim Johnson. We affirm.

                                       I.

      The evidence presented before the Office of Administrative Law (OAL)

established the following facts. In January 2004, appellant was hired by DOC

as a corrections officer at the New Jersey State Prison (NJSP) in Trenton.

Johnson, who appellant described as her "godbrother," had been incarcerated

since July 2, 2003 and was assigned to South Woods State Prison in Bridgeton

at that time. On February 9, 2004, appellant wrote a letter to the Administrator

at NJSP seeking "permission to continue correspondence via letters and phone

calls with [Johnson]." Johnson was later incarcerated at the NJSP in Trenton

from January 9, 2007 to June 21, 2007, where appellant served as a correctional

officer.




                                                                        A-2346-18T3
                                       2
      On June 14, 2011, according to an incident report, an inmate "started [a]

fire and assaulted officers," injuring appellant's "neck, back, left knee/shin, left

shoulder, . . . and right foot." As a result of that event, appellant did not return

to work until July 29, 2013, receiving workers' compensation benefits

throughout that period. Two years later, on July 5, 2015, appellant filed a report

stating that she was "struck in the [left] arm by [a] light fixture that was on top

of [a] file cabinet," and that her left hand and forearm were injured. In its

incident report, the DOC stated that "[t]he light fell from the cabinet striking her

in the left forearm[,] causing swelling," and that following a medical

examination, appellant would be "out of work until [July 9, 2015] due to a

contusion to the left forearm." Appellant, however, never returned to work and

again received workers' compensation benefits.

      Two months later, on September 29, 2015, appellant filed an Application

for Accidental Disability Retirement with the New Jersey Division of Pensions

and Benefits (NJDPB), seeking an effective retirement date of October 1, 2015.

In support of her application, appellant cited the June 14, 2011 event and noted

that as a result of her injuries stemming from that incident, she had "been taking

narcotics for [four] years, as well as other medications dealing with the pain in

[an] effort to return to work and maintain a normal lifestyle," and that her


                                                                            A-2346-18T3
                                         3
"physical . . . [and] mental being have been impaired and have severely impacted

[her] work performance."1 She also stated she was "in fear of [her] safety as

well as [her] coworkers' and no longer can perform [her] duties as an officer."

        In a certification contained in the administrative record, appellant stated

that in November 2015, she began dating Johnson, who had been released on

parole earlier that year. Appellant married Johnson in March 2016, while he

was still under parole supervision.

        On October 20, 2016, the NJDPB issued a letter to appellant denying her

application for disability retirement benefits. In support of its decision, the

NJDPB stated that appellant was not "totally and permanently disabled either

mentally or physically from the performance of [her] regular and assigned

duties" based on the June 14, 2011 and July 5, 2015 incidents. Appellant filed

an appeal with the OAL of the NJDPB's decision.

        In May 2017, Johnson was re-incarcerated for a parole violation. Shortly

thereafter, appellant transferred money to Johnson's JPAY account2 using her

name. She also sent various e-mails to him while he was incarcerated, including


1
  In her disability retirement application, appellant also complained of a left arm
injury and it appears that the NJDPB considered both the June 14, 2011 and July
5, 2015 incidents in reaching its decision.
2
    JPAY is a service that allows individuals to transfer money to inmates.
                                                                           A-2346-18T3
                                         4
pictures of the two together and a graphic that said, "Happy Anniversary."

Appellant certified that at this point, "Johnson contacted [her] to tell [her] he

had been questioned by the [DOC] Internal Affairs Unit as to [their]

relationship," and that this contact was her initial notice that she was still

considered by the DOC as an employee. When appellant was ordered by the

DOC to report to the Internal Affairs Unit for an interview regarding the

investigation, she chose not to attend.

