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                           APPROVAL OF THE APPELLATE DIVISION
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                                                     SUPERIOR COURT OF NEW JERSEY
                                                     APPELLATE DIVISION
                                                     DOCKET NO. A-0981-17T2

IN THE MATTER OF STEVEN
HOTZ, NEW JERSEY
DEPARTMENT OF
CORRECTIONS.
______________________________

                Argued January 28, 2020 – Decided February 13, 2020

                Before Judges Yannotti, Currier and Firko.

                On appeal from the New Jersey Civil Service
                Commission, Docket No. 2017-1342.

                Joseph Stanley Surman, Jr., argued the cause for
                appellant Steven Hotz (Surman Law, LLC, attorneys;
                David J. Heintjes, of counsel and on the brief).

                Emily Marie Bisnauth, Deputy Attorney General,
                argued the cause for respondent New Jersey
                Department of Corrections (Gurbir S. Grewal, Attorney
                General, attorney; Melissa Dutton Schaffer, Assistant
                Attorney General, of counsel; Emily Marie Bisnauth,
                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

         Steven Hotz appeals from a final determination of the Civil Service

Commission (Commission), which found that he made false statements of

material fact during an investigation of suspected inmate abuse, and that the

New Jersey Department of Corrections (NJDOC) was justified in removing him

from his position as a Senior Corrections Officer (SCO). We affirm.

                                        I.

         On November 10, 2015, an inmate at the NJDOC's Garden State Youth

Correctional Facility (GSCF) reported he had been physically abused by several

corrections officers.     The NJDOC referred the matter to the Special

Investigations Division (SID) for review. The inmate told the SID investigators

that on November 6, 2015, several custody staff members entered the staff

barbershop in the GSCF where he was working and ordered the other inmates to

leave.

         According to the inmate, the officers punched him and held him down,

and an officer cut off his hair using electric clippers. The inmate claimed the

officers retaliated because he had allegedly given another officer a "bad" haircut.

The inmate identified appellant as one of the officers who was present during




                                                                           A-0981-17T2
                                        2
the incident. The NJDOC transferred appellant to another facility while the

complaint was investigated.

      On March 11, 2016, a SID investigator interviewed appellant. He denied

knowledge of the incident and stated he was unfamiliar with the inmate who

made the complaint. He said that to the best of his knowledge, the incident did

not occur. Appellant suggested someone may have falsely implicated him. He

claimed, "I have been lied on before."

      Furthermore, in response to the investigator's questions, appellant denied

that on November 6, 2015, SCO Ivonne Collazo contacted him by radio and

requested that he come to the barbershop or its vicinity. He denied that he

forcibly placed the inmate in the barber chair or saw SCO Brian Attardi do so.

He also denied seeing Collazo cut the inmate's hair with clippers.

      On April 15, 2016, the NJDOC issued a Preliminary Notice of

Disciplinary Action (PNDA), which charged appellant with engaging in

"[c]onduct unbecoming of a public employee[,]" in violation of N.J.A.C. 4A:2 -

2.3; physical or mental abuse of an inmate; and violating an applicable NJDOC

rule, regulation, policy, or procedure. On April 22, 2016, the NJDOC held a

departmental hearing and found there was sufficient evidence to support the

charges. The NJDOC suspended appellant without pay, effective immediately.


                                                                        A-0981-17T2
                                         3
      On May 26, 2016, a SID investigator interviewed appellant a second time.

He admitted that during the interview on March 11, 2016, he made false

statements about the incident. He said he was in the barbershop on November

6, 2015, and he was familiar with the inmate who made the complaint. He stated

that Collazzo had called him on the radio and asked him to report to GSCF's

reception area. When he arrived at that location, Collazo directed him to enter

the barbershop.

      Appellant stated that he entered the barbershop and observed Attardi, who

was face-to-face with the inmate. They appeared to be arguing. When the

inmate raised his left arm, appellant grabbed it, and Attardi grabbed the inmate's

right arm. Appellant and Attardi then placed the inmate in the chair. Appellant

stated that immediately thereafter, Collazzo approached the inmate from behind

and "buzzed his head with the clippers . . . ."

      Appellant said he was surprised when Collazzo cut the inmate's hair, and

he asked SCO Jason M. Terhune, who was present at the time getting a haircut,

"What the fuck is this about?" Appellant said Terhune shrugged. Appellant

then left the barbershop. He stated that he had no idea what he was walking into

when he entered the barbershop. Appellant denied he or Attardi physically

assaulted the inmate.


