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                                    SUPERIOR COURT OF NEW JERSEY
                                    APPELLATE DIVISION
                                    DOCKET NO. A-4150-14T4



IN THE MATTER OF DURAND GILYARD,
GARDEN STATE YOUTH CORRECTIONAL
FACILITY, DEPARTMENT OF CORRECTIONS.
___________________________________

           Telephonically argued January 18, 2017 -
           Decided March 10, 2017

           Before Judges Lihotz, Hoffman and O'Connor.

           On appeal from the Civil Service Commission,
           Docket No. 2015-2515.

           Patricia B. Quelch argued the cause for
           appellant Durand Gilyard (Helmer, Conley &
           Kasselman, P.A., attorneys; Ms. Quelch, of
           counsel and on the brief).

           Anthony DiLello, Deputy Attorney General,
           argued the cause for respondent Department of
           Corrections (Christopher S. Porrino, Attorney
           General, attorney; Melissa H. Raksa, Assistant
           Attorney General, of counsel; Mr. DiLello, on
           the brief).

PER CURIAM

     Appellant     Durand    Gilyard,    a   former    corrections     officer

assigned to the Garden State Youth Correctional Facility (Garden

State), appeals from the final decision issued by the Civil Service
Commission (Commission), upholding his termination from employment

based upon conduct unbecoming of a public employee and commission

of other prohibited acts.     The Commission adopted the findings and

conclusions issued by an administrative law judge (ALJ) following

an   evidentiary   hearing.    On   appeal,   appellant   maintains   the

Commission's determination was arbitrary and capricious because

his actions fell within his assigned duties and any procedural

lapses in performance did not warrant termination.           We are not

persuaded and affirm.

      The facts recited are found in the administrative hearing

record and are undisputed. Appellant worked as the housing officer

in Garden State's therapeutic community unit, which houses inmates

needing counseling for drug and alcohol addiction.            Appellant

worked the second shift, from 2 p.m. to 10 p.m.

      Shortly after 8:30 p.m. on November 6, 2013, he commenced

searching cells for contraband.      Appellant directed his effort to

verifying the ownership of televisions and radios located in each

cell.   He was concerned there were continuing problems with some

inmates extorting items from others.     He testified: "So I go check

the back of the TVs and look for a name at first.          If this name

doesn't match the inmate in the room, then I'll ask them for

paperwork."    The first several inmates failed to produce the

documents verifying ownership of the electronics.          As a result,

                                    2                            A-4150-14T4
appellant confiscated those televisions and every other television

and radio in the unit.    Because his initial inspections could not

verify ownership, he assumed there was a systemic problem and

confiscated   fifty   televisions   and   fifteen   radios.   Appellant

placed the confiscated electronics in an adjacent housing unit's

storage closet because his unit's storage closets were full.

     Although appellant made a list of items removed from each

cell, he did not "have time" to complete the paperwork required

by the Department of Corrections (DOC) regulations addressing

seizure of contraband.     Appellant admitted he did not follow the

correctional facility's policy, stating:

          So at that time to write that many forms at
          that late at night, I knew it was going to
          take me over the ten o'clock limit. There's
          no way I could a [sic] write confiscation
          sheets for 65 items. It would have took [sic]
          me another hour or two to do that. I felt at
          that time it wasn't an emergent situation only
          because I didn't have any problem with the
          inmates or they didn't give me a disturbance
          [sic].

     Appellant knew the requisite procedures set forth in the

confiscation regulations included the requirement to charge each

offending inmate with improperly possessing the television or

radio and to give each a receipt for the confiscated item.          When

he asked inmates if they wanted paperwork, according to appellant,

the inmates said no.     He admitted:


                                    3                           A-4150-14T4
           The only reason why I didn't 'cause I had not
           determined that every item, or whose item did
           belong to who, who would rightfully theirs,
           who's wasn't [sic].    I was kind of in the
           middle of my investigation. And I didn't want
           to write [c]onfiscation sheets or [c]harges
           at that time without willingly knowing whose
           items rightfully did belong to theirs [sic].
           So I figured, as far as myself[,] a judgment
           call[,] I'll wait till tomorrow.      They're
           secured in the closets. Get to the bottom of
           it the next day.