      On July 24, 2017, after an investigation by the DOC's Special

Investigations Division, the DOC served appellant with a Preliminary Notice of

Disciplinary Action charging her 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);

conviction of a crime, 3 N.J.A.C. 4A:2-2.3(a)(5); personal conduct, Human

Resources Bulletin (HRB) 84-17(C); conviction of a crime, HRB 84-17(C9);

intentional disobedience of refusal to accept an order, HRB 84-17(C); conduct

unbecoming an employee, HRB 84-17(C11); conviction of an offense involving

dishonesty or of a crime in the third-degree or above, or an office involving or



3
  This offense appears to involve appellant's guilty plea to violating N.J.S.A.
2C:21-34B related to her submitting a forged letter to the New Jersey Motor
Vehicle Commission. According to the DOC, appellant failed to report either
the charge or her guilty plea.
                                                                         A-2346-18T3
                                          5
touching her officer, position of employment, HRB 84-17 (C18); safety and

security precautions, HRB 84-17(D); improper or unauthorized contact with an

inmate – undue familiarity with inmates, parolees, their families or friends, HRB

84-17(D); violations of administrative procedures and/or regulations involving

safety and security, HRB 84-17(D7); general, HRB 84-17(E); and violation of a

rule, HRB 84-17(E1).

      After issuing the preliminary notice, the DOC held a pre-termination

hearing and a disciplinary appeal hearing.4 A hearing officer found that by a

preponderance of the evidence, the DOC established that appellant was

insubordinate, engaged in conduct unbecoming an employee, had "[i]mproper

or unauthorized contact with an inmate – undue familiarity with inmates,

parolees, their families, or friends," violated safety and security procedures and

regulations, and violated DOC rules. The hearing officer further determined that

"the actions of the [a]ppellant in this matter were so egregious they reached the

level of zero tolerance," and ordered the sanction of removal, effective




4
   Notice was sent by certified mail informing appellant of a pre-termination
hearing on August 18, 2017. The day prior to the hearing, appellant sent a letter
of resignation to the DOC, which it rejected based on appellant's "pending
disciplinary charges."
                                                                          A-2346-18T3
                                        6
September 6, 2017. Following the hearing, the DOC served appellant with a

final notice of disciplinary action.

       Appellant appealed the DOC's August 18, 2017 agency decision with the

OAL. In January 2018, the DOC filed a motion for summary decision regarding

the charge of conduct unbecoming a public employee. In support of its motion,

the DOC argued that appellant violated its "undue familiarity policy," which

prohibited DOC staff members from "[e]stablish[ing] a personal . . . relationship

with an inmate under the supervision of the NJDOC," including those "on parole

status, within one year of the completion or vacating of all court imposed

sentences . . . ."

       In response, appellant contended that contested issues of fact required a

hearing on the motion.       Specifically, appellant maintained that summary

disposition was inappropriate because:     1) her appeal of the denial of her

application for disability retirement benefits was still pending; 2) there was an

issue of fact regarding whether "a marriage between an inactive employee and a

parolee" constituted undue familiarity; 3) an issue of fact existed as to whether

appellant "attempted to hide her marriage from the [DOC] after . . . Johnson's

re-incarceration"; and 4) she reasonably believed she was no longer an employee

of the DOC.


                                                                         A-2346-18T3
                                       7
      In reply, the DOC argued that appellant remained an NJSP employee

because "the submission of her disability retirement application did not sever

her employment." Specifically, it maintained that the DOC retains employees

"in non-pay status on the payroll while the employee awaits a decision" on such

an application, and that appellant was on the payroll until September 6, 2017.

Further, the DOC maintained that appellant clearly violated conduct rules

regarding undue familiarity by marrying Johnson while he was on parole, and

that she tried to hide the marriage from the DOC by failing to submit proper

documentation.

      On December 10, 2018, an Administrative Law Judge (ALJ) issued a

written decision and order denying the DOC's motion for summary decision. In

doing so, the ALJ found that there was "no evidence as to what, if any contact

there was between appellant and . . . Johnson . . . when appellant first became a

corrections officer and requested permission to maintain contact with him." The

ALJ also found that "[t]here [was] no evidence as to any notice that appellant

would have received from [the DOC] clarifying and/or explaining her

employment status once she submitted her disability retirement application" and

that any finding of whether appellant's conduct constituted "conduct




                                                                         A-2346-18T3
                                       8
unbecoming a public employee" would "require[] an evidentiary hearing where

credibility can be assessed."

