Opinion
DOCKET NO. A-5340-12T1
11-10-2014
IN THE MATTER OF ANNIE BAKER, JUVENILE JUSTICE COMMISSION.
Frank M. Crivelli argued the cause for appellant Sergeant Annie Baker (Pellettieri, Rabstein & Altman, attorneys; Mr. Crivelli and Donald C. Barbati, on the brief). Joseph M. Micheletti, Deputy Attorney General, argued the cause for respondent Juvenile Justice Commission (John J. Hoffman, Acting Attorney General, attorney; Randy Miller, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Lihotz and Guadagno. On appeal from the Civil Service Commission, Docket No. 2012-3265. Frank M. Crivelli argued the cause for appellant Sergeant Annie Baker (Pellettieri, Rabstein & Altman, attorneys; Mr. Crivelli and Donald C. Barbati, on the brief). Joseph M. Micheletti, Deputy Attorney General, argued the cause for respondent Juvenile Justice Commission (John J. Hoffman, Acting Attorney General, attorney; Randy Miller, on the brief). PER CURIAM
Appellant Sergeant Annie Baker, a former corrections officer with the Juvenile Justice Commission (JJC), appeals from a June 26, 2013 final decision of the Civil Service Commission (CSC) sustaining disciplinary charges and removing her from her position as a corrections officer. Although this action was labeled as a disciplinary proceeding, Sergeant Baker's separation from service was based upon her inability to successfully meet the minimum eighty percent accuracy score during a fall 2011 firearms re-qualification session. Sergeant Baker seeks reversal, arguing the CSC's decision was arbitrary and capricious. We agree in part. Consequently, we affirm in part and reverse and remand in part.
Sergeant Baker had been employed by the JJC for almost twenty-two years, seventeen of which were as a corrections officer. She has an unblemished service record. At the time this matter was reviewed, she worked as a uniformed Corrections Sergeant at the New Jersey Training School for Boys (Jamesburg).
The CSC published a lengthy and detailed nine-page job description for the Corrections Sergeant position. Included within the provisions describing the qualifications is this special note:
Appointees must have successfully completed the NJ Police Training Commission and agency training course standards for custody, supervision, investigation, and related law enforcement requirements. Appointees shall have qualified in the usage of firearms and the ability to re[-]qualify on a semi[-]annual basis.In this regard, JJC policy number 11H-3.2, effective September 29, 2011, required all JJC law enforcement officers "must achieve and maintain" active firearms qualification status, which included semi-annual firearms re-qualification in accordance with the Attorney General's re-qualification standards for state law enforcement personnel. Testing includes three separate proficiencies: handgun day fire; handgun night fire; and shotgun use. The JJC policy provides that in the event an officer fails to re-qualify after six attempts during the re-qualification cycle, JJC management is authorized to take appropriate action "up to and including termination."
[Civil Serv. Comm., Correction Sergeant, Juvenile Justice Job Specification 40809 (May 11, 1996), http://info.csc.state.nj.us/ jobspec/40809.htm.]
Sergeant Baker's issued equipment included a .40 caliber Smith and Wesson handgun and a shotgun. She successfully completed re-qualification for handgun night fire and shotgun use. However, she was unable to meet minimum proficiencies for handgun day fire. Under required testing time and conditions, after the first four attempts, Sergeant Baker's best score on this test was thirty-nine of sixty shots fired, thus, missing the minimum passing score of forty-eight. Consequently, Sergeant Baker was ordered to attend a remedial firearms training class, comprised of classroom instruction, shooting fundamental exercises and live fire. Following this training, Sergeant Baker did not successfully meet the minimum re-qualification score.
During this period of JJC re-qualification, a challenge was filed by the corrections officers' bargaining unit, objecting to the manner in which the remediation course was conducted. Based on an agreement reached, Sergeant Baker and other unsuccessful candidates tested during this period were afforded the opportunity to participate in a one-hundred-twenty round firearms practice. After the practice session, Sergeant Baker was given two additional attempts to pass the re-qualification course. She failed both attempts, achieving scores of forty-two and forty-four.
Sergeant Baker's inability to meet the minimum passing score caused the JJC to serve a Preliminary Notice of Disciplinary Action, seeking her "immediate suspension [a]s necessary to maintain safety, order or effective direction of public services." The charges stated Sergeant Baker failed to perform her duties, N.J.A.C. 4A:2-2.3(a)(3), and she was removed from her position of employment on February 14, 2012.
