                     NOT FOR PUBLICATION WITHOUT THE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 NOS. A-1432-16T4
                                                A-1434-16T4

IN THE MATTER OF
ROBERT RANDOLPH,
JUVENILE JUSTICE COMMISSION
_____________________________

           Submitted June 6, 2018 – Decided September 5, 2018

           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
     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).

                                        2                                  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.

                                  3                              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 forty-

five 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

                                              4                                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.



                                5                         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, e-
     mails 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.


                      6                          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




                                 7                          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).



                                        8                             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

                                  9                          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.

                                      10                                  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     anti-

discrimination 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

                                       11                                  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.




                                        12                                    A-1432-16T4
