                 NOT FOR PUBLICATION WITHOUT THE
                APPROVAL OF THE APPELLATE DIVISION

                                     SUPERIOR COURT OF NEW JERSEY
                                     APPELLATE DIVISION
                                     DOCKET NO. A-2951-14T4
                                             APPROVED FOR PUBLICATION
IN THE MATTER OF JOHN RESTREPO,
DEPARTMENT OF CORRECTIONS.                        March 27, 2017

____________________________________           APPELLATE DIVISION


           Submitted December 13, 2016- Decided March 27, 2017

           Before Judges Fisher, Leone, and Vernoia.

           On appeal from the Civil Service Commission,
           CSC Docket No. 2014-2092.

           Sciarra   &    Catrambone,   attorneys   for
           appellant John Restrepo (Charles J. Sciarra,
           of counsel; Christopher A. Gray, on the
           briefs).

           Christopher S. Porrino, Attorney General,
           attorney    for   respondent    New   Jersey
           Department of Corrections (Melissa H. Raksa,
           Assistant Attorney General, of counsel;
           Christopher   M.   Kurek,  Deputy   Attorney
           General, on the briefs).

           Christopher S. Porrino,     Attorney General,
           attorney for respondent     New Jersey Civil
           Service Commission (Todd    A. Wigder, Deputy
           Attorney General, on the    statement in lieu
           of brief).

    The opinion of the court was delivered by

LEONE, J.A.D.

    Appellant    John   Restrepo   appeals     the   February      4,   2015

decision   of   the     Civil   Service      Commission      (Commission)

terminating his employment with the Department of Corrections
(DOC).      His appeal raises the issue of whether the timeliness of

Commission      decisions         in   disciplinary         cases       involving      law

enforcement officers and firefighters is governed by the recent

legislation addressing such cases, L. 2009, c.16 (2009 Act), or

by the Administrative Procedure Act (APA), N.J.S.A. 52:14B-1 to

-15.

       We hold that the 2009 Act governs.                  Under the 2009 Act, the

Commission's decision was timely.                   Moreover, the decision was

not    arbitrary,     capricious,       or    unreasonable.          Accordingly,       we

affirm.

                                             I.

       We   derive     the       following       facts   from     the    findings      and

evidence     before     the      Administrative      Law     Judge      (ALJ)   and    the

Commission.

       Restrepo worked for the DOC for approximately six years.

He    was   commended      for    "a   job   well    done    in   dealing       with   the

terrible impact of Hurricane Sandy" in Fall 2012 and for finding

two shanks during a cell search in June 2012.                      Restrepo's record

was free from disciplinary infractions.

       On December 22, 2013, Restrepo was a senior corrections

officer     (SCO)     at   Northern      State      Prison      (Prison).        He    was

assigned to the Prison's Housing Unit F-300, East Side (F3E).

F3E consists of a housing wing comprised of two floors and forty




                                             2                                   A-2951-14T4
prison cells, with two prisoners assigned to each cell.                      F3E

also encompasses a "sally port,"             a secure entryway into F3E

which is monitored by the officer on duty in F3E.                    The Local

Control Point (LCP) is located on the other side of the "sally

port."      In the LCP, on-duty corrections officers can monitor who

enters the East Side and West Side wings and control the opening

and closing of the cell doors in those wings.                   A restroom is

located in the LCP, and this is where on-duty officers may use

the bathroom.         The LCP is separate from F3E and therefore not

part of Restrepo's post in F3E.

      Two separate physical altercations between inmates broke

out   in     F3E   while   Restrepo    was   on    duty    on   December     22.

Lieutenant     Andre    Fleming,   Restrepo's     supervisor,      investigated

the altercations and testified to the following.

      The first physical altercation occurred between 6:28 a.m.

and 7:36 a.m., when several inmates gained access to another

inmate's cell.         Restrepo was not at his post in F3E when this

altercation arose.

      The    second    altercation    occurred    around   12:18    p.m.,   when

some of the inmates involved in the first altercation began

fighting.     Restrepo was at his post for this altercation and was

able to break up and report the fight.