The bases for discipline cited in the Final Notice of Disciplinary Action are the "[i]nability to perform duties, N.J.A.C. 4A:2-2.3(a)(3), as well as any "[o]ther sufficient cause," further described as "violation of JJC HR policy 11H:3.2 Firearms Re[-]qualification," N.J.A.C. 4A:2-2.3(a)(12). This notice incorrectly lists subsection 11, but properly recites the operative provision, subsection 12.
After departmental hearings, the disciplinary action was upheld. Sergeant Baker appealed to the CSC, which certified the matter as a contested case and transmitted it to the Office of Administrative Law for a hearing before an Administrative Law Judge (ALJ).
The JJC presented testimonial and documentary evidence to prove Sergeant Baker's testing opportunities, remedial training and scores. Witnesses included the range masters who supervised the re-qualification sessions attended by Sergeant Baker. Generally, the position taken by the JJC was Sergeant Baker ignored her obligation to practice with her weapon, resulting in her failure to qualify. Sergeant Baker presented factual and expert testimony regarding flaws in the testing administration, causing her and other officers who had not re-qualified to fail. She also presented evidence of officers prohibited from carrying weapons who were accommodated by the JJC and who remained employed. Finally, she testified on her own behalf.
The ALJ's written decision recounted the testimony of all witnesses appearing at the hearing. In our opinion, we limit recital to the evidence necessary to address the issues raised on appeal.
John Moore, a qualified range master and instructor at the Training Academy at the time Sergeant Baker failed to qualify, identified the instruction provided to Sergeant Baker. He also addressed the need for weapons proficiency. Although noting JJC custodial staff members do not carry weapons within the facility's perimeter, he asserted the duty weapon was necessary when performing transportation, security outside the perimeter, and in the gate house and other circumstances mandating tactical training to protect the security and safety of others.
On cross-examination, Officer Moore stated he knew of four officers who failed to re-qualify since the JJC policy 11H-3.2 was adopted, all of whom, he believed, were terminated. He also confirmed there were certain JJC officers who were "prohibited" from carrying a weapon "for administrative purposes" or "pending domestic violence charges." The possible administrative purposes included medical or maternity leave, sick leave from injury or workers compensation requirements. Regarding officers prohibited from carrying weapons because of domestic violence involvement, Officer Moore suggested the JJC "follows the direction that's given from the Attorney General's office and the JJC Office of Investigations." In either case, Officer Moore knew of no officer identified as "prohibited" who was removed from his or her employment.
Officer Moore was asked to review what was termed a "Do Not Carry List" (DNC List). The July 24, 2012 DNC List contains the names of fourteen JJC law enforcement officers "prohibited" from carrying a firearm because they do not possess a valid or current firearms possession card. Included on the list was Sergeant Baker, who was assigned to work at Jamesburg, her last assigned post. Officer Moore also discussed a second list of the almost four hundred JJC officers, which identified whether each officer qualified after the Fall 2011 semi-annual re-qualification testing process. The latter list showed several officers had not been authorized to carry a weapon for more than three years.
Officer Moore identified the four officers on the DNC List whom he knew remained fully employed at Jamesburg. He noted they had not qualified with their service weapon for at least a year. Officer Moore believed generally those officers were "temporarily" prohibited from carrying weapons following an order in a domestic violence matter and pending an investigation. He also stated JJC policy requires those found guilty of domestic violence "be terminated from [a] law enforcement position."
Cross-examination also revealed Officer Moore had been transferred from supervising the range, sometime following Sergeant's Baker failure to qualify. He acknowledged complaints presented by the collective negotiations unit alleged his tactics and procedures were unnecessarily stressful causing four candidates to fail.
JJC Sergeant Joshua Doner, also a range master assigned as a supervisor at the Training Academy in Seagirt, was responsible for reviewing Sergeant Baker's re-qualification training and testing. He confirmed some JJC uniformed law enforcement officers "[had] not qualified" with their weapon, and others were "not permitted to possess a weapon because of domestic violence charges" but remained employed with the JJC. On cross-examination, Sergeant Doner stated he knew only two officers who could not re-qualify with a duty weapon and both were removed from duty. He agreed, however, functionally an officer who cannot possess a weapon because of domestic violence circumstances is indistinguishable from an officer who cannot possess a weapon because of an inability to re-qualify. Yet as far as he knew, all of the officers prohibited from carrying weapons for reasons other than failure to re-qualify remained employed.
