                     NOT FOR PUBLICATION WITHOUT THE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-1899-15T1

IN THE MATTER OF TAKIA JOHNSON,
CAMDEN COUNTY DEPARTMENT OF
CORRECTIONS.
_________________________________

           Submitted May 2, 2017 – Decided May 15, 2017

           Before Judges Ostrer and Vernoia.

           On appeal from the Civil Service Commission,
           Docket No. 2015-3106.

           William B. Hildebrand, attorney for appellant
           Takia Johnson.

           Christopher A. Orlando, County Counsel,
           attorney   for   respondent    Camden   County
           Department of Corrections (Howard L. Goldberg,
           First Assistant County Counsel, and Antonieta
           Paiva Rinaldi, Assistant County Counsel, on
           the brief).

           Christopher S. Porrino, 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

     Appellant      Takia     Johnson     appeals     the     Civil    Service

Commission's (Commission) final agency decision finding the Camden
County   Department    of   Corrections        (CCDC)1   properly   removed

appellant from her position as a county corrections officer for

insubordination, conduct unbecoming a public employee, neglect of

duty, and other sufficient cause including violations of CCDC's

rules and regulations. We reject appellant's argument that the

sanction of removal was excessive, and affirm.

                                         I.

     CCDC hired appellant as a county corrections officer in 2003.

During the course of an investigation of officer Michael Jacob's

possession of cell phones in the Camden County jail, the CCDC's

internal affairs unit discovered numerous text messages exchanged

between Jacob and appellant while appellant was on-duty.

     Appellant   was   interviewed       and   acknowledged   bringing   her

cellphone into the jail and using it to send messages, make phone

calls, and send pictures to Jacob while she was on duty. She

admitted possessing and using her cellphone while on duty with

prisoners at the hospital. In addition, she explained she took a

photograph with her phone of another officer's naked buttocks

without his knowledge while they were on duty at the hospital, and

sent the photograph to Jacob. She also admitted knowing it was a

violation of CCDC's policy to bring a cellphone into the jail and


1 The CCDC is also occasionally referred to in the record as the
Camden County Correctional Facility.

                                     2                              A-1899-15T1
to the hospital while on duty, and that doing so constituted a

breach of security.

     On January 26, 2015, CCDC issued a preliminary notice of

disciplinary    action   for     removal,    charging     appellant        with:

insubordination, N.J.A.C. 4A:2-2.3(a)(2); conduct unbecoming a

public   employee,    N.J.A.C.    4A:2-2.3(a)(6);        neglect   of      duty,

N.J.S.A. 4A:2-2.3(a)(7); other sufficient cause, N.J.S.A. 4A:2-

2.3(a)(12); and violations of various CCDC policies and rules.

Following   a   departmental   hearing,     the   CCDC   removed    appellant

effective June 29, 2015.

     Appellant appealed, and the Commission referred the matter

to the Office of Administrative Law. A hearing was conducted before

an Administrative Law Judge (ALJ) who issued an initial written

decision sustaining each of the charges and CCDC's decision to

remove   appellant.   Appellant     filed    exceptions      to    the     ALJ's

decision. On December 18, 2015, the Commission issued its final

decision adopting the findings and conclusions of the ALJ and

determining CCDC's removal of appellant was justified. This appeal

followed.

     On appeal, appellant argues:

            Point I

            REMOVAL IS TOO HARSH A PENALTY FOR A CELL PHONE
            VIOLATION.


                                     3                                   A-1899-15T1
                                         II.

      Our role in reviewing the Commission's decision is limited.

In   re   Stallworth,   208   N.J.   182,      194   (2011).   "[A]   'strong

presumption of reasonableness attaches to [an agency decision].'"

In re Carroll, 339 N.J. Super. 429, 437 (App. Div.) (quoting In

re Vey, 272 N.J. Super. 199, 205 (App. Div. 1993), aff'd, 135 N.J.

306 (1994)), certif. denied, 170 N.J. 85 (2001). We "may not

substitute [our] own judgment for the agency's, even though [we]

might have reached a different result." Stallworth, supra, 208

N.J. at 194 (quoting In re Carter, 191 N.J. 474, 483 (2007)).

"This is particularly true when the issue under review is directed

to the agency's special 'expertise and superior knowledge of a

particular field.'" Id. at 195 (quoting In re Herrmann, 192 N.J.