                                                                          A-0981-17T2
                                         4
      Appellant also stated that he decided to come forward with the truth at the

second interview because he did not know how to address the matter initially.

He said he wanted to do the right thing. He claimed others had told him not to

say anything and to "just play ball . . . ."

      Appellant stated that Collazzo told him she had spoken to a superior

officer, who said she should do what she is supposed to do "and it will go away."

According to appellant, Collazo stated he would be transferred to another

facility for a maximum of six months, after which he would be returned to

GSCF.

      On July 8, 2016, the NJDOC amended the PNDA and charged appellant

with falsification, in violation of the applicable NJDOC rules, policies, and

procedures. The amended PNDA stated that under these rules, policies, and

procedures, "falsification" is defined as an "[i]ntentional misstatement of

material fact in connection with work, employment, application, attendant, or in

any record, report[,] investigation or other proceeding."

      On September 30, 2016, the NJDOC issued a Final Notification of

Disciplinary Action (FNDA), finding that the charges had been sustained. The

FNDA stated that in November 2016,

             an incident occurred wherein physical force was used
             against an inmate. This action led to an SID

                                                                         A-0981-17T2
                                          5
              investigation that revealed the following. Officer
              Steven Hotz was one of [three] [o]fficers who . . .
              physically abuse[d] the inmate in the [GSCF s]taff
              [b]arbershop; specifically, by holding him down in the
              barber chair, punching and slapping him, and cutting
              his hair off. This constitutes conduct unbecoming,
              physical abuse of an inmate, and a violation of law
              enforcement rules, policies and procedures. Total
              disregard was given as it pertains to the policy as set
              forth in the Law Enforcement Officers Handbook as
              well as the NJDOC employee handbook. Additionally,
              SCO Hotz provide[d] a supplemental interview with the
              NJDOC Internal Affairs Units, in which he admitted to
              providing false information during the initial interview.

The NJDOC removed appellant from his position as SCO, effective October 7,

2016.

        On October 22, 2016, appellant filed an administrative appeal challenging

the NJDOC's action, and the Commission referred the matter to the Office of

Administrative Law (OAL) for an evidentiary hearing before an Administrative

Law Judge (ALJ). The NJDOC thereafter filed a motion pursuant to N.J.A.C.

1:1-12.5 for partial summary decision on the falsification charge. Appellant

opposed the NJDOC's motion and filed a cross-motion for summary decision.

        Appellant argued, among other contentions, that the NJDOC failed to file

the falsification charge within the time required by N.J.S.A. 30:4-3.11a. The

statute provides in pertinent part that a person may not be removed, suspended,

fired, or reduced in rank from employment as a State corrections officer for a

                                                                          A-0981-17T2
                                         6
violation of the NJDOC's internal rules and regulations unless the complaint

charging the violation is filed within forty-five days "after the date on which the

person filing the complaint obtained sufficient information to file the matter

upon which the complaint is based." Ibid.

      On March 24, 2017, the ALJ issued an order, which granted the NJDOC's

motion and denied appellant's cross-motion. The ALJ found there was no

substantial controversy as to whether appellant: (1) lied in the March 11, 2016

interview when he denied any knowledge of the November 6, 2015 incident at

the barbershop; (2) insisted he was not present during the incident; and (3)

asserted he played no part in the abuse of the inmate.

      The ALJ noted that he had reviewed the video recordings of appellant's

March 11, 2016 and May 26, 2016 interviews. The ALJ found that appellant

knew the statements he made during the first interview were false. The ALJ

rejected appellant's claim that he did not understand the content of his false

statements, and his assertion that the March 11, 2016 interview was

constitutionally deficient. The ALJ also rejected appellant's contention that he

was entitled to summary decision because the NJDOC did not submit an

affidavit when it opposed his cross-motion.




                                                                           A-0981-17T2
                                        7
      The ALJ further found there was a genuine issue of material fact as to

whether the NJDOC filed the charges within the time required by N.J.S.A. 30:4-

3.11a, and that issue would be resolved after an evidentiary hearing. The ALJ

stated that the merits of the remaining charges and the penalty for falsification

also would be determined after the evidentiary hearing.

      The ALJ conducted the hearing on March 29, 2017. Thereafter, the ALJ

issued an initial decision finding the NJDOC had not established that appellant

physically abused the inmate.      The ALJ stated that Terhune corroborated

appellant's claim that he had been confused when Collazo cut the inmate's hair.

The ALJ also found Terhune testified credibly that he did not see appellant or

Attardi strike the inmate.