Sergeant Andrei Martin, employed by the JJC and assigned to Jamesburg, testified on behalf of Sergeant Baker. Sergeant Martin viewed the July 24, 2012 DNC List and identified those individuals who remained employed at Jamesburg despite their inability to carry a weapon, some of whom had been "prohibited" from carrying for many years. He discussed the circumstances of one officer who he believed had an unresolved domestic violence matter and another who failed to graduate from the academy so she never qualified to carry a weapon.
Sergeant Martin, a negotiations representative for the officers' bargaining unit, also discussed difficulties candidates had experienced while Officer Moore supervised the Academy re-qualification program. Officer complaints contended Officer Moore's methods were not "conducive to learning" and at times his behavior was rude and disrespectful. Sergeant Martin suggested four officers failed to re-qualify while Officer Moore supervised the process, a development that had never before occurred. Sergeant Martin attributed this adverse result to Officer Moore's unacceptable and overly confrontational demeanor and methods. Further, he noted when Officer Moore was transferred and procedures were modified, all candidates satisfactorily re-qualified at the firing range.
Next, Sergeant Baker testified, asserting the use of a duty weapon was not essential for every post in the JJC and maintaining weapons re-qualification was not necessary for performance of her position. In this regard, she also discussed those officers who were prohibited from carrying weapons because of domestic violence restraining orders and one who never qualified with a weapon, but all of whom remained fully employed.
Sergeant Baker challenged the administration of the re-qualification test and the adequacy of the remediation program offered, explaining her objections to Officer Moore's manner and methods in conducting the re-qualification testing. She discussed difficulties with the .40 caliber Smith and Wesson that had been recently issued to JJC officers, who formerly used a different firearm during testing. Finally, she argued removal was an excessive penalty, not one mandated by the policy.
Sergeant Baker presented expert evidence showing the weapon used in the testing afforded an advantage to those with larger hands. The expert noted the increased kickback when fired repeatedly, which posed greater control difficulty for smaller persons, adversely affecting accuracy.
The ALJ's initial decision found the ability to effectively use a weapon was a condition of the Corrections Sergeant position, and was not obviated by the fact weapons are not carried inside the perimeter of the Jamesburg facility because weapons are necessary in the event of an emergency and are reasonably necessary to maintain security and control in the facility. The ALJ considered Sergeant Baker's evidence of what she asserted were conflicting policies allowing only certain corrections officers to serve while restricted from carrying and using weapons because they were involved in domestic violence. The ALJ distinguished these circumstances from Sergeant Baker's failure to re-qualify, accepting Officer Moore's assertion the treatment of officers restrained from use of a duty weapon because of an incident of domestic violence was imposed by Attorney General guidelines, not the JJC.
Finding Sergeant Baker failed to demonstrate proficiency with her duty weapon despite sufficient opportunity under conditions that did not thwart her ability to do so, the ALJ concluded the JJC proved Sergeant Baker was unable to perform her duties, and the sanction of removal was appropriate. After rejecting any suggestion progressive discipline principles applied to these facts, the ALJ affirmed the disciplinary action by the JJC.
Sergeant Baker filed exceptions, appealing the ALJ's determination. Upon its review, the CSC accepted and adopted the ALJ's findings and conclusions. It sustained the disciplinary charges and upheld Baker's removal from employment. The CSC addressed what it characterized as an accommodation to other officers legally restricted from carrying weapons because of alleged or actual commission of domestic violence. Further, the CSC concluded accommodating a temporary restriction did not excuse Sergeant Baker's inability to re-qualify. However, to the extent the JJC had officers with permanent orders against possession or use of a service weapon who remained employed, the CSC stated "the JJC is well advised to revisit its policy in this regard." Sergeant Baker's appeal ensued.