19, 28 (2007)).

      Our deference to agency decisions "applies to the review of

disciplinary sanctions as well." Herrmann, supra, 192 N.J. at 28.

"In light of the deference owed to such determinations, when

reviewing administrative sanctions, 'the test . . . is "whether

such punishment is so disproportionate to the offense, in light

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

fairness."'" Id. at 28-29 (alteration in original) (quoting In re

Polk, 90 N.J. 550, 578 (1982)). "The threshold of 'shocking' the



                                     4                                A-1899-15T1
court's sense of fairness is a difficult one, not met whenever the

court would have reached a different result." Id. at 29.

     "In order to reverse an agency's judgment, [we] 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 (second alteration

in original) (quoting Henry v. Rahway State Prison, 81 N.J. 571,

579-80 (1980)). To determine whether an agency action is arbitrary,

capricious, or unreasonable, we must examine

          (1) whether the agency's action violates
          express or implied legislative policies, that
          is, did the agency follow the law; (2) whether
          the record contains substantial evidence to
          support the findings on which the agency based
          its action; and (3) whether in applying the
          legislative policies to the facts, the agency
          clearly erred in reaching a conclusion that
          could not reasonably have been made on a
          showing     of    the    relevant     factors.

          [Ibid. (quoting Carter, supra, 191 N.J. at
          482-83).]

The findings of fact made by an administrative agency are binding

on appeal if they are supported by "sufficient credible evidence."

In re Taylor, 158 N.J. 644, 656-57 (1999). We are not however

bound by the agency's legal conclusions, which we review de novo.

A.B. v. Div. of Med. Assistance & Health Servs., 407 N.J. Super.

330, 340 (App. Div.), certif. denied, 200 N.J. 210 (2009).



                                5                            A-1899-15T1
       Applying these principles, we are satisfied there is no basis

to    reverse   the   Commission's      decision      sustaining         appellant's

removal. She contends that removal is excessive because the CCDC

and    Commission     failed    to    employ    principles        of     progressive

discipline. She argues this was her first offense for improper use

of a cell phone and that, although what she did was wrong, it was

not sufficiently egregious to warrant her removal.

       The concept of progressive discipline has been employed in

two ways: "(1) to 'ratchet-up' or 'support imposition of a more

severe penalty for a public employee who engages in habitual

misconduct'; and (2)'to mitigate the penalty' for an employee who

has   a   record   largely     unblemished     by    significant        disciplinary

infractions."      Stallworth,       supra,    208    N.J.   at        196   (quoting

Herrmann, supra, 192 N.J. at 30-33). Progressive discipline is

not, however, "'a fixed and immutable rule to be followed without

question,' because 'some disciplinary infractions are so serious

that removal is appropriate notwithstanding a largely unblemished

record.'" Ibid. (quoting Carter, supra, 191 N.J. at 484). For

example,    "progressive       discipline      has   been    bypassed        when     an

employee    engages    in    severe    misconduct,      especially           when   the

employee's position involves public safety and the misconduct

causes a risk of harm to persons or property." Herrmann, supra,

192 N.J. at 33.

                                        6                                      A-1899-15T1
     Here,    appellant    engaged    in        an   ongoing,   knowing,       and

intentional violation of the CCDC's rules while on duty, which,

as the ALJ recognized, "compromised the security and functioning

of the correctional facility, [and] jeopardized the safety of

fellow staff members." While on duty, she also photographed a

partially naked fellow officer without his knowledge and sent the

photograph to Jacob. Thus, we discern no abuse of discretion in

the Commission's conclusion that the egregiousness of appellant's

conduct alone warranted her removal. Ibid.

     Moreover,     the    record   shows        appellant    received      formal

discipline seventeen times for offenses including neglect of duty,

abuse of position, conduct unbecoming a public employee, and

insubordination.    She    received       two    verbal     reprimands,     three

reprimands, five "day fine(s)," and eight separate suspensions of

between two and ninety days. Thus, the Commission's reliance on

appellant's history of habitual misconduct is consistent with

notion of progressive discipline, Stallworth, supra, 208 N.J. at

196, and its decision sustaining her removal is not an abuse of

discretion.

     Affirmed.




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