                                       3                               A-2951-14T4
       When Lieutenant Fleming inquired into Restrepo's earlier

absence, Restrepo submitted a statement that he was sick and

using    the     restroom     in    the    LCP.     Restrepo       also    submitted       a

doctor's      note    dated    December      21,    2013,    saying       he    visited    a

doctor and was treated for a stomach virus on that date.

       Lieutenant Fleming reviewed a security video from F3E.                            The

video showed Restrepo was at his post and performed his early

morning inmate count.               Restrepo left his post in F3E at 6:28

a.m. and returned at 7:36 a.m., according to the timestamp on

the video.        Thus, Restrepo was absent from his post for sixty-

eight minutes.          He did not call for relief during this period.

Fleming testified that for an officer to properly obtain relief

from    his     post,   the   officer      should    notify    his    supervisor          to

request    the    relief      and    the   supervisor       will    send       someone    to

temporarily relieve the officer from his post.

       Security Major Michael Chrone testified the Prison Custody

Post    Orders       (Post    Orders)       and    the   DOC's      Law        Enforcement

Personnel       Rules   &    Regulations     (DOC    Rules)    explicitly         provide

instructions for what an officer needs to do before leaving his

post.     The Post Orders provide: "Housing Unit officers are not

to leave their assigned post unless properly relieved by another

officer or permission is granted from the Shift Commander."                              The

DOC     Rules    provide:      "Except       as    predetermined          by     emergency




                                             4                                    A-2951-14T4
response procedures, an officer assigned to a post shall not

leave that post without permission of the supervisor, or until

properly relieved."

    Major Chrone added, through his twenty-one-year career in

corrections, "[he] was always instructed . . . to call for []

relief . . . . either via phone or via radio for your sergeant

to get you relieved to the use the restroom, meal break, so on

and so forth."    Restrepo was equipped with a radio, on which he

could have called a supervisor and requested relief by another

officer so he could use the restroom.

    The DOC issued a preliminary Notice of Disciplinary Action

against Restrepo charging him with neglect of duty, N.J.A.C.

4A:2-2.3(a)(7), and other violations.                 The preliminary notice

advised   Restrepo    removal   was    a    possible        punishment    for   his

charged   offenses.       After    a       hearing,     a     final    Notice    of

Disciplinary   Action    was    issued,      removing       Restrepo     from   his

position effective February 21, 2014.

    Restrepo     simultaneously        appealed       the     decision    to    the

Commission and the Office of Administrative Law (OAL) pursuant

to N.J.S.A. 40A:14-202(d).        After a hearing, the ALJ issued his

initial decision on November 25, 2014.                He made the following

factual findings:

           SCO Restrepo admitted to leaving his post in
           the F3E unit for a period of 68 minutes on



                                       5                                  A-2951-14T4
         December 22, 2013 to use the bathroom in the
         LCP. Both the Custody Post Orders and [DOC
         Rules] provide that any time an officer
         needs to leave his assigned post, it is
         necessary    to    contact     the     officer's
         supervisor to request permission to be
         properly relieved.    As a result, during his
         absence, three inmates entered the cell of
         another inmate and began to fight.           This
         fight   was   not   reported,    and    was   not
         discovered until Lt. Fleming conducted his
         investigation    and    reviewed     the    video
         surveillance of the F3E unit for December
         22, 2013.    Later that same day, the same
         exact inmates were involved in a second
         fight, which was seen and reported by SCO
         Restrepo.   The second fight may have been
         prevented had SCO Restrepo been on his
         assigned post and either witnessed the first
         altercation   or    his   presence    may    have
         prevented the [first] fight from occurring
         in the first place. By failing to contact a
         supervisor prior to leaving his post, SCO
         Restrepo failed and neglected his duties to
         protect the inmates whom he was responsible
         to oversee.       This failure resulted in
         inmates fighting, which created a danger to
         all of the inmates in the F3E unit.           SCO
         Restrepo violated [the Post] Orders and the
         [DOC Rules] when he went to the bathroom
         without first obtaining permission or being
         properly relieved.