      In addition, the ALJ rejected appellant's contention that the falsification

charge was time-barred, noting that appellant's "falsification was apparent at the

earliest only after the May 26, 2016" interview. The ALJ decided that the

NJDOC had filed the falsification charge within forty-five days after that

interview, as required by N.J.S.A. 30:4-3.11a.

       The ALJ further found that the NJDOC's decision to remove appellant

from his employment was appropriate. The ALJ stated:

            Falsification in the setting of a correctional facility such
            as [GSCF] strikes at the heart of a correction officer's

                                                                           A-0981-17T2
                                         8
              responsibility and accountability. [The officer] is an
              integral actor in a paramilitary organization, subject to
              its regulatory code and the orders of superiors.
              Superior officers must depend on the honesty of their
              subordinates to maintain good order in a dangerous
              environment. Fellow correction officers must have
              confidence that they can rely on the truth of information
              dispensed by their colleague[s]. Such certainty is
              essential. It is fundamental to secure law enforcement
              cooperation during those work demands which place at
              risk officer and inmate safety. [Appellant's]
              demonstrated dishonesty threatens this arrangement.
              For all these reasons, termination is appropriate.

         Appellant filed exceptions to the ALJ's decision, and the NJDOC filed a

response. The Commission thereafter issued its final determination adopting the

ALJ's decision. The Commission rejected appellant's claim that the NJDOC

failed to file the falsification charge within the time prescribed by N.J.S.A. 30:4-

3.11a.

         The Commission also determined that the ALJ properly decided the merits

of the falsification charge by summary decision and rejected appellant's claim

that the March 11, 2016 interview was constitutionally deficient.               The

Commission found that the penalty of removal was appropriate, and stated that

"the egregiousness of . . . appellant's misconduct clearly warrants" termination.

This appeal followed.

                                         II.


                                                                            A-0981-17T2
                                         9
      On appeal, appellant argues: (1) his removal based on the falsification

charge must be reversed pursuant to N.J.S.A. 30:4-3.11a; (2) the Commission

erred as a matter of law by adopting the ALJ's initial decision; (3) the

Commission's decision is arbitrary, capricious, against the weight of the

evidence, and contrary to law; (4) the March 11, 2016 interview cannot be the

basis for discipline because the interview was "constitutionally offensive" and

contrary to the Attorney General's Guidelines pertaining to investigations of law

enforcement employees; (5) the NJDOC failed to establish just cause for the

discipline imposed; and (6) the penalty of removal is excessive.

      Initially, we note that the scope of our review of a final determination of

an administrative agency 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). We may "intervene

only in those rare circumstances in which an agency action is clearly

inconsistent with its statutory mission or other State policy." George Harms

Constr. Co. v. N.J. Tpk. Auth., 137 N.J. 8, 27 (1994).

      Therefore, we will "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


                                                                          A-0981-17T2
                                       10
decision was not supported by substantial evidence." In re Virtua-West Jersey

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

Herrmann, 192 N.J. at 28); see also Circus Liquors, Inc. v. Governing Body of

Middletown Twp., 199 N.J. 1, 9-10 (2009).

                                       III.

        Appellant first argues that the Commission erred by finding that the

NJDOC filed the falsification charge within the time prescribed by N.J.S.A.

30:4-3.11a. As we stated previously, the statute provides that a State corrections

officer may not be removed from employment, suspended, fined, or reduced in

rank based on a violation of the NJDOC's internal rules and regulations

governing the conduct of its employees unless the charge is filed no later than

forty-five days "after the date on which the person filing the complaint obtained

sufficient information to file the matter upon which the complaint is based."

Ibid.

        Here, appellant argues that the NJDOC had "sufficient information" to

bring the falsification charge by April 15, 2016. He asserts that on that date,

the NJDOC charged another corrections officer, Lieutenant Harry Ervin,

with falsification with regard to the November 6, 2015 incident at the




                                                                          A-0981-17T2
                                       11
barbershop.   It appears that Ervin was the officer whose haircut allegedly

prompted the incident on November 6, 2015.

      The NJDOC charged Ervin with making false statements during the SID's

investigation of the incident, specifically with regard to whether Collazo

approached him with the inmate at GSCF's central control. The NJDOC pointed

out that several witnesses had placed Collazo in that area of the facility and

indicated that Collazo had spoken with Ervin in the presence of the inmate.

      Appellant argues that if the NJDOC had sufficient information to charge

Ervin with falsification on April 15, 2016, it also had sufficient information to

charge him with falsification on that date. He also argues that if the NJDOC

had sufficient information to charge him with the underlying conduct, des pite

his denials at the first interview, the NJDOC also had sufficient information to

charge him with falsification at that time. We disagree.