      Regarding the sanction of removal, the ALJ determined that there had

"been no evidence regarding progressive discipline previously imposed" and

that the DOC undue familiarity policy "does not require removal for a first

violation of the policy." For these reasons, the ALJ concluded that there was

insufficient evidence "to properly dispose of this matter by way of summary

decision" and scheduled an evidentiary hearing "to assess the credibility of any

of the witnesses and weigh the testimony and evidence presented."

      After granting the DOC's request for interlocutory review, the CSC issued

a January 2, 2019 written decision and order that reversed the ALJ and granted

summary decision to the DOC. The CSC found that it was undisputed that:

appellant began dating Johnson around November 2015, while Johnson was on

parole; "appellant sent [Johnson] romantic messages in May and June 2017,

while he was still incarcerated"; and appellant "deposited funds into [Johnson]'s

JPAY account on numerous occasions in May and June 2017." It further found

that appellant did not report these activities to the DOC.

      With respect to appellant's argument that she did not know she was still

subject to DOC policies, the CSC found that her knowledge of her employment


                                                                         A-2346-18T3
                                        9
status was not a material fact warranting denial of summary disposition. In this

regard, the CSC determined that:

            the mere fact that the appellant applied for Accidental
            Disability Retirement did not mean that she was
            automatically approved[,] as the application was still
            subject to approval by the Board of Trustees. In fact,
            the Board of Trustees denied the appellant's application
            in this case in October 2016, and she was aware of the
            denial.

      Based on that finding, the CSC determined that "appellant's assumption

that she was no longer subject to departmental policies and procedures was not

a reasonable one as her employment did not actually end until the effective date

of her removal, September 6, 2017."        It further stated that her "professed

ignorance of her employment status is not a genuine issue of material fact," and

that the undisputed facts in the record sufficed to support the DOC's charge.

      Moreover, the CSC concluded that "the only appropriate penalty for the

appellant's misconduct is removal." In reaching its conclusion, the CSC relied

upon In re Ivette Arce, Dep't of Corr., Commission, Final Decision (September

6, 2017),5 in which it held that the DOC "was justified in removing [that


5
   While we recognize that "an unpublished agency decision may have no
precedential value for a court, the body of agency decisional authority is
available to the entire regulated community and provides guidance to that
community." In re Adamar of N.J., Inc., 401 N.J. Super. 247, 271 (App. Div.


                                                                         A-2346-18T3
                                      10
appellant] for having a personal relationship with an inmate" and that summary

disposition was appropriate "because a personal relationship with an inmate is

grounds for removal even if the relationship was not of a dating, physical[,] or

sexual nature."

      We affirm the CSC's decision, substantially for the reasons set forth in its

January 2, 2019 final decision. We add only the following comments.

                                          II.

      Our review of a final agency decision is limited, and we "do not ordinarily

overturn such a decision 'in the absence of a showing that it was arbitrary, capricious

or unreasonable, or that it lacked fair support in the evidence.'" In re Carter, 191

N.J. 474, 482 (2007) (citations omitted).       Further, we may not substitute our

judgment for that of the agency's when "substantial credible evidence supports [the]

agency's conclusion . . . ." Greenwood v. State Police Training Ctr., 127 N.J. 500,

513 (1992) (citations omitted). Instead, we "defer to an agency's expertise and

superior knowledge of a particular field." Ibid. (citations omitted).




2008). We cite to this agency decision for the limited purpose of explaining the
procedural history of the case before us. See Pressler and Verniero, Current N.J.
Court Rules, cmt. 2 on R. 1:36-3 (2020) (defining the limited scenarios in which
an appellate court may cite an unpublished decision, including for "case
history").
                                                                               A-2346-18T3
                                         11
                                         III.

      Appellant first asserts that the CSC improperly granted summary decision

to the DOC because a plenary hearing was required to determine the facts

supporting a charge of "conduct unbecoming a public employee." Specifically,

she contends the CSC "ignored the fact that [she] subjectively believed she was

a former employee of the DOC after July 5, 2015," that it disregarded the DOC's

lack of proofs as to whether it required appellant to acknowledge receipt of

policies it put in place after July 5, 2015, and that it ignored the fact that she did

not know her precise employment status upon applying for disability retirement

benefits. We disagree.