    The ALJ found Restrepo's argument that he was allowed to be

in the bathroom for more than an hour was "at best pretextual

and in the context of a prison environment simply unconvincing"

and "casts doubt with respect to [his] ability to exercise good

judgment."   The   ALJ   found   Restrepo   neglected   his   duty    in

violation of N.J.A.C. 4A:2-2.3(a)(7).




                                  6                           A-2951-14T4
      The   ALJ    also    found     Restrepo's       negligent    dereliction        was

serious.     Nonetheless, the ALJ recommended the Commission modify

the discipline to a six-month suspension because removal was too

harsh of a punishment when considering "the absence of any prior

discipline."

      On    February      4,   2015,    the       Commission    issued    a    four-page

final administrative action.             The Commission adopted the factual

findings of the ALJ, agreed with the ALJ regarding the charges,

but   disagreed     with       the   ALJ's        modification    of     the    penalty,

finding Restrepo's misconduct was "egregious" and "created an

extreme safety issue."           Restrepo appeals.

                                          II.

      "Appellate courts have a 'limited role' in the review of

[Commission] decisions."               In re Stallworth, 208 N.J. 182, 194

(2011) (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579

(1980)).     "An appellate court affords a 'strong presumption of

reasonableness' to an administrative agency's exercise of its

statutorily delegated responsibilities."                   Lavezzi v. State, 219

N.J. 163, 171 (2014) (citation omitted).                       "In order to reverse

an agency's judgment, an appellate court must find the agency's

decision to be 'arbitrary, capricious, or unreasonable, or []

not supported by substantial credible evidence in the record as

a whole.'"        Stallworth, supra, 208 N.J. at 194 (quoting Henry,




                                              7                                 A-2951-14T4
supra, 81 N.J. at 579-80) (alteration in original).            We must hew

to that standard of review.

                                   III.

    Restrepo first argues the decision of the Commission was

untimely, and therefore the decision of the ALJ recommending a

six-month   suspension    should   be     deemed   final   under   N.J.S.A.

52:14B-10 of the APA or N.J.S.A. 40A:14-204 of the 2009 Act.              We

must first determine which of those statutory schemes applies

here.

    Cases involving the Commission have long been considered

under the APA.     The APA provides that, in contested cases, after

the ALJ issues a recommended report and decision, the head of

the agency is required to "adopt, reject or modify" the ALJ's

recommendations "no later than 45 days after receipt of such

recommendations."     N.J.S.A. 52:14B-10(c).          "Unless the head of

the agency modifies or rejects the report within [the forty-

five-day] period, the decision of the [ALJ] shall be deemed

adopted[.]"      Ibid.     However,     "for   good    cause   shown,   upon

certification by the [OAL] director and the agency head, the

time limits herein may be subject to a single extension of not

more than 45 days.       Any additional extension of time shall be

subject to, and contingent upon, the unanimous agreement of the

parties."     Ibid.; see N.J.A.C. 1:1-18.8(e).




                                    8                              A-2951-14T4
       In 2009, our Legislature enacted the 2009 Act, entitled "An

Act    Concerning   the    Suspensions   of    Certain   Law   Enforcement

Officers and Firefighters," largely codified at N.J.S.A. 40A:14-

200 to -212.        It defines "Law enforcement officer" and "Law

enforcement agency" to include those statutorily empowered to

act for the "detention, or rehabilitation of persons violating

the criminal laws of this State."             N.J.S.A. 40A:14-200.      The

parties do not dispute the 2009 Act applies to DOC officers.

The 2009 Act provides that an officer appealing imposition of

discipline "shall file his appeal simultaneously with [the OAL]

and [the Commission]" to facilitate the timely rendering of a

final determination.       N.J.S.A. 40A:14-202(d).       "Within 45 days

of receiving [the ALJ's] decision, the commission shall complete

its review and issue its final determination."           N.J.S.A. 40A:14-

204.    "[H]owever, the commission, at its discretion, may extend

its review period by no more than an additional 15 days."            Ibid.

