                            NOT FOR PUBLICATION WITHOUT THE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-5006-17T3

IN THE MATTER OF DANIEL
PURDY, CAMDEN COUNTY
CORRECTIONAL FACILITY
__________________________

                Submitted May 28, 2020 – Decided June 12, 2020

                Before Judges Fuentes, Haas and Enright.

                On appeal from the New Jersey Civil Service
                Commission, Docket No. 2015-2646.

                Alterman & Associates LLC, attorneys for appellant
                Daniel Purdy (Stuart J. Alterman, of counsel; Arthur J.
                Murray, on the brief).

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

                Gurbir S. Grewal, Attorney General, attorney for
                respondent New Jersey Civil Service Commission
                (George Norman Cohen, on the statement in lieu of
                brief).

PER CURIAM
      Appellant Daniel Purdy appeals from the May 25, 2018 final

administrative decision of the Civil Service Commission (Commission) that

upheld action taken by Purdy's employer, the Camden County Correctional

Facility (CCCF), to terminate Purdy's employment as a county correction officer

based on charges that he engaged in conduct unbecoming a public employee;

insubordination; inability to perform duties; neglect of duty; discrimination that

affects equal employment; and other sufficient causes, including violations of

the CCCF Rules of Conduct. We affirm.

      The procedural history and facts of this case are fully set forth in the April

6, 2018 Initial Decision rendered by the Administrative Law Judge (ALJ)

following a four-day hearing. The Commission adopted these findings in its

final decision and, therefore, we need only briefly summarize them here.

      The CCCF's rules prohibit correction officers like Purdy from possessing

or using personal cell phones in the secure areas of the facility. Purdy was aware

of these prohibitions.

      While investigating possible misconduct by other correction officers in

December 2014, the CCCF's Internal Affairs Unit discovered that one of the

officers was in possession of two cell phones. The officer consented to a search

of the phones, which revealed that between September 30, 2014 and December


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28, 2014, Purdy and other officers smuggled personal cell phones into the secure

areas of the facility, and exchanged approximately 5800 text messages during

two separate group text chains. Some of these messages contained photographs

of inmates and computer screens displaying confidential information.

      The ALJ examined all of the messages sent by Purdy and the other officers

and found that the message chains contained "multiple derogatory,

inappropriate[,] and racist text messages" referring to inmates, co-workers, and

supervisors. Purdy was responsible for writing and sending 461 of the texts, and

the ALJ found that the following ten texts were representative of the extremely

inappropriate nature of his communications:

            -     "Happy Born day nigga"

            -     "That one smooth ape over-paid nigga" (referring
                  to . . . the Warden's assistant)

            -     [Purdy] posted a picture of a white male wearing
                  a red shirt with an American flag stating "I like
                  shooting cans, Mexican, Africans, um Puerto
                  Ricans"

            -     "How many years that crazy nig got"

            -     "sleepy nigga" (referring to [the Warden])

            -     "Nah, that spook at home making stuffed shells"

            -     [Purdy] posted a picture providing information
                  regarding "White European Pride" with a link to

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                                       3
                   an organization called "The Advanced White
                   Society"

            -      [Purdy] posted that he wanted to "curb stomp"
                   one of his supervising officers

            -      [Purdy] called . . . [the] Warden . . . who is
                   Hispanic, "Dora the Explorer"

            -      [Purdy] made a comment about a female co-
                   worker "They calling her a dusty coon . . . um
                   . . . negress something about her hair . . . it was
                   like a jailhouse mop"

      Purdy did not dispute that he authored or received the messages found on

the text chains, although he stated that only 39 of the 461 messages he wrote

were sent while on duty. He also acknowledged he should be disciplined, but

argued that removal from employment was too severe a penalty. Purdy also

claimed he had a First Amendment right to make the comments he did.

      In a thorough initial decision, the ALJ rejected Purdy's arguments,

sustained all of the charges against him, and recommended that Purdy be

removed from employment. As for Purdy's First Amendment claim, the ALJ

first found that regardless of the racist content of the text messages, Purdy still

brought an unauthorized cell phone into the secure areas of the CCCF, was aware

that the messages he exchanged and received contained photographs of inmates

and confidential computer screens, and failed to report this misconduct, in


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                                        4
violation of the facility's rules. The ALJ concluded that Purdy's actions in this

regard clearly warranted his removal from employment.

      Relying on Karins v. Atlantic City, 152 N.J. 532 (1998), the ALJ further

found that Purdy's "speech cannot be characterized as constituting speech on a

matter of public concern and that the State's interest in promoting the efficiency

of the public service it performs through its employees [outweighed Purdy's]

interest in making these racist and derogatory comments." Therefore, the ALJ

found that Purdy's attempted First Amendment "defense" lacked merit.