      The NJDOC had sufficient information to charge Ervin with falsification

on April 15, 2016, as the ALJ and Commission found. The NJDOC did not,

however, have sufficient information to charge appellant with falsification until

appellant admitted during the May 26, 2016 interview that he lied to SID

investigators during the March 11, 2016 interview.




                                                                         A-0981-17T2
                                      12
      As we noted previously, the inmate asserted that appellant was involved

in the November 6, 2015 incident, but appellant denied that allegation. He stated

that he had been "lied on before." The ALJ and Commission determined that

the NJDOC did not have sufficient evidence to support a charge of falsification

against appellant until the May 26, 2016 interview, when appellant admitted he

lied during the March 11, 2016 interview.

      We are convinced there is sufficient credible evidence in the record to

support the ALJ's and the Commission's findings. The ALJ and Commission

correctly determined that the NJDOC filed the falsification charge within the

time required by N.J.S.A. 30:4-3.11a.

                                        IV.

      Next, appellant argues the Commission's final decision is arbitrary,

capricious, and against the weight of the evidence. He notes that after the

NJDOC filed its motion for partial summary decision on the falsification charge,

he submitted a cross-motion for summary decision on that charge.

      Appellant asserts that because the NJDOC did not submit an affidavit in

response to his cross-motion, as required by N.J.A.C. 1:1-12.5(b), the ALJ was

required to grant his cross-motion and dismiss the falsification charge as a

matter of law. N.J.A.C. 1-1:12.5(b) provides:


                                                                         A-0981-17T2
                                        13
             When a motion for summary decision is made and
             supported, an adverse party in order to prevail must by
             responding affidavit set forth specific facts showing
             that there is a genuine issue which can only be
             determined in an evidentiary proceeding. If the adverse
             party does not so respond, a summary decision, if
             appropriate, shall be entered.

      We reject appellant's argument that the rule required the ALJ to grant his

cross-motion. In its motion, the NJDOC established that there were no genuine

issues of material fact relevant to the falsification charge, and that it was entitled

to partial summary decision on the charge. There was no need for the NJDOC

to submit another affidavit in response to appellant's cross-motion, setting forth

specific facts showing the absence of a genuine issue of material fact relevant

to the falsification charge.

      Moreover, the rule states that a summary decision should be entered only

"if appropriate." Ibid. Here, the ALJ found there were no genuine issues of

material fact regarding the merits of the falsification charge, and the NJDOC

was entitled to partial summary decision on the charge. The Commission

agreed. Thus, it would not have been "appropriate" for the ALJ to grant

appellant's cross-motion.

                                         V.




                                                                              A-0981-17T2
                                         14
      Appellant contends his statements during the March 11, 2016 interview

cannot be used as a basis for discipline. He asserts that the interview was

"constitutionally offensive" and contrary to guidelines issued by the Attorney

General, which apply when certain law enforcement employers conduct internal

interviews of employees suspected of misconduct.

      Here, the record shows that on December 10, 2015, appellant's attorney

wrote to the Commissioner of the NJDOC and stated he was representing

appellant in the internal investigation of the barbershop incident. The atto rney

stated that appellant was invoking his right to remain silent, and the NJDOC

should contact him before interviewing appellant.

      On appeal, appellant asserts the NJDOC failed to notify his attorney about

the March 11, 2016 interview and "forced" him to attend the interview "under

threat of termination . . . ." He claims the statements he made during this

interview were "coerced" and "should not be considered as a basis

for discipline."

      There is, however, no evidence that before the March 11, 2016 interview,

the SID investigators were aware of the letter that appellant's attorney addressed

to the Commissioner. Even if the SID had been informed of the letter before the

interview, appellant was under no threat of criminal prosecution at that time.


                                                                          A-0981-17T2
                                       15
The record shows that the NJDOC had referred the matter to the Burlington

County Prosecutor's Office (BCPO), and on March 8, 2016, the BCPO declined

to charge appellant with any criminal offense regarding the incident.

      In addition, the record does not support appellant's assertion that his

statements were "coerced." Rather, the record shows that appellant knew he was

a subject of the NJDOC's internal investigation of the November 6, 2015

incident. Indeed, before the March 11, 2016 interview began, appellant sign ed

a document confirming this fact.

      Appellant also acknowledged that he had the right to have a union

representative present during the interview and the right to "stop answering

questions at any time until union representation is present." He elected to have

his union representative on hand during the interview.

      Furthermore, appellant answered the investigator's questions voluntarily.