     Two officers working the next morning testified there was no

unusual behavior by the inmates as they moved from their cells to

the gym for counseling.   However, Ira Crespi and his supervisor,

Jennifer   Penninpede-Fiore,   who   facilitated   substance    and

behavioral counseling programs for Garden State, also testified.

Each testified as to events witnessed during the inmates' group

session, the morning after appellant's confiscations.   Ninety-six

inmates were present for counseling with Crespi and another fifty-

two were in the same gym attending a different session.     Crespi

explained it as "a day that I'd never experienced before," when

"the inmates were disorderly, agitated, irritated, angry."      The

inmates ignored his customary instruction to sit down, and he

heard various inmates discussing the events of the previous night.

They were unsettled because their televisions and radios were

confiscated.   Some inmates stated, "We're going to protest this."




                                 4                         A-4150-14T4
     Crespi testified, "I really thought something bad might have

happened" because the inmates were "pretty upset, very upset and

I feared for my safety."       Crespi contacted Penninpede-Fiore for

help.   When she arrived, accompanied by Sergeant Craig James, who

requested assistance from Lieutenant Brian Hodgson, Penninpede-

Fiore observed "the inmates were not designated to their area.

They were all over.     They were all standing.     It was loud.    It was

chaotic."    Penninpede-Fiore and Sergeant James walked to the

different groups of inmates and asked them to sit down.                 She

believed they complied because of Sergeant James' presence.

     When appellant returned to work on November 7, 2013, his

supervisor   informed   him   an   investigation   of   his   actions   was

underway.    Sergeant James undertook this investigation of the

inmate's claims and found the fifty televisions and fifteen radios

in the adjacent unit's storage area.          He returned forty-three

televisions and twelve radios, which were improperly seized from

inmates who rightfully owned them.

     Lieutenant John Henderson, one of the second shift area

supervisors, testified appellant's actions constituted an unusual

event requiring his supervisor's approval.         He confirmed the mass

confiscation was not authorized by appellant's supervisor, was not

recorded on an incident report as required, was not listed in the



                                     5                             A-4150-14T4
requisite log books, and was not mentioned to his supervisor or

officers resuming duty on the next shift.

     On December 19, 2013, Garden State issued a Preliminary Notice

of Disciplinary Action to appellant.     The notice listed these

events as warranting discipline:

          On November 7, 2013[,] it was discovered that
          on November 6, 2013[,] you confiscated
          approximately fifty inmate televisions and
          fifteen radios without notifying your area
          supervisor, without completing the required
          paperwork, and with no written account of your
          actions.   You then stored the confiscated
          items in a storage closet on the adjoining
          housing unit. This was done during the time
          that a code 33 was in effect.     This action
          caused a disturbance during the TC counseling
          program on November 7, 2013[, which] may have
          caused injury to staff and destruction of
          state property.

     Appellant was suspended pending a Loudermill1 hearing for

conduct unbecoming a public employee, N.J.A.C. 4A:2-2.3(a)(6), and

other sufficient causes, N.J.A.C. 4A:2-2.3(a)(12), which included

noncompliance with N.J.A.C. 10A:3-6.1, regulations delineating

procedures for handling contraband.2   Further, the notice advised


1
     Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 105 S.
Ct. 1487, 84 L. Ed. 2d 494 (1985) (holding due process requires a
pretermination hearing to address charges affecting certain civil
servants' property interests in employment).
2
     The notice also identified specific violations of the DOC
Human Resources Bulletin 84-17 (Bulletin 84-17), including: a
serious mistake due to carelessness that may result in danger or


                                6                           A-4150-14T4
Garden State sought to terminate appellant's employment.                     The

preliminary         hearing   was   conducted,   even   though   appellant   was

absent.          Garden State suspended appellant without pay and served

a Final Notice of Major Disciplinary Action to remove appellant

from       his     employment.      Following    that   hearing,   appellant's

employment was terminated.

       Appellant appealed, and the matter was assigned to the Office

of Administrative Law for evidentiary review as a contested case.

Appellant and Garden State each presented witness testimony, along

with documentary evidence.            Following a four-day hearing, the ALJ

issued      a     recommendation,     concluding    appellant    committed   all

charges, and upheld his termination.               The Commission adopted the

ALJ's findings and accepted his conclusions as its final decision.

