                             NOT FOR PUBLICATION WITHOUT THE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-3580-17T3

IN THE MATTER OF
EUGENE R. ROYSTER AND
KATE BLASZKOWSKI,
BURLINGTON COUNTY.
______________________________

                Argued June 4, 2019 – Decided July 9, 2019

                Before Judges Suter and Enright.

                On appeal from the New Jersey Civil Service
                Commission, Docket Nos. 2018-1000 and 2018-1003.

                Mark W. Catanzaro argued the cause for appellants
                Eugene R. Royster and Kate Blaszkowski.

                Primitivo J. Cruz argued the cause for respondent
                Burlington County (Malamut & Associates, attorneys;
                Andrew C. Rimol, on the brief).

                Gurbir S. Grewal, Attorney General, attorney for
                respondent New Jersey Civil Service Commission
                (Pamela N. Ullman, Deputy Attorney General, on the
                statement in lieu of brief).

PER CURIAM
      Eugene R. Royster and Kate Blaszkowski appeal the April 6, 2018 final

agency decision of the Civil Service Commission (Commission) that affirmed

the termination of their employment as Burlington County Corrections Officers.

They do not dispute that on two separate dates, they failed to perform security

tours in the I-Wing of the Burlington County Detention Center (Jail) where they

were assigned, and then falsely entered in the Jail's logbook that they performed

the tours. Instead, they contend they should have been suspended and not

removed because others with similar infractions were not terminated. We affirm

the Commission's decision.

      In July 2017, the Jail's video surveillance tapes were reviewed as part of

an investigation ordered by the warden following the death of an inmate in I-

Wing, and a report was prepared.1 Comparison of the videotapes with the Jail's

logbook showed that on June 3, 2017, Officer Royster recorded that he made

three security tours of the I-Wing he did not make. On July 1, 2017, he recorded

five security tours he did not make. On June 3 and July 1, 2017, Officer

Blaszkowski was assigned to the I-Wing to provide relief to other officers when

they went on break. She recorded one false entry on June 3, 2017, for a security



1
   There is no allegation that appellants were involved with that incident. Rather,
it prompted an investigation that yielded additional issues.
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tour she did not make. On July 1, 2017, she recorded two security tours she did

not actually perform. Neither officer had a history of disciplinary infractions.

Both were longstanding employees.

      The County's preliminary notices of disciplinary action sought removal of

both officers and charged them with incompetency, inefficiency or failure to

perform duties; inability to perform duties; conduct unbecoming a public

employee; neglect of duty; and other sufficient cause, N.J.A.C. 4A:2-2.3(a)(1),

(3), (6), (7), and (12). The "other sufficient cause" charge alleged specific

violations of the Jail's Policy and Procedures Manual (Manual).2 Appellants

were terminated from service following departmental hearings and issued final

notices of disciplinary action.      Their appeals to the Commission were

transmitted to the Office of Administrative Law for a hearing.

      Administrative Captain Matthew Leith testified he reviewed the findings

from the investigative report and compared those to the Jail's videotapes. These

showed discrepancies between the security tours performed by Royster and

Blaszkowski and what they recorded in the logbooks. I-Wing was for persons

newly committed to the Jail. Leith testified that "[t]he first 48 hours tend[ed] to



2
  This included sections 1007, 1023, 1030, 1031, 1038, 1065, 1066, 1172, 1190,
1192 and 1250.
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be the most dangerous for inmates" because there was a higher suicide rate. In

I-Wing, the officers did not have the ability to see inside all the cells because of

the manner in which it was configured. Officers needed to enter the tier to see

what was going on inside the cells.

      Security tours were required by the Jail's Manual to be performed

"approximately every thirty . . . minutes at irregular intervals." Leith testified

the purpose of the logbook was "to have an official record of what took place on

that tier on that day."

      Royster explained he did not do the security tours because he "just got

comfortable." Blaszkowski did not do them because she was "too relaxed."

Both testified they understood the importance of doing them, that they were

important to the safety and security of the Jail, and they were one of the primary

responsibilities of a correction officer. They also understood it was important

to maintain an accurate logbook.

      The administrative law judge's (ALJ) initial decision affirmed the

County's decision to remove the officers from their positions. Neither officer

had performed all of the required tours. Each made false entries in the logbook

to indicate they performed the security tours. Finding that there was no fixed

penalty imposed "when the charges involve[d] corrections officers who


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                                         4
neglect[ed] their assigned duty and falsif[ied] records in order to make it appear

that they have performed the duty," the ALJ concluded that "removal [was] fully

warranted" in this case. The ALJ distinguished other cases cited by appellants,

finding "no legal basis . . . for 'disparate treatment' as that term is defined" and

recommended termination from their positions.

      The Commission accepted and adopted the ALJ's findings of fact and

conclusions of law, following its "independent evaluation of the record." On

appeal from the Commission's decision, appellants allege that their disparate

treatment should preclude removal. They complain they were treated differently

than others who were similarly situated in the same building and in the State in

general. They also argue the ALJ was pre-disposed to removal and relied on his

personal views about the punishment.

