NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2951-14T4 APPROVED FOR PUBLICATION IN THE MATTER OF JOHN RESTREPO, DEPARTMENT OF CORRECTIONS. March 27, 2017 ____________________________________ APPELLATE DIVISION

Submitted December 13, 2016- Decided March 27, 2017 Before Judges Fisher, Leone, and Vernoia.

On appeal from the Civil Service Commission, CSC Docket No. 2014-2092.

Sciarra & Catrambone, attorneys for appellant John Restrepo (Charles J. Sciarra, of counsel; Christopher A. Gray, on the briefs).

Christopher S. Porrino, Attorney General, attorney for respondent New Jersey Department of Corrections (Melissa H. Raksa, Assistant Attorney General, of counsel; Christopher M. Kurek, Deputy Attorney General, on the briefs).

Christopher S. Porrino, Attorney General, attorney for respondent New Jersey Civil Service Commission (Todd A. Wigder, Deputy Attorney General, on the statement in lieu of brief).

The opinion of the court was delivered by LEONE, J.A.D.

Appellant John Restrepo appeals the February 4, 2015 decision of the Civil Service Commission (Commission) terminating his employment with the Department of Corrections (DOC). His appeal raises the issue of whether the timeliness of Commission decisions in disciplinary cases involving law enforcement officers and firefighters is governed by the recent legislation addressing such cases, L. 2009, c.16 (2009 Act), or by the Administrative Procedure Act (APA), N.J.S.A. 52:14B-1 to -15.

We hold that the 2009 Act governs. Under the 2009 Act, the Commission's decision was timely. Moreover, the decision was not arbitrary, capricious, or unreasonable. Accordingly, we affirm.

I.

We derive the following facts from the findings and evidence before the Administrative Law Judge (ALJ) and the Commission.

Restrepo worked for the DOC for approximately six years.

He was commended for "a job well done in dealing with the terrible impact of Hurricane Sandy" in Fall 2012 and for finding two shanks during a cell search in June 2012. Restrepo's record was free from disciplinary infractions.

On December 22, 2013, Restrepo was a senior corrections officer (SCO) at Northern State Prison (Prison). He was assigned to the Prison's Housing Unit F-300, East Side (F3E).

F3E consists of a housing wing comprised of two floors and forty

Two separate physical altercations between inmates broke out in F3E while Restrepo was on duty on December 22.

Lieutenant Andre Fleming, Restrepo's supervisor, investigated the altercations and testified to the following.

The first physical altercation occurred between 6:28 a.m. and 7:36 a.m., when several inmates gained access to another inmate's cell. Restrepo was not at his post in F3E when this altercation arose.

The second altercation occurred around 12:18 p.m., when some of the inmates involved in the first altercation began fighting. Restrepo was at his post for this altercation and was able to break up and report the fight.

Lieutenant Fleming reviewed a security video from F3E. The video showed Restrepo was at his post and performed his early morning inmate count. Restrepo left his post in F3E at 6:28 a.m. and returned at 7:36 a.m., according to the timestamp on the video. Thus, Restrepo was absent from his post for sixty- eight minutes. He did not call for relief during this period.

Fleming testified that for an officer to properly obtain relief from his post, the officer should notify his supervisor to request the relief and the supervisor will send someone to temporarily relieve the officer from his post.

Security Major Michael Chrone testified the Prison Custody Post Orders (Post Orders) and the DOC's Law Enforcement Personnel Rules & Regulations (DOC Rules) explicitly provide instructions for what an officer needs to do before leaving his post. The Post Orders provide: "Housing Unit officers are not to leave their assigned post unless properly relieved by another officer or permission is granted from the Shift Commander." The DOC Rules provide: "Except as predetermined by emergency

The DOC issued a preliminary Notice of Disciplinary Action against Restrepo charging him with neglect of duty, N.J.A.C.

4A:2-2.3(a)(7), and other violations. The preliminary notice advised Restrepo removal was a possible punishment for his charged offenses. After a hearing, a final Notice of Disciplinary Action was issued, removing Restrepo from his position effective February 21, 2014.