This appeal followed.

       A    "strong     presumption    of   reasonableness   attaches   to   the

actions of administrative agencies."                In re Carroll, 339 N.J.

Super. 429, 437 (App. Div.) (citation omitted), certif. denied,

170 N.J. 85 (2001).           Although we undertake an independent review,

                 [o]ur role in reviewing a final administrative
                 agency decision is limited. In re Taylor, 158
                 N.J. 644, 656 (1999).     We must defer to a

injury to persons or property (§ B.8); conduct unbecoming an
employee (§ C.11); violation of administrative procedures or
regulations involving safety and security (§ D.7); and violation
of a rule, regulation, policy, procedure, or administrative
decision (§ E.1).

                                            7                           A-4150-14T4
           final agency decision unless it is arbitrary,
           capricious,    unsupported   by    substantial
           credible evidence in the record, or in
           violation   of   the   express   or   implicit
           legislative policy. Id. at 656-57. We must
           determine whether an agency's findings could
           have been "'reached on sufficient credible
           evidence present in the record' considering
           'the proofs as a whole,' with due regard to
           the opportunity of the one who heard the
           witnesses to judge of their credibility." Id.
           at 656 (quoting Close v. Kordulak Bros., 44
           N.J. 589, 599 (1965)). If we find sufficient
           credible evidence in the record to support the
           agency's conclusions, then we must affirm even
           if we would have reached a different result.
           Clowes v. Terminix Int'l, Inc., 109 N.J. 575,
           588 (1988).

           [In re Frazier, 435 N.J. Super. 1, 6 (App.
           Div. 2014).]

     A   party   challenging   the   administrative   action   bears   the

burden to establish the agency did not follow the law; its decision

was arbitrary, capricious, or unreasonable; or its decision was

unsupported by substantial credible evidence in the record.             In

re Virtua-West Jersey Hosp. Voorhees, 194 N.J. 413, 422 (2008);

see also Twp. Pharmacy v. Div. of Med. Assistance and Health

Servs., 432 N.J. Super. 273, 283-84 (App. Div. 2013).             If the

record meets this standard, this court will set aside an agency

decision, which is clearly mistaken or erroneous.          L.M. v. Div.

of Med. Assistance & Health Servs., 140 N.J. 480, 490 (1995).




                                     8                           A-4150-14T4
     However, an agency's interpretation of a statute or any legal

determination is not accorded the same deference.                      Legal issues

are reviewed de novo.

     Appellant challenged the factual findings adopted by the

Commission, arguing the proofs did not support the conclusion his

conduct constituted the acts charged.                   Admitting he seized the

inmates'   electronics,      he   nevertheless      refutes      any    notion    his

actions were deliberate or inappropriate or his decision regarding

the seized items' storage left them open to theft.                      Finally, he

challenges Crespi's comments as an overreaction and argues the

resultant disquiet of the inmates during their morning counseling

was not akin to a riot.

     Public employee rights and duties are governed by the Civil

Service    Act,   N.J.S.A.   11A:1-1       to    -12.6.      A   public     employee

protected by the provisions of that Act may be subject to major

discipline for a wide variety of offenses connected to his or her

employment and the general causes for such discipline are set

forth in N.J.A.C. 4A:2-2.3(a), which provides, in pertinent part:

               (a) An employee             may     be     subject      to
            discipline for:

                  . . . .

            6. Conduct unbecoming a public employee;

                  . . . .


                                       9                                     A-4150-14T4
          12. Other sufficient cause.

     "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. City

of 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 him to

a higher standard of conduct than ordinary public employees.             In

re Phillips, 117 N.J. 567, 576-77 (1990).       This results because

corrections officers represent "law and order to the citizenry and

must present an image of personal integrity and dependability in

order to have the respect of the public."       Twp. of Moorestown v.

Armstrong, 89 N.J. Super. 560, 566 (App. Div. 1965), certif.

denied, 47 N.J. 80 (1966).

     Appellant has also been charged with violating N.J.A.C. 4A:2-

2.3(a)(12), "Other sufficient cause."        Although general, this

provision applies to conduct that violates the implicit standard

of good behavior that devolves upon one who stands in the public

eye as an upholder of that which is morally and legally correct.

