NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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

2 A-2951-14T4 prison cells, with two prisoners assigned to each cell. F3E

also encompasses a "sally port," a secure entryway into F3E

which is monitored by the officer on duty in F3E. The Local

Control Point (LCP) is located on the other side of the "sally

port." In the LCP, on-duty corrections officers can monitor who

enters the East Side and West Side wings and control the opening

and closing of the cell doors in those wings. A restroom is

located in the LCP, and this is where on-duty officers may use

the bathroom. The LCP is separate from F3E and therefore not

part of Restrepo's post in F3E.

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.

3 A-2951-14T4 When Lieutenant Fleming inquired into Restrepo's earlier

absence, Restrepo submitted a statement that he was sick and

using the restroom in the LCP. Restrepo also submitted a

doctor's note dated December 21, 2013, saying he visited a

doctor and was treated for a stomach virus on that date.

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

4 A-2951-14T4 response procedures, an officer assigned to a post shall not

leave that post without permission of the supervisor, or until

properly relieved."

Major Chrone added, through his twenty-one-year career in

corrections, "[he] was always instructed . . . to call for []

relief . . . . either via phone or via radio for your sergeant

to get you relieved to the use the restroom, meal break, so on

and so forth." Restrepo was equipped with a radio, on which he

could have called a supervisor and requested relief by another

officer so he could use the restroom.

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

5 A-2951-14T4 December 22, 2013 to use the bathroom in the LCP. Both the Custody Post Orders and [DOC Rules] provide that any time an officer needs to leave his assigned post, it is necessary to contact the officer's supervisor to request permission to be properly relieved. As a result, during his absence, three inmates entered the cell of another inmate and began to fight. This fight was not reported, and was not discovered until Lt. Fleming conducted his investigation and reviewed the video surveillance of the F3E unit for December 22, 2013. Later that same day, the same exact inmates were involved in a second fight, which was seen and reported by SCO Restrepo. The second fight may have been prevented had SCO Restrepo been on his assigned post and either witnessed the first altercation or his presence may have prevented the [first] fight from occurring in the first place. By failing to contact a supervisor prior to leaving his post, SCO Restrepo failed and neglected his duties to protect the inmates whom he was responsible to oversee. This failure resulted in inmates fighting, which created a danger to all of the inmates in the F3E unit. SCO Restrepo violated [the Post] Orders and the [DOC Rules] when he went to the bathroom without first obtaining permission or being properly relieved.

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).

6 A-2951-14T4 The ALJ also found Restrepo's negligent dereliction was

serious. Nonetheless, the ALJ recommended the Commission modify

the discipline to a six-month suspension because removal was too

harsh of a punishment when considering "the absence of any prior

discipline."

On February 4, 2015, the Commission issued a four-page

final administrative action. The Commission adopted the factual

findings of the ALJ, agreed with the ALJ regarding the charges,

but disagreed with the ALJ's modification of the penalty,

finding Restrepo's misconduct was "egregious" and "created an

extreme safety issue." Restrepo appeals.

II.

"Appellate courts have a 'limited role' in the review of

[Commission] decisions." In re Stallworth,

(2011) (quoting Henry v. Rahway State Prison,

(1980)). "An appellate court affords a 'strong presumption of

reasonableness' to an administrative agency's exercise of its

statutorily delegated responsibilities." Lavezzi v. State,

(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.'"

(quoting Henry,

7 A-2951-14T4 supra,

) (alteration in original). We must hew

to that standard of review.

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[.]"

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).

8 A-2951-14T4 In 2009, our Legislature enacted the 2009 Act, entitled "An

Act Concerning the Suspensions of Certain Law Enforcement

Officers and Firefighters," largely codified at N.J.S.A. 40A:14-

200 to -212. It defines "Law enforcement officer" and "Law

enforcement agency" to include those statutorily empowered to

act for the "detention, or rehabilitation of persons violating

the criminal laws of this State." N.J.S.A. 40A:14-200. The

parties do not dispute the 2009 Act applies to DOC officers.

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."

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."

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).

9 A-2951-14T4 Thus, the APA and the 2009 Act require conflicting

procedures to request an extension. Under the APA, a single

forty-five-day extension may be awarded only if there is good

cause shown, and any subsequent extensions may only be granted

on unanimous consent of the parties. N.J.S.A. 52:14B-10(c). By

contrast, the 2009 Act grants the Commission discretion to give

itself one fifteen-day extension, and any subsequent extensions

may be granted by the Chief ALJ upon a showing of good cause.

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,

(1995); accord Bergen Cty. PBA Local 134 v.

Donovan,

(App. Div. 2014); see Williams

v. Am. Auto Logistics,

(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

10 A-2951-14T4 inconsistent procedures generally applicable under the APA. See

N.J. Transit, supra,

; see also NYT Cable TV v.