Restrepo simultaneously appealed the decision to the Commission and the Office of Administrative Law (OAL) pursuant to N.J.S.A. 40A:14-202(d). After a hearing, the ALJ issued his initial decision on November 25, 2014. He made the following factual findings: SCO Restrepo admitted to leaving his post in the F3E unit for a period of 68 minutes on

The ALJ found Restrepo's argument that he was allowed to be in the bathroom for more than an hour was "at best pretextual and in the context of a prison environment simply unconvincing" and "casts doubt with respect to [his] ability to exercise good judgment." The ALJ found Restrepo neglected his duty in violation of N.J.A.C. 4A:2-2.3(a)(7).

II.

"Appellate courts have a 'limited role' in the review of [Commission] decisions." In re Stallworth, 208 N.J. 182, 194 (2011) (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579 (1980)). "An appellate court affords a 'strong presumption of reasonableness' to an administrative agency's exercise of its statutorily delegated responsibilities." Lavezzi v. State, 219 N.J. 163, 171 (2014) (citation omitted). "In order to reverse an agency's judgment, an appellate court 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 (quoting Henry,

III.

Restrepo first argues the decision of the Commission was untimely, and therefore the decision of the ALJ recommending a six-month suspension should be deemed final under N.J.S.A.

52:14B-10 of the APA or N.J.S.A. 40A:14-204 of the 2009 Act. We must first determine which of those statutory schemes applies here.

Cases involving the Commission have long been considered under the APA. The APA provides that, in contested cases, after the ALJ issues a recommended report and decision, the head of the agency is required to "adopt, reject or modify" the ALJ's recommendations "no later than 45 days after receipt of such recommendations." N.J.S.A. 52:14B-10(c). "Unless the head of the agency modifies or rejects the report within [the forty- five-day] period, the decision of the [ALJ] shall be deemed adopted[.]" Ibid. However, "for good cause shown, upon certification by the [OAL] director and the agency head, the time limits herein may be subject to a single extension of not more than 45 days. Any additional extension of time shall be subject to, and contingent upon, the unanimous agreement of the parties." Ibid.; see N.J.A.C. 1:1-18.8(e).

The 2009 Act provides that an officer appealing imposition of discipline "shall file his appeal simultaneously with [the OAL] and [the Commission]" to facilitate the timely rendering of a final determination. N.J.S.A. 40A:14-202(d). "Within 45 days of receiving [the ALJ's] decision, the commission shall complete its review and issue its final determination." N.J.S.A. 40A:14- 204. "[H]owever, the commission, at its discretion, may extend its review period by no more than an additional 15 days." Ibid.

The Commission may obtain a second extension "for good cause" if it gives "written notice to the Chief Administrative Law Judge" and the parties and the Chief ALJ decides "the review period shall be extended." Ibid. If the Commission fails to issue its final decision within the deadline or extended deadline, "the recommended decision of the administrative law judge shall be deemed to be final." Ibid.; see N.J.A.C. 4A:2-2.13(f).

N.J.S.A. 40A:14-204.

"It is a well established precept of statutory construction that when two statutes conflict, the more specific controls over the more general." N.J. Transit Corp. v. Borough of Somerville, 139 N.J. 582, 591 (1995); accord Bergen Cty. PBA Local 134 v. Donovan, 436 N.J. Super. 187, 199 (App. Div. 2014); see Williams v. Am. Auto Logistics, 226 N.J. 117, 126 (2016) (following "the oft-stated principle of statutory construction that a specific statutory declaration prevails over a more general one"). The APA's provisions govern administrative procedures generally. By contrast, the 2009 Act specifically governs disciplinary proceedings when the review involves a law enforcement officer or a firefighter. Thus, in a disciplinary proceeding involving a law enforcement officer or firefighter as defined in the 2009 Act, the specific procedures in the 2009 Act govern over

IV.