                                  10                              A-4150-14T4
As noted above, Garden State cited four provisions of Bulletin 84-

17 as constituting the basis for this charge.

     DOC    regulations    govern    the   procedure    followed    when     a

corrections officer seizes contraband.        These include: the officer

must give the inmate a receipt for the seized item, N.J.A.C. 10A:3-

6.1(a)(3); before the officer's shift ends, the officer must give

the contraband to his supervising officer along with a record of

its chain of possession, N.J.A.C. 10A:3-6.1(a)(1) to (2); and the

supervising officer must store the contraband with the Special

Investigations Division or the correctional facility's Central

Control, N.J.A.C. 10A:3-6.1(c).

     The record supports appellant's failure to comply with the

designated process.   We reject, as specious, his claim taking the

televisions and radios was "a valid exercise of discretion" and

not a seizure of contraband.        R. 2:11-3(e)(1)(E).

     Appellant   suggests    his    investigation      was   not   completed

because his shift ended, he had not cited any inmate, and fully

intended to inform his supervisor when he concluded his review.

Further, he did not believe it necessary to make any record in the

log books prior to completing the investigation.                Ironically,

appellant   asserts   an   inmate's      possession    of    electronics    is

permitted but "protocol must be followed," while suggesting his

decisions were acceptable practice even if "his actions may not

                                    11                               A-4150-14T4
have comported with the official procedures or protocols . . . ."

Appellant    also   justifies   his   actions,   noting   no   disruption

occurred that evening.     We reject each of his suggestions.

     The facts adopted by the Commission were as follows:

            [A]ppellant's action was a serious mistake as
            the improper confiscation of so many items
            created a hostile environment[,] which led to
            a mass inmate protest. . . .            [T]hat
            appellant's conduct was unbecoming to a public
            employee since that conduct amounted to
            inappropriately taking personal property from
            the inmates and putting that property in and
            unsecured location subject to theft. . . .
            [A]ppellant violated the facility procedures
            and in doing so created a situation where
            safety of inmates, corrections personnel and
            civilians was put at risk because of the mass
            confiscation of electronics initiated by
            . . . appellant created a hostile environment
            and large inmate unrest.

     Appellant's actions of appropriating all televisions and

radios of every inmate in his unit, without determining if they

were contraband, is neither authorized nor permitted.              Strict

compliance with the process and procedures created to address this

issue is required to protect the safety and security of the

institution, as well as to protect inmates' property rights.

Importantly, appellant did not advise supervisors or other shift

officers of his actions, denying them the opportunity to prepare

for resultant unrest.




                                  12                              A-4150-14T4
      Appellant's challenge to the factual findings because the

record contains no proof the taken electronics were unsecured begs

the question.    The inmate property was taken and placed outside

the unit, without compliance with policies or procedures required

by the facility.   We also reject appellant's reliance on testimony

offered by other corrections officers, which minimized the event

and appellant's actions.       As Lieutenant Henderson explained, the

therapeutic counseling unit inmates are more volatile than those

in other units because of the circumstances they face.           Further,

the   agitated   and   angry   group    counseling   session   could   have

escalated into a riot had the morning personnel not acted as

"phenomenally" as they had.

      Maintenance of strict discipline is important in military-

like settings such as prisons and correctional facilities.          Rivell

v. Civil Serv. Comm'n, 115 N.J. Super. 64, 72 (App. Div.), certif.

denied, 59 N.J. 269 (1971).      Thus, strict adherence to procedures

developed and published by the DOC is necessary to maintain

control.   This court has underscored:

           The need for proper control over the conduct
           of inmates in a correctional facility and the
           part played by proper relationships between
           those who are required to maintain order and
           enforce discipline and the inmates cannot be
           doubted.   We can take judicial notice that
           such facilities, if not properly operated,
           have a capacity to become "tinderboxes."


                                   13                              A-4150-14T4
             [Bowden v. Bayside State Prison, 268 N.J.
             Super. 301, 305-06 (App. Div. 1993), certif.
             denied, 135 N.J. 469 (1994).]

      We conclude appellant's factual challenges lack merit.                      R.