The Commission may obtain a second extension "for good cause" if

it gives "written notice to the Chief Administrative Law Judge"

and the parties and the Chief ALJ decides "the review period

shall be extended."       Ibid.   If the Commission fails to issue its

final decision within the deadline or extended deadline, "the

recommended decision of the administrative law judge shall be

deemed to be final."      Ibid.; see N.J.A.C. 4A:2-2.13(f).




                                     9                            A-2951-14T4
       Thus,    the   APA     and    the    2009   Act    require    conflicting

procedures to request an extension.                 Under the APA, a single

forty-five-day extension may be awarded only if there is good

cause shown, and any subsequent extensions may only be granted

on unanimous consent of the parties.               N.J.S.A. 52:14B-10(c).      By

contrast, the 2009 Act grants the Commission discretion to give

itself one fifteen-day extension, and any subsequent extensions

may be granted by the Chief ALJ upon a showing of good cause.

N.J.S.A. 40A:14-204.

       "It is a well established precept of statutory construction

that when two statutes conflict, the more specific controls over

the more general."        N.J. Transit Corp. v. Borough of Somerville,

139 N.J. 582, 591 (1995); accord Bergen Cty. PBA Local 134 v.

Donovan, 436 N.J. Super. 187, 199 (App. Div. 2014); see Williams

v. Am. Auto Logistics, 226 N.J. 117, 126 (2016) (following "the

oft-stated principle of statutory construction that a specific

statutory declaration prevails over a more general one").                     The

APA's provisions govern administrative procedures generally.                   By

contrast,      the    2009     Act   specifically        governs    disciplinary

proceedings when the review involves a law enforcement officer

or a firefighter.         Thus, in a disciplinary proceeding involving

a law enforcement officer or firefighter as defined in the 2009

Act,   the     specific      procedures     in   the   2009   Act   govern   over




                                           10                           A-2951-14T4
inconsistent procedures generally applicable under the APA.                 See

N.J. Transit, supra, 139 N.J. at 591; see also NYT Cable TV v.

Homestead at Mansfield, 214 N.J. Super. 148, 162 (App. Div.

1986), aff’d, 111 N.J. 21 (1988).

                                    IV.

       The Commission did not make its final determination within

the forty-five-day timeline set forth in the APA and the 2009

Act.     The Commission requested and received two extensions and

issued    its   decision   prior   to   the   expiration   of   the    second

extension.      Because the Commission's second extension was not

based on "the unanimous agreement of the parties," it would not

have     been   proper     under   N.J.S.A.     52:14B-10(c),     and       the

Commission's decision would have been untimely under the APA.

However, the Commission's second extension was proper, and its

decision was timely, under the 2009 Act.

       The ALJ issued his initial decision on November 25, 2014,

and the Commission received it that day.              Thus, the initial

deadline for the Commission to issue its final determination was

January    9,    2015.      The    Commission    considered     the      ALJ's

recommendation in a December 17, 2014 meeting.             On December 26,

2014, the Commission issued a one-page letter stating that it

did not adopt the ALJ's recommendation to modify the penalty to

a six-month suspension and that it upheld Restrepo's removal.




                                     11                               A-2951-14T4
The letter added: "A decision in this matter will be issued in

the near future."

     Meanwhile,      in     a    letter       dated   December           17,   2014,       the

Commission   issued       an    "Order    of    Extension"         for    a    fifteen-day

extension,    until        January       24,    2015,     to       issue       its      final

determination.       The order stated there was "good cause" for an

extension because additional time was required "to comply with

certain   aspects     of    [Capone      v.    N.J.   Racing       Comm'n,       358     N.J.

Super. 339 (App. Div. 2003).]"1                The order was countersigned by

Laura    Sanders,    the       Acting    OAL    Director       and       Chief    ALJ,      on

December 19, 2014.2

     On January 22, 2015, the Commission issued and served a

letter    entitled    "Order      of    Extension     .   .    .     Second      Request,"


1 The Commission apparently believed the extension was governed
by the APA.   The Commission cited N.J.S.A. 52:14B-10(c), which
requires "good cause" and "certification by the [OAL] director"
for a first extension. N.J.S.A. 52:14B-10(c).