Homestead at Mansfield,

(App. Div.

1986), aff’d,

(1988).

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.

11 A-2951-14T4 The letter added: "A decision in this matter will be issued in

the near future."

Meanwhile, in a letter dated December 17, 2014, the

Commission issued an "Order of Extension" for a fifteen-day

extension, until January 24, 2015, to issue its final

determination. The order stated there was "good cause" for an

extension because additional time was required "to comply with

certain aspects of [Capone v. N.J. Racing Comm'n,

(App. Div. 2003).]"1 The order was countersigned by

Laura Sanders, the Acting OAL Director and Chief ALJ, on

December 19, 2014.2

On January 22, 2015, the Commission issued and served a

letter entitled "Order of Extension . . . Second Request,"

1 The Commission apparently believed the extension was governed by the APA. The Commission cited N.J.S.A. 52:14B-10(c), which requires "good cause" and "certification by the [OAL] director" for a first extension. N.J.S.A. 52:14B-10(c).

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.

12 A-2951-14T4 requesting a second extension to February 8, 2015, to issue its

final determination. The request explained there was "good

cause" because the Commission's meetings for January 7 and

January 21, 2015, were cancelled due to lack of a quorum, so a

final decision could not be issued.3 On February 3, 2015, the

Chief ALJ issued and served a letter granting the extension.

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.

13 A-2951-14T4 simply notifying a party of its rejection of an ALJ's initial decision, followed many months later by issuance of a final decision containing findings of fact and conclusions of law, violates N.J.S.A. 52:14B-10(c) and (d) and could result in the ALJ's initial decision being "transformed into the agency's final decision."

[Capone, supra,

(quoting N.J. Racing Comm'n v. Silverman,

(App. Div. 1997)).]

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.'"

. 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.,

(App. Div.

2004); see Penpac, Inc. v. Passaic Cty. Utils. Auth.,

(App. Div.), certif. denied,

(2004). Here, the Commission sought and received from the Chief

14 A-2951-14T4 ALJ a second fifteen-day extension and filed its final

determination within that extension period.

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,

(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."

. 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.'"

. The Court "require[s] an agency display of 'bad

faith,' 'inexcusable negligence,' 'gross indifference,' or a

15 A-2951-14T4 complete failure to respond to an ALJ's Initial Decision within

the forty-five day period before that 'decision should be

transformed into the agency's final decision.'" Matturri v. Bd.

of Trs. of the Judicial Ret. Sys.,

(2002)

(quoting

); see also Klusaritz v.

Cape May County,

(App. Div. 2006),

certif. denied,

(2007). Thus, the Chief ALJ

properly found "[t]his is not an instance of agency inattention,

or failure to pursue diligently its obligation to make its

decisions."

Restrepo argues the Commission's final decision was

untimely due to "bad faith, inexcusable negligence, or gross

indifference," and, therefore, the ALJ's recommendation of a

six-month suspension should be deemed the final administrative

determination.

. He argues a "lack

of quorum" is not sufficient to show good cause for an

extension. We disagree.

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

16 A-2951-14T4 January meetings so its members could vacation. In any event,

the Commission's issuance of its December 26 letter, and its

obtaining of a quorum and issuance of Restrepo's final

determination by February 4, belie Restrepo's claim of bad

faith, inexcusable negligence, gross indifference, or a complete

failure to respond in the initial forty-five-day period. See

(upholding the

Pension Board's untimely ruling because it "signaled its

intentions to reject the initial decision . . . and issued its

final decision reasonably promptly thereafter"); cf.

(admonishing the Racing Commission

because it "delayed nine months until it eventually issued its

decision" without seeking any extensions). Accordingly, the

extensions were proper, and the Commission's decision was

timely.

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,

(2007) (citations omitted). "A reviewing court should

alter a sanction imposed by an administrative agency only 'when

17 A-2951-14T4 necessary to bring the agency's action into conformity with its

delegated authority. The Court has no power to act

independently as an administrative tribunal or to substitute its

judgment for that of the agency.'"

(citation

omitted).

Progressive discipline was first endorsed by our Supreme

Court in West New York v. Bock,

(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."

. "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.

.

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."

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,

(App. Div. 1993), certif. denied,

(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

19 A-2951-14T4 matters peculiarly within the expertise of the corrections

officials." Ibid.

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.

; 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."

(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.

20 A-2951-14T4 Restrepo cites DOC Human Resources Bulletin 84-17, but it

states removal is a potential disciplinary measure for a first

offense for leaving the assigned work area, or other neglect of

duty, if it creates a danger to persons or property. Therefore,

removal, though not automatic, is warranted where the conduct is

egregious, as it is here.

Restrepo's remaining arguments lack sufficient merit to

warrant discussion. R. 2:11-3(e)(1)(E).

Affirmed.

21 A-2951-14T4