2:3-11(e)(1)(E).         His actions were not justified or acceptable,

but rather adversely affected the morale and efficiency of the

correctional facility and had the "tendency to destroy public

respect     for    [public]   employees       and   public    confidence   in    the

operation of" the correctional facility.               Karins, supra, 152 N.J.

at   557.       The    Commission's     findings    that     appellant's   conduct

violated N.J.A.C. 4A:2-2.3 (a)(6) and (12), along with the policies

adopted in Bulletin 87-17, are amply supported by the record

evidence.

      Next,     appellant     argues    the    Commission     erred   because   his

termination was not warranted by the disciplinary infractions.                    We

disagree.

      "A reviewing court 'may not substitute its own judgment for

the agency's, even though the court might have reached a different

result.'"       In re Stallworth, 208 N.J. 182, 194 (2011) (quoting In

re Carter, 191 N.J. 474, 483 (2007) (citations omitted)).                       This

court     has     no   authority   to    act    independently,        particularly

regarding an issue directed to the agency's special "expertise and

superior knowledge of a particular field."                   In re Herrmann, 192

N.J. 19, 28 (2007).           This deferential standard applies to our

                                         14                                A-4150-14T4
review of a challenge to an issued disciplinary sanction.                Ibid.

"Accordingly, when reviewing administrative sanctions, appellate

courts      should     consider     whether    the     'punishment     is     so

disproportionate to the offense, in the light of all of the

circumstances, as to be shocking to one's sense of fairness.'"

Stallworth, supra, 208 N.J. at 195 (quoting Carter, supra, 191

N.J. at 484).

      Appellant's argument suggests he was "just doing his job,"

and   the    infraction    he     committed   was    merely   not   completing

paperwork.     He also points to the limited disciplinary sanction

issued to his co-employee who assisted him in the confiscation and

storage of the electronics.          These contentions completely ignore

the facts.

      No emergency resulted because some inmates possibly possessed

a television or radio that was not documented as his own.                While

such an instance required the inmate to be cited for possession

of contraband, no danger was posed by allowing possession to

continue, pending appellant's strict compliance with requisite

procedures.     In contrast, the mass seizure of all electronics

without regard to rightful proof of possession, on the hunch some

of the items may qualify as contraband, is neither warranted nor

sanctioned.      The    resultant    unrest   and    protest,   when   inmates

gathered and discussed appellant's misguided attempt to enforce

                                       15                              A-4150-14T4
television and radio protocol, posed a significant security and

safety risk, which could have been catastrophic.

     Appellant's     argument       that    the     sanction   of    termination

deviated from the expectations of progressive discipline is also

rejected.    A single egregious act may justify termination.                    See

Stallworth, supra, 208 N.J. at 196.           "[P]rogressive discipline has

been bypassed when an employee engages in severe misconduct,

especially when the employee's position involves public safety and

the misconduct causes risk of harm to persons or property."                       In

re Herrmann, supra, 192 N.J. at 33.

     In its review, the Commission's adopted factual findings

noted appellant's prior record, which included a 2009 disciplinary

sanction and 120-day suspension when he failed to secure cell

doors, allowing one inmate to enter another's cell and commit an

assault.     However,     that      offense   was    not   weighed    in    meting

appellant's sanction because the present offenses were determined

sufficiently egregious to warrant termination.                 The Commission

reviewed the current infractions, considered appellant's work

record,    and   chose   not   to    modify   the    recommended     penalty      of

termination.

     This court exercises a limited role in reviewing Commission

sanction decisions.       Stallworth, supra, 208 N.J. at 194.                  This

court may reverse the agency's decision only if it was "arbitrary,

                                       16                                  A-4150-14T4
capricious, or unreasonable, or . . . not supported by substantial

credible evidence in the record as a whole."        Ibid. (quoting Henry

v.   Rahway   State   Prison,   81   N.J.   571,   579-80   (1980)).     In

particular, this court may not substitute its judgment for that

of the Commission in determining whether a particular sanction is

warranted.    Id. at 194-95.    This court may intervene only if the

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

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

fairness."    Id. at 195 (quoting In re Carter, supra, 191 N.J. at

484).   We conclude it does not.

      In light of this authority, the sanction is neither illegal

nor unreasonable.      We discern no basis to interfere with the

propriety of the issued sanction.

      Affirmed.




                                     17                           A-4150-14T4