      A summary decision "may be rendered if the papers and discovery which

have been filed, together with the affidavits, if any, show that there is no genuine

issue as to any material fact challenged and that the moving party is entitled to

prevail as a matter of law." N.J.A.C. 1:1-12.5(b). This standard is similar to

the rule governing a motion for summary judgment. See R. 4:46-2(c).

      Initially, we conclude that the CSC's decision to remove appellant from

employment with the DOC was neither arbitrary nor capricious. Article III,

Section 4 of the DOC Law Enforcement Personnel Rules and Regulations

required appellant to "report all prior relationships with inmates or parolees in


                                                                              A-2346-18T3
                                         12
writing to the Administrator or his or her designee" and Article III, Section 2 of

the DOC Standards of Professional Conduct on Staff/Inmate Over Familiarity

reaffirms that "[u]nder no circumstances may a staff member contact or

correspond with an inmate . . . without written permission from the . . .

Administrator . . .[,] or a parolee . . . without written permission from the

appropriate parole supervisor." These requirements are consistent with the need

to preserve proper interactions between inmates and corrections officers, "who

are required to maintain order and enforce discipline . . . ." Bowden v. Bayside

State Prison, 268 N.J. Super. 301, 305-06 (App. Div. 1993).

       Here, appellant was aware of the undue familiarity policy. Indeed, she

wrote to the Administrator at NJSP on February 9, 2004 seeking "permission to

continue correspondence via letters and phone calls with [Johnson]." Further,

appellant indisputably engaged in an inappropriate relationship with Johnson

and failed to report her relationship with him while he was on parole and, in

fact, continued that relationship prior to her attempted resignation. Violating

"rules barring relationships of familiarity . . . between correction[s] officers and

inmates [constitutes] conduct which the system cannot safely tolerate." Id. at

306.




                                                                            A-2346-18T3
                                        13
      Appellant's argument that a reasonable senior corrections officer would

not have known that by applying for disability retirement benefits, she would be

"retained on payroll in a non-pay status" is meritless. That appellant allegedly

believed that she was no longer subject to DOC rules and policies because she

unilaterally decided not to return to work and filed a disability application were

not material considerations for the DOC which precluded summary disposition.

Appellant points to no statement or document from the DOC that would support

her self-serving interpretation of her employment status.6

      In fact, appellant's own actions contradict her current claims that it was

unreasonable for her to be aware she remained a DOC employee.                It is

undisputed that she did not return to work for two years following her June 14,

2011 injury, and nothing in the record established that the DOC indicated she

was not bound by rules and regulations while she collected workers'


6
   In support of her argument that it was reasonable for her to believe she was
no longer employed at the DOC prior to commencing a relationship with
Johnson, appellant relies on the fact that although certain DOC documents
define the terms "staff," "staff member," "law enforcement personnel,"
"employee," and "officer," the term "retained on payroll in a non-payroll status"
was not defined or included in those terms. Appellant's reliance on those defined
terms is unavailing as there is nothing in those definitions that would reasonably
suggest that appellant was no longer bound by DOC policies. Indeed, she had
not resigned at the time of her application and her status was clearly that of an
employee who requested disability retirement benefits.


                                                                          A-2346-18T3
                                       14
compensation benefits. Likewise, appellant points to no such indication by the

DOC after she left work following her July 5, 2015 injury and subsequent failure

to return to work. Finally, appellant did not resign from the DOC prior to

commencing her relationship with Johnson, although she was clearly aware of

the option, as she attempted to resign on August 17, 2017, the day before her

disciplinary hearing. 7

      "Conduct unbecoming a public employee," N.J.A.C. 4A:2-2.3(a)(6), is an

"elastic" phrase encompassing "any conduct which adversely affects . . . morale

or efficiency . . . [or] which has a tendency to destroy public respect for [public]

employees and confidence in the operation of [public] services." Karins v. Atl.

City, 152 N.J. 532, 554 (1998) (citations omitted). Conduct that "has the

tendency to destroy public respect for [public] employees and public confidence

in the operation of" the public entity is intolerable. Id. at 557.