2 On the Commission's December 17 letter, Restrepo's counsel is
listed as a "CC."   The letter also stated there was "unanimous
agreement of the parties."   However, Restrepo's counsel argues
he did not receive or consent to the letter. Indeed, the space
for the "Date agency mailed executed order to parties" was left
blank.   Service of extension requests and extension orders is
required under both the APA and the 2009 Act. See N.J.A.C. 1:1-
18.8(e); N.J.A.C. 4A:2-2.13(f).    Any failure to make service,
and any misstatement of consent, was erroneous.     Nonetheless,
the error was harmless and was not "clearly capable of producing
an unjust result," R. 2:10-2, because Restrepo's consent was not
required for a first extension under the APA or the 2009 Act and
because the first extension was not an abuse of discretion under
the 2009 Act.



                                          12                                         A-2951-14T4
requesting a second extension to February 8, 2015, to issue its

final    determination.        The   request      explained       there    was    "good

cause"    because     the    Commission's      meetings     for    January       7   and

January 21, 2015, were cancelled due to lack of a quorum, so a

final decision could not be issued.3                On February 3, 2015, the

Chief ALJ issued and served a letter granting the extension.

She   found    "the   quorum    problem      in   January    was    an    unforeseen

circumstance."        The    Commission      issued   its    final       decision     on

February 4, 2015, within the second extension period.

      Restrepo      argues    the    Commission's      determination         at      its

December 17, 2014 meeting, evidenced in its December 26, 2014

letter, was not the final administrative determination required

by N.J.S.A. 40A:14-204.         We agree.

      The     Commission's     December   26      determination      contained        no

factual findings or conclusions of law and instead merely stated

it rejected the ALJ's recommendation on the penalty.                         We have

repeatedly warned administrative agencies that


3 The Commission again cited the APA's N.J.S.A. 52:14B-10(c),
which requires "the unanimous agreement of the parties" for a
second extension.     The Commission claimed "consent of the
parties is not necessary for this extension request" because
"[a]t its meeting on December 17, 2014, the [Commission] made a
final determination within the required 45 day time frame" and
gave notice of that determination on December 26, 2014.    As we
explain in text, the Commission's actions in December 2014 were
inadequate to constitute a final determination.       Thus, the
second extension required but lacked the unanimous consent
required under the APA.



                                        13                                   A-2951-14T4
            simply notifying a party of its rejection of
            an ALJ's initial decision, followed many
            months later by issuance of a final decision
            containing findings of fact and conclusions
            of law, violates N.J.S.A. 52:14B-10(c) and
            (d) and could result in the ALJ's initial
            decision   being   "transformed   into   the
            agency's final decision."

            [Capone, supra, 358 N.J. Super. at 350
            (quoting N.J. Racing Comm'n v. Silverman,
            303 N.J. Super. 293, 304 (App. Div. 1997)).]

    Nonetheless,        "[t]he   lack    of   findings      of    fact    and

conclusions of law in an agency's [summary letter preceding its

final decision] does not automatically require the ALJ's initial

decision to be 'deemed approved.'"         Id. at 341.      The Commission

recognized its December 26 letter was inadequate and granted

itself a timely initial fifteen-day extension to comply with

Capone.    We cannot say this initial extension was an abuse of

discretion.

    Furthermore, we have indicated an agency which has issued

an inadequate summary order "should have applied to the Office

of Administrative Law for an additional extension . . . until

the issuance of its final decision."          Cavalieri v. Bd. of Trs.

of Pub. Emps. Ret. Sys., 368 N.J. Super. 527, 540 (App. Div.

2004); see Penpac, Inc. v. Passaic Cty. Utils. Auth., 367 N.J.

Super.    487,   499   (App.   Div.),   certif.   denied,   180   N.J.    457

(2004).    Here, the Commission sought and received from the Chief




                                    14                              A-2951-14T4
ALJ    a     second     fifteen-day         extension       and    filed     its      final

determination within that extension period.