The Commission did not make its final determination within the forty-five-day timeline set forth in the APA and the 2009 Act. The Commission requested and received two extensions and issued its decision prior to the expiration of the second extension. Because the Commission's second extension was not based on "the unanimous agreement of the parties," it would not have been proper under N.J.S.A. 52:14B-10(c), and the Commission's decision would have been untimely under the APA.

However, the Commission's second extension was proper, and its decision was timely, under the 2009 Act.

The ALJ issued his initial decision on November 25, 2014, and the Commission received it that day. Thus, the initial deadline for the Commission to issue its final determination was January 9, 2015. The Commission considered the ALJ's recommendation in a December 17, 2014 meeting. On December 26, 2014, the Commission issued a one-page letter stating that it did not adopt the ALJ's recommendation to modify the penalty to a six-month suspension and that it upheld Restrepo's removal.

2 On the Commission's December 17 letter, Restrepo's counsel is listed as a "CC." The letter also stated there was "unanimous agreement of the parties." However, Restrepo's counsel argues he did not receive or consent to the letter. Indeed, the space for the "Date agency mailed executed order to parties" was left blank. Service of extension requests and extension orders is required under both the APA and the 2009 Act. See N.J.A.C. 1:1- 18.8(e); N.J.A.C. 4A:2-2.13(f). Any failure to make service, and any misstatement of consent, was erroneous. Nonetheless, the error was harmless and was not "clearly capable of producing an unjust result," R. 2:10-2, because Restrepo's consent was not required for a first extension under the APA or the 2009 Act and because the first extension was not an abuse of discretion under the 2009 Act.

She found "the quorum problem in January was an unforeseen circumstance." The Commission issued its final decision on February 4, 2015, within the second extension period.

Restrepo argues the Commission's determination at its December 17, 2014 meeting, evidenced in its December 26, 2014 letter, was not the final administrative determination required by N.J.S.A. 40A:14-204. We agree.

The Commission's December 26 determination contained no factual findings or conclusions of law and instead merely stated it rejected the ALJ's recommendation on the penalty. We have repeatedly warned administrative agencies that

3 The Commission again cited the APA's N.J.S.A. 52:14B-10(c), which requires "the unanimous agreement of the parties" for a second extension. The Commission claimed "consent of the parties is not necessary for this extension request" because "[a]t its meeting on December 17, 2014, the [Commission] made a final determination within the required 45 day time frame" and gave notice of that determination on December 26, 2014. As we explain in text, the Commission's actions in December 2014 were inadequate to constitute a final determination. Thus, the second extension required but lacked the unanimous consent required under the APA.

Nonetheless, "[t]he lack of findings of fact and conclusions of law in an agency's [summary letter preceding its final decision] does not automatically require the ALJ's initial decision to be 'deemed approved.'" Id. at 341. The Commission recognized its December 26 letter was inadequate and granted itself a timely initial fifteen-day extension to comply with Capone. We cannot say this initial extension was an abuse of discretion.

Furthermore, we have indicated an agency which has issued an inadequate summary order "should have applied to the Office of Administrative Law for an additional extension . . . until the issuance of its final decision." Cavalieri v. Bd. of Trs. of Pub. Emps. Ret. Sys., 368 N.J. Super. 527, 540 (App. Div. 2004); see Penpac, Inc. v. Passaic Cty. Utils. Auth., 367 N.J. Super. 487, 499 (App. Div.), certif. denied, 180 N.J. 457 (2004). Here, the Commission sought and received from the Chief

The Commission's lack of quorum constituted good cause for an extension to render a final determination. Three of the Commission's five authorized members "shall constitute a quorum." N.J.S.A. 11A:2-3. A quorum is necessary for the Commission to render a disciplinary decision. See King v. N.J. Racing Comm'n, 103 N.J. 412, 418 (1986) (setting aside the Racing Commission's rejection of the ALJ's recommendation due to the lack of a "legal quorum"). In King, our Supreme Court held that "the deemed-approved provision of N.J.S.A. 52:14B-10(c) should not be invoked" where the Racing Commission tried to act but lacked a quorum and that "the agency should be permitted to take remedial steps to cure the deficiency and to issue a decision." Id. at 421, 423. Therefore, the deemed-approved provision should not be applied where the agency, rather than making a decision without a quorum, sought a brief extension to cure the quorum deficiency and issued a decision within that extension.