He never asserted a right to counsel or refused to answer the investigator's

questions unless his attorney was present. The record therefore supports the

Commission's determination that the March 11, 2016 interview was not

"constitutionally offensive," as appellant claims.

      Appellant further argues that the SID investigators interviewed him in a

manner "contrary to every directive of proper investigation of law enforcement


                                                                        A-0981-17T2
                                       16
employees by law enforcement agency employers." In support of this argument,

appellant cites the Attorney General Guidelines, "Internal Affairs Policy &

Procedures" (rev. July 2014).

      We note, however, that the NJDOC is expressly exempt from these

guidelines, which state that "State and county correctional agencies

. . . are under no obligation to implement the provisions of this policy."

Moreover, the guidelines apply when a law enforcement officer's conduct may

implicate a violation of a criminal statute and an agency's rules and regulations.

As we stated previously, when the SID investigators interviewed appellant on

March 11, 2016, he was not under threat of criminal prosecution.

                                       VI.

      Appellant argues that the NJDOC failed to establish "just cause" to

remove him from his employment as a corrections officer. He claims the

NJDOC did not carry its burden to justify disciplining him. He asserts the

NJDOC's decision to remove him from his position was "frivolous and

arbitrary."

      Appellant also argues that the NJDOC "failed to show by a preponderance

of the evidence that [he] acted in any inappropriate fashion that could warrant

discipline." He claims the evidence establishes that he "acted professionally and


                                                                          A-0981-17T2
                                       17
appropriate[ly] under all of the given circumstances." He asserts the NJDOC

"failed to [present] any competent evidence that . . . [he] abused an inmate."

      As we have explained, the ALJ found the NJDOC had not sustained the

charges that appellant physically abused the inmate during the November 6,

2015 incident. The Commission affirmed the dismissal of those charges. The

record established, however, that appellant made false and misleading

statements regarding the incident when he was interviewed on March 11, 2016.

      Appellant's claim that he acted at all times in a professional and

appropriate manner is patently without merit. Here, the Commission determined

the NJDOC carried its burden by proving by a preponderance of the evidence

that appellant violated the NJDOC's rules, regulations, and procedures, which

prohibit "falsification" of material facts during an internal investigation. We are

convinced there is sufficient credible evidence in the record to support the

Commission's decision. Its decision affirming the NJDOC removal of appellant

from his position as a corrections officer was not arbitrary, capricious, or

unreasonable.

                                       VII.

      Appellant also contends the penalty of removal is excessive. He asserts

his "otherwise largely unblemished work history mandates that the sanction of


                                                                           A-0981-17T2
                                       18
[r]emoval is shocking to the conscience." He claims "the termination of his

career is so wide of the mark that the [c]ourt's conscience should not permit it."

Again, we disagree.

      "A reviewing court should alter a sanction imposed by an administrative

agency only 'when necessary to bring the agency's action into conformity with

its delegated authority.'" Herrmann, 192 N.J. at 28 (quoting In re Polk, 90 N.J.

550, 578 (1982)). A reviewing court "has no power to act independently as an

administrative tribunal or to substitute its judgment for that of the agency." Ibid.

(quoting Polk, 90 N.J. at 578).

      When reviewing an agency's disciplinary action, we consider "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

(quoting Polk, 90 N.J. at 578). Appellant contends his removal is shocking and

unfair. We disagree.

      In its decision, the Commission pointed out that appellant is a corrections

officer, "who, by the very nature of his job duties, is held to a higher standard

of conduct than other public employees." The Commission stated that "appellant

blatantly lied in an interview about his knowledge of and involvement in the

alleged abuse of an inmate."           The Commission considered imposing


                                                                            A-0981-17T2
                                        19
"progressive discipline," but ultimately determined that "the egregiousness of

the appellant's misconduct clearly warrants removal from such a safety sensitive

law enforcement position, regardless of his disciplinary history."

      In Hermann, the Court recognized that "progressive discipline is a worthy

principle but it is not subject to universal application when determining a

disciplined employee's quantum of discipline." 192 N.J. at 36. Progressive

discipline may be "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." Id. at 33.

      Here, the Commission found that although appellant did not physically

abuse the inmate, his misconduct was "sufficiently egregious, in and of itself, to

support his removal." There is sufficient credible evidence in the record to

support that determination.     We conclude appellant's removal is not "so

disproportionate to the offense, in light of all the circumstances, as to be

shocking to one's sense of fairness." Herrmann, 192 N.J. at 28-29 (quoting Polk,

90 N.J. at 578).

      Affirmed.




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                                       20