       The Commission's lack of quorum constituted good cause for

an extension to render a final determination.                              Three of the

Commission's      five        authorized      members        "shall     constitute          a

quorum."       N.J.S.A.       11A:2-3.        A    quorum    is    necessary      for    the

Commission to render a disciplinary decision.                       See King v. N.J.

Racing     Comm'n,     103    N.J.   412,     418    (1986)       (setting    aside      the

Racing Commission's rejection of the ALJ's recommendation due to

the lack of a "legal quorum").                In King, our Supreme Court held

that   "the    deemed-approved         provision       of    N.J.S.A.       52:14B-10(c)

should not be invoked" where the Racing Commission tried to act

but lacked a quorum and that "the agency should be permitted to

take   remedial       steps    to    cure    the    deficiency       and    to    issue     a

decision."       Id. at 421, 423.                 Therefore, the deemed-approved

provision should not be applied where the agency, rather than

making a decision without a quorum, sought a brief extension to

cure the quorum deficiency and issued a decision within that

extension.

       Our    Supreme        Court    in     King     recognized        "a       statutory

'automatic approval mechanism should be applied with caution.'"

Id. at 422.           The Court "require[s] an agency display of 'bad

faith,'      'inexcusable      negligence,'         'gross    indifference,'          or    a




                                             15                                    A-2951-14T4
complete failure to respond to an ALJ's Initial Decision within

the    forty-five       day     period    before         that    'decision       should       be

transformed into the agency's final decision.'"                           Matturri v. Bd.

of Trs. of the Judicial Ret. Sys., 173 N.J. 368, 379-80 (2002)

(quoting King, supra, 103 N.J. at 421); see also Klusaritz v.

Cape May County, 387 N.J. Super. 305, 314 (App. Div. 2006),

certif.    denied,       191    N.J.     318    (2007).          Thus,    the    Chief    ALJ

properly found "[t]his is not an instance of agency inattention,

or    failure   to     pursue     diligently         its    obligation      to    make    its

decisions."

       Restrepo        argues     the     Commission's           final     decision       was

untimely due to "bad faith, inexcusable negligence, or gross

indifference,"         and,    therefore,       the      ALJ's   recommendation          of    a

six-month suspension should be deemed the final administrative

determination.         King, supra, 103 N.J. at 421.                  He argues a "lack

of    quorum"     is    not     sufficient          to    show    good    cause    for        an

extension.      We disagree.

       Restrepo        alleges     that        the       Commission       has    been     two

commissioners        short      since    2011,       that   it    could    not    obtain       a

quorum in January 2014 either, and that it would be unfair if it

was unable to obtain a full quorum "if one of these members is

on vacation."          However, Restrepo cites no proof for the serious

allegation      that     the     Commission          intentionally        cancelled       its




                                               16                                  A-2951-14T4
January meetings so its members could vacation.                    In any event,

the Commission's issuance of its December 26 letter, and its

obtaining     of   a    quorum     and     issuance     of    Restrepo's      final

determination      by   February    4,    belie     Restrepo's     claim   of    bad

faith, inexcusable negligence, gross indifference, or a complete

failure to respond in the initial forty-five-day period.                         See

Cavalieri,    supra,     368   N.J.      Super.    at   539-40    (upholding     the

Pension     Board's     untimely      ruling      because    it   "signaled      its

intentions to reject the initial decision . . . and issued its

final decision reasonably promptly thereafter"); cf. Silverman,

supra, 303 N.J. Super. at 303 (admonishing the Racing Commission

because it "delayed nine months until it eventually issued its

decision"    without     seeking   any     extensions).       Accordingly,       the

extensions    were      proper,    and     the    Commission's     decision      was

timely.

                                          V.

    Restrepo next argues the decision to uphold his removal was

arbitrary and capricious because the Commission did not follow

the principles of progressive discipline.

    Courts "'accord substantial deference to an agency head's

choice of remedy or sanction.'"                In re Herrmann, 192 N.J. 19,

34-35 (2007) (citations omitted).                 "A reviewing court should

alter a sanction imposed by an administrative agency only 'when




                                          17                               A-2951-14T4
necessary to bring the agency's action into conformity with its

delegated         authority.            The     Court       has     no       power        to    act

independently as an administrative tribunal or to substitute its

judgment     for        that    of    the     agency.'"           Id.    at    28     (citation

omitted).