Our Supreme Court in King recognized "a statutory 'automatic approval mechanism should be applied with caution.'" Id. at 422. The Court "require[s] an agency display of 'bad faith,' 'inexcusable negligence,' 'gross indifference,' or a

Restrepo alleges that the Commission has been two commissioners short since 2011, that it could not obtain a quorum in January 2014 either, and that it would be unfair if it was unable to obtain a full quorum "if one of these members is on vacation." However, Restrepo cites no proof for the serious allegation that the Commission intentionally cancelled its

V. Restrepo next argues the decision to uphold his removal was arbitrary and capricious because the Commission did not follow the principles of progressive discipline.

Courts "'accord substantial deference to an agency head's choice of remedy or sanction.'" In re Herrmann, 192 N.J. 19, 34-35 (2007) (citations omitted). "A reviewing court should alter a sanction imposed by an administrative agency only 'when

Progressive discipline was first endorsed by our Supreme Court in West New York v. Bock, 38 N.J. 500, 523-24 (1962).

Progressive discipline has been used in two ways. "First, principles of progressive discipline can support the imposition of a more severe penalty for a public employee who engages in habitual misconduct." Herrmann, supra, 192 N.J. at 30. "The second use to which the principle of progressive discipline has been put is to mitigate the penalty for a current offense" where, as here, an employee has little or no record of misconduct. Id. at 32.

However, neither this court nor our Supreme Court "regard[] the theory of progressive discipline as a fixed and immutable rule to be followed without question." Carter, supra, 191 N.J. at 484. In particular, "progressive 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, supra, 192 N.J. at 18 A-2951-14T4 33. Moreover, "[i]n matters involving discipline of police and corrections officers, public safety concerns may also bear upon the propriety of the dismissal sanction." Carter, supra, 191 N.J. at 485.

Here, Restrepo was away from his post for approximately sixty-eight minutes and notified no one at the Prison he would be gone or where he was going. He did so in direct violation of the Post Orders and the DOC Rules, which forbid an officer from leaving his post without calling for relief. Further, Restrepo left an entire housing wing containing scores of prisoners unobserved for over an hour, and the prisoners took advantage of his absence to start a fight that engendered another fight.

Correctional facilities, if not run properly, "have a capacity to become 'tinderboxes.'" Bowden v. Bayside State Prison, 268 N.J. Super. 301, 306 (App. Div. 1993), certif. denied, 135 N.J. 469 (1994). That potential was certainly displayed here.

Restrepo's misconduct put lives in danger and could have been easily avoided by making a radio call to request relief from another officer. The DOC determined Restrepo's actions to be so egregious and severe that they warranted removal. "The appraisal of the seriousness of [the officer's] offense and degree to which such offenses subvert discipline . . . are

The Commission agreed with the DOC that Restrepo's conduct was egregious, finding his absence for "over an hour created an extreme safety issue for other inmates and for correctional personnel." The Commission has de novo review over public employee disciplinary matters. Henry, supra, 81 N.J. at 579; see N.J.S.A. 11A:2-19. Courts on the other hand "have a limited role in reviewing a decision of an administrative agency" and will overturn the decision only if it is "arbitrary, capricious or unreasonable or it is not supported by substantial credible evidence in the record as a whole." Henry, supra, 81 N.J. at 579-80 (applying that standard to the Commission's decision regarding the penalty for a corrections officer who fell asleep). Ultimately, the "question for the courts 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, supra, 191 N.J. at 484 (citation omitted). Here, the Commission's decision was supported by credible evidence and was not arbitrary, capricious, or unreasonable. Removal does not shock our sense of fairness.

Restrepo's remaining arguments lack sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E).

Affirmed.