      The scope of our review of an administrative agency's final determination is

limited. In re Carter, 191 N.J. 474, 482 (2007). We will not interfere with an

agency's final decision unless it is "arbitrary, capricious or unreasonable or it is not

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

Rahway State Prison, 81 N.J. 571, 579-80 (1980); see Russo v. Bd. of Trs., PFRS,

206 N.J. 14, 27 (2011). We "accord substantial deference to an agency head's

choice of remedy or sanction . . . ." In re Herrmann, 192 N.J. 19, 34-35 (2007)


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                                           5
(quoting Div. of State Police v. Jiras, 305 N.J. Super. 476, 482 (App. Div.

1997)). We have applied such deference when reviewing determinations of the

Commission, or of its predecessor agencies that have administered the civil service

laws. See, e.g., Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562, 578 (1963);

Falcey v. Civil Serv. Comm'n, 16 N.J. 117, 125 (1954); In re Sheriff's Officer, 226

N.J. Super. 17, 21 (App. Div. 1988). "[P]rogressive 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, 192 N.J. at 33. The question 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, 191 N.J. at 484 (quoting In re Polk

License Revocation, 90 N.J. 550, 578 (1982)).

      "[F]alsification of a report can disrupt and destroy order and discipline in

a prison." Henry, 81 N.J. at 580. In Henry, a corrections officer falsified a

report so he could continue his own investigation of drug trafficking in the

prison. Id. at 574. Although the Department of Corrections ordered Henry's

removal from employment for this, the Commission reduced the penalty to a

suspension. Ibid. The Court remanded to the Commission to re-determine the


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                                        6
penalty to be imposed, noting that the deliberate falsification of the report

"[e]ven if motivated by good intentions . . . subverted the discipline at [the

prison]." Id. at 580.

      In the case of In re Warren, 117 N.J. 295 (1989), the Supreme Court

reiterated this point. In Warren, the Court affirmed the suspension of a prison

guard who did not make a head-count of the inmates but said that he did. Id. at

299. The Court noted that if the case were tried as an intentional falsification

case, "the Board must consider this as an offense striking at the heart of

discipline within the corrections system." Ibid. Not to do so "would violate

implied legislative policies regarding prison security." Ibid.

      We reject appellants' allegation that there was an inconsistency between

Henry and Warren. Warren was tried primarily as a neglect of duty case rather

than an intentional falsification case. In that context, the Court said "a period

of suspension is not a penalty that could not reasonably have been imposed on a

showing of the relevant factors." Ibid.

      Appellants' argument that they were treated unfairly or disparately rests

on unreported cases with no precedential value. See R. 1:36-3 (providing that

"[n]o unpublished opinion shall constitute precedent or be binding upon any

court"). We reject appellants' arguments because they have cited no binding


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                                          7
authority to support them. Even if we were to consider their arguments, the

cases cited all are distinguishable.

      Appellants also allege unfair treatment because they contend a lieutenant

and a sergeant at the Jail were not disciplined for similar conduct. With respect

to the lieutenant, there was nothing in the record about falsification nor was the

record clear on whether all the tours were performed because the record was

incomplete. With respect to the sergeant, the record served only to raise issues;

while appellants argued the sergeant had not performed a tour, a claim that the

sergeant questioned, that record also was incomplete. The ALJ observed that it

was "unclear exactly what the appointing authority understood about [the

sergeant's or lieutenant's] on duty conduct vis-a-vis their own inspection

requirements at the time in question." We agree that appellants did not show

the Commission was arbitrary, capricious or unreasonable in its decision to

terminate appellants' employment based on this record.

      Appellants did not prove disparate treatment. "The conscious exercise of

some selectivity in enforcement is not a constitutional violation unless the

decision to prosecute is based upon an unjustifiable standard such as race,

religion, or other arbitrary classification." Twp. of Pennsauken v. Schad, 160

N.J. 156, 183 (1999) (citing Oyler v. Boles, 368 U.S. 448, 456 (1962)).


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                                        8
"Disparate treatment is demonstrated when a member of 'a protected group is

shown to have been singled out and treated less favorably than others similarly

situated on the basis of an impermissible criterion' under the antidiscrimination

laws." Mandel v. UBS/PaineWebber, Inc., 373 N.J. Super. 55, 74 (App. Div.

2004) (quoting EEOC v. Metal Serv. Co., 892 F.2d 341, 347 (3d Cir. 1990)).

Appellants did not allege or show that they were part of a protected group or

singled out on that basis. They simply have failed to demonstrate a prima facie

case of disparate treatment.

      Appellants raise concerns that the ALJ may have been biased in favor of

their termination.   This argument provides appellants no avenue of relief,

however, because the Commission's final agency decision said that it made an

independent evaluation of the record in reaching its conclusion; there was no

allegation the Commission was biased. In addition, our review of the record

showed no objectively reasonable basis to believe "a reasonable, fully informed

person [would] have doubts about the judge's impartiality[.]" P.M. v. N.P., 441

N.J. Super. 127, 145 (App. Div. 2015) (quoting DeNike v. Cupo, 196 N.J. 502,

517 (2008)).

      Affirmed.




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