      Appellant's status as a corrections officer subjects her to a higher standard

of conduct than ordinary public employees. In re Phillips, 117 N.J. 567, 576-77

(1990). This is because corrections officers represent "law and order to the

citizenry and must present an image of personal integrity and dependability in



7
  We also note that in a recorded phone call with Johnson on June 21, 2017,
"appellant admitted, 'I'm still an active employee.'"
                                                                            A-2346-18T3
                                        15
order to have the respect of the public." Carter, 191 N.J. at 485-86 (quoting

Twp. of Moorestown v. Armstrong, 89 N.J. Super. 560, 566 (App. Div. 1965)).

      The CSC correctly resolved the dispute by summary disposition as

appellant failed to demonstrate a genuine issue of material fact regarding

whether she engaged in undue familiarity.     Indeed, as noted, the fact that

appellant allegedly had no knowledge that she was still an employee was not

material. As the CSC noted, "there is no evidence that the appellant separated

from employment via resignation prior to the issuance of the disciplinary

charges against her" months later.     The evidence clearly establishes that

appellant, an employee of the DOC, engaged in undue familiarity with Johnson

while she was still employed and while she was aware that her retirement

application was denied. 8




8
   We similarly reject appellant's related argument that the summary decision
was improper because the DOC used intent-based arguments which precluded
summary decision. First, we review the CSC's final order, not the arguments
made by the parties. Second, as noted, appellant's purported lack of knowledge
regarding her employment status was not a material fact. The undisputed facts
in evidence before the OAL and CSC indisputably established that appellant
engaged in conduct unbecoming a public employee due to her undue familiarity
with a parolee, Johnson, warranting the sanction of removal.
                                                                       A-2346-18T3
                                     16
                                       IV.

      Finally, appellant contends that the sanction imposed is disproportionate

to the charges.   She further maintains terminating her employment would

effectively prevent her "from ever having her pension application heard on the

merits" simply because she failed to appreciate that she was still an active

employee subject to the DOC familiarity policy and factual disputes existed

regarding the penalty for a conduct unbecoming charge. We are not persuaded.

      We review an agency's disciplinary sanction under a deferential standard

and only modify a sanction "when necessary to bring the agency's action into

conformity with its delegated authority." In re Herrmann, 192 N.J. 19, 28 (2007)

(quoting In re Polk, 90 N.J. 550, 578 (1982)). A reviewing court "has no power

to act independently as an administrative tribunal or to substitute its judgment

for that of the agency." Ibid. (quoting Polk, 90 N.J. at 578). When reviewing

an agency's disciplinary action, we consider "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 Polk, 90 N.J. at 578).

      The CSC determined that the "penalty of removal for the misconduct at

issue [was] appropriate where the underlying nature of the relationship is

surreptitious, compromising, or illicit, even where the employee does not


                                                                          A-2346-18T3
                                       17
possess a prior disciplinary record." That finding is amply supported by the

record and under the circumstances the sanction of removal is not "shocking to

one's sense of fairness." See Herrmann, 192 N.J. at 28-29.

      As noted, appellant was aware of the undue familiarity policy regarding

personal relationships between corrections officers and inmates or parolees. She

nevertheless engaged in a relationship with Johnson shortly after applying for

disability retirement benefits without any regard for whether her application was

granted and prior to formally resigning.      As our Supreme Court stated in

Herrmann:

            [J]udicial decisions have recognized that progressive
            discipline is not a necessary consideration when
            reviewing an agency head's choice of penalty 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.

            [Herrmann, 192 N.J. at 33.]

      As the CSC correctly concluded, appellant's conduct warranted the

sanction of removal and was not disproportionate to the charges. No material

and genuine factual issues existed in the record precluding such discipline . We

likewise find no support for appellant's claim that the CSC was precluded from

dismissing appellant because she was appealing the denial of her accidental


                                                                         A-2346-18T3
                                      18
disability claim. Appellant's argument is unsupported by any relevant legal

authority and is of insufficient merit to warrant extended discussion in a written

opinion. R. 2:11-3(e)(1)(D) and (E). We simply note that the CSC was fully

within its authority to take the action it did considering the serious misconduct

established in the record and it was not obligated to withhold discipline of a

DOC correctional officer merely because appellant appealed the denial of her

accidental disability retirement application.

      Affirmed.




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                                       19