      The ALJ concluded that Purdy's conduct was so egregious that progressive

discipline did not need to be considered, and that his removal from employment

was warranted. The ALJ explained:

            The public who is served, and other employees, deserve
            to be able to expect that those individuals that exercise
            control over and interact with them will not make them
            targets of inappropriate, derogatory, and racist chats.
            To expect otherwise is to invite disorder and confusion
            in responding to certain functions within the jail,
            possibly leading to worse, more dangerous situations,
            and serves to undermine the confidence the public
            places in the correctional system. It cannot be
            tolerated.

This appeal followed.

      On appeal, Purdy again argues that he had a First Amendment right to

send racist text messages on an unauthorized cell phone he improperly brought

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                                        5
into the secure areas of a correctional institution. He also asserts he should not

have been found guilty of the discrimination that affects equal employment

charge because no one had brought a claim against him under the Law Against

Discrimination (LAD), N.J.S.A. 10:5-1 to -49. Finally, Purdy contends that the

evidence does not support the Commission's decision to remove him from

employment. We disagree.

      Established precedents guide our task on appeal. Our scope of review of

an administrative agency's final determination is limited. In re Herrmann, 192

N.J. 19, 27 (2007). "[A] 'strong presumption of reasonableness attaches'" to the

agency's decision. In re Carroll, 339 N.J. Super. 429, 437 (App. Div. 2001)

(quoting In re Vey, 272 N.J. Super. 199, 205 (App. Div. 1993)). Additionally,

we give "due regard to the opportunity of the one who heard the witnesses to

judge . . . their credibility." In re Taylor, 158 N.J. 644, 656 (1999) (quoting

Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)).

      The burden is upon the appellant to demonstrate grounds for reversal.

McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 563 (App. Div. 2002);

see also Bowden v. Bayside State Prison, 268 N.J. Super. 301, 304 (App. Div.

1993) (holding that "[t]he burden of showing the agency's action was arbitrary,

unreasonable[,] or capricious rests upon the appellant"). To that end, we will


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                                        6
"not disturb an administrative agency's determinations or findings unless there

is a clear showing that (1) the agency did not follow the law; (2) the decision

was arbitrary, capricious, or unreasonable; or (3) the decision was not supported

by substantial evidence."     In re Application of Virtua-West Jersey Hosp.

Voorhees for a Certificate of Need, 194 N.J. 413, 422 (2008).

      When an agency decision satisfies such criteria, we accord substantial

deference to the agency's fact-finding and legal conclusions, acknowledging

"the agency's 'expertise and superior knowledge of a particular field.'" Circus

Liquors, Inc. v. Governing Body of Middletown Twp., 199 N.J. 1, 10 (2009)

(quoting Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992)).

We will not substitute our judgment for the agency's even though we might have

reached a different conclusion. In re Stallworth, 208 N.J. 182, 194 (2011); see

also Taylor, 158 N.J. at 656-57 (discussing the narrow appellate standard of

review for administrative matters).

      Our deference to agency decisions "applies to the review of disciplinary

sanctions as well." Herrmann, 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


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                                        7
(alteration in original) (quoting In re Polk, 90 N.J. 550, 578 (1982)). "The

threshold of 'shocking' the court's sense of fairness is a difficult one, not met

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

      Applying these principles here, we discern no basis for disturbing the

Commission's decision to remove Purdy from employment. The Commission's

decision is supported by substantial credible evidence in the record. Purdy

violated the CCCF's rules by bringing a personal cell phone into the secure areas

of the facility, where he used it to exchange racist text messages, photographs

of inmates, and confidential information obtained from computers. As our

Supreme Court held over twenty years ago, conduct of this nature is simply not

protected by the First Amendment. Karins, 152 N.J. at 563.

      The Commission also properly adopted the ALJ's conclusion that Purdy

violated N.J.A.C. 4A:2-2.3(a)(9), which states that a public employee may be

"subject to discipline for . . . [d]iscrimination that affects equal employment

opportunity[.]"   Contrary to Purdy's unsupported contention, evidence of a

cognizable claim against a public employee for a violation of the LAD is not

required to support a finding of guilt under the regulation. See Karins, 152 N.J.

at 561-62 (stating that "[i]n a disciplinary case such as this one, it is not

necessary 'for an employer to allow events to unfold to the extent that the


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                                       8
disruption of the office and the destruction of working relationships is manifest

before taking action'") (quoting Connick v. Myers, 461 U.S. 138, 152 (1983)).

      Finally, the Commission's decision to impose the penalty of removal is

certainly not "so disproportionate to the offense, in light of all the circumstances,

as to be shocking to one's sense of fairness." Hermann, 192 N.J. at 28-29. We

therefore affirm substantially for the reasons expressed by the Commission,

which incorporated the detailed findings of fact and conclusions of law rendered

by the ALJ in his well-reasoned written opinion.

      Affirmed.




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