       Progressive discipline was first endorsed by our Supreme

Court in West New York v. Bock, 38 N.J. 500, 523-24 (1962).

Progressive           discipline      has   been     used    in    two       ways.        "First,

principles of progressive discipline can support the imposition

of a more severe penalty for a public employee who engages in

habitual misconduct."                Herrmann, supra, 192 N.J. at 30.                          "The

second use to which the principle of progressive discipline has

been   put       is    to   mitigate     the    penalty      for    a    current       offense"

where,      as    here,        an    employee      has    little        or    no     record       of

misconduct.           Id. at 32.

       However, neither this court nor our Supreme Court "regard[]

the theory of progressive discipline as a fixed and immutable

rule to be followed without question."                       Carter, supra, 191 N.J.

at   484.         In     particular,        "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."                       Herrmann, supra, 192 N.J. at




                                                18                                        A-2951-14T4
33.    Moreover, "[i]n matters involving discipline of police and

corrections officers, public safety concerns may also bear upon

the propriety of the dismissal sanction."                      Carter, supra, 191

N.J. at 485.

       Here, Restrepo was away from his post for approximately

sixty-eight minutes and notified no one at the Prison he would

be gone or where he was going.               He did so in direct violation of

the Post Orders and the DOC Rules, which forbid an officer from

leaving his post without calling for relief.                     Further, Restrepo

left   an   entire        housing    wing    containing      scores     of    prisoners

unobserved for over an hour, and the prisoners took advantage of

his absence to start a fight that engendered another fight.

Correctional facilities, if not run properly, "have a capacity

to become 'tinderboxes.'"              Bowden v. Bayside State Prison, 268

N.J. Super. 301, 306 (App. Div. 1993), certif. denied, 135 N.J.

469    (1994).       That     potential      was     certainly    displayed          here.

Restrepo's misconduct put lives in danger and could have been

easily avoided by making a radio call to request relief from

another officer.          The DOC determined Restrepo's actions to be so

egregious     and     severe        that    they    warranted     removal.            "The

appraisal     of    the    seriousness      of     [the    officer's]    offense      and

degree   to   which       such   offenses        subvert   discipline        . . .     are




                                            19                                  A-2951-14T4
matters     peculiarly    within          the       expertise         of    the     corrections

officials."     Ibid.

      The Commission agreed with the DOC that Restrepo's conduct

was egregious, finding his absence for "over an hour created an

extreme     safety    issue    for     other         inmates      and      for     correctional

personnel."

      The   Commission        has    de    novo       review      over      public      employee

disciplinary     matters.            Henry,         supra,       81    N.J.       at   579;    see

N.J.S.A. 11A:2-19.         Courts on the other hand "have a limited

role in reviewing a decision of an administrative agency" and

will overturn the decision only if it is "arbitrary, capricious

or unreasonable or it is not supported by substantial credible

evidence in the record as a whole."                            Henry, supra, 81 N.J. at

579-80    (applying     that        standard        to    the     Commission's          decision

regarding     the     penalty       for    a        corrections         officer        who    fell

asleep).     Ultimately, the "question for the courts is 'whether

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

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

of   fairness."'"        Carter,          supra,         191    N.J.       at    484   (citation

omitted).      Here,     the    Commission's              decision         was    supported     by

credible     evidence     and        was       not       arbitrary,             capricious,     or

unreasonable.        Removal does not shock our sense of fairness.




                                               20                                       A-2951-14T4
    Restrepo cites DOC Human Resources Bulletin 84-17, but it

states removal is a potential disciplinary measure for a first

offense for leaving the assigned work area, or other neglect of

duty, if it creates a danger to persons or property.         Therefore,

removal, though not automatic, is warranted where the conduct is

egregious, as it is here.

    Restrepo's   remaining   arguments   lack   sufficient    merit   to

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

    Affirmed.




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