Our review of agency decisions is limited. Catholic Family & Cmty. Servs. v. State-Operated Sch. Dist., 412 N.J. Super. 426, 436 (App. Div. 2010). It is well settled that a "strong presumption of reasonableness attaches to the actions of administrative agencies." In re Carroll, 339 N.J. Super. 429, 437 (App. Div.) (citation and internal quotation marks omitted), certif. denied, 170 N.J. 85 (2001). We may not substitute our judgment for that of the agency. Rather, our review assesses whether the decision is "arbitrary, capricious, or unreasonable, or . . . lacks fair support in the record." Catholic, supra, 412 N.J. Super. at 436 (quoting In re Herrmann, 192 N.J. 19, 27-28 (2007)).
Accordingly, the party challenging the administrative action has the burden and must establish the agency's action was arbitrary, capricious or unreasonable. In re Arenas, 385 N.J. Super. 440, 443-44 (App. Div.), certif. denied, 188 N.J. 219 (2006). In our review, we will not disturb an administrative agency's determinations or findings unless the appellant shows the agency did not follow the law; its decision was arbitrary, capricious, or unreasonable; or its decision was unsupported by substantial credible evidence in the record. In re Virtua-West Jersey Hosp. Voorhees for a Certificate of Need, 194 N.J. 413, 422 (2008); see also Twp. Pharmacy v. Div. of Med. Assistance and Health Servs., 432 N.J. Super. 273, 283-84 (App. Div. 2013) (same).
However, an agency's interpretation of a statute or any legal determination is not accorded the same deference. "[W]here technical or specialized expertise is not implicated, and the issue is one of statutory interpretation, we owe no deference to the agency." A.Z. ex rel. B.Z. v. Higher Educ. Student Assistance Auth., 427 N.J. Super. 389, 394 (App. Div. 2012).
On appeal, Sergeant Baker reasserts the arguments she advanced in the administrative hearing. First, she maintains the facts show she is able to perform the functions of her position, which do not require the need to be qualified with a duty weapon. Second, she argues if a weapon is a requirement of her employment, she seeks the same accommodation afforded other officers suffering a legal impediment prohibiting he or she from carrying a weapon. Specifically, she highlights some officers on the DNC List have had continued employment without the ability to carry a weapon for years. Finally, if the charges are upheld, she urges reversal of the imposed sanction as unwarranted.
N.J.S.A. 52:17B-174 describes the qualifications and position of a juvenile corrections officer. More specifically, subsection (d) of that statute provides:
Each juvenile corrections officer shall by virtue of such employment and in addition to any other power or authority, be empowered to act as an officer for the detection, apprehension, arrest and adjudication of offenders against the law and . . . shall have the authority to possess and carry a firearm.Further, Attorney General issued guidelines dictate the semiannual firearms re-qualification standards for state law enforcement officers. See, Semi-Annual Firearms Qualification and Requalification Standards for New Jersey Law Enforcement (Attorney General's Standards), § 2 (definition of Semi-Annual Qualification), § 4 (Agency Training and Qualification Requirements), § 5 (Qualification Program) (June 2003), http://www.state.nj.us/lps/dcj/pdfs/dcj-firearms.pdf. To re-qualify, a candidate must shoot sixty rounds from various positions on the range, and score eighty percent or forty-eight shots within the target. Id. at Appendix A. Following a practice round, a candidate is given three opportunities to qualify. If a candidate fails, he or she is give remedial instruction and additional practice time. Id. at 9-13 to 9-15; 9-34.
[N.J.S.A. 52:17B-174(d).]
Section nine of the Attorney General's Standards address unsuccessful candidates and provides, in relevant part:
A participant who fails to achieve a passing score on a prescribed qualification course shall receive remedial instruction. This instruction shall be provided after the supervising firearms instructor analyzes the problems which may have led to the failure. The time allotted and method of remedial training to be conducted shall be determined by the supervising firearms instructor. The supervising firearms instructor, in consultation with the firearms instructors and the participant, will:
1. Review factors which may have contributed to or caused a participant's failure to qualify, including a check of the participant's firearm.
2. Document any subsequent attempts to qualify and the results of those attempts.
If after the remedial training and subsequent attempts to qualify the participant still does not fire a passing score, the supervising firearms instructor shall report this information to the chief or agency executive. The chief or agency executive will then determine what action is appropriate. The chief or agency executive is to notify in writing the county prosecutor (Division of Criminal Justice for some state agencies) of participants who fail to qualify on the service weapon.
If a participant fails to qualify, all targets that participant used during initial and subsequent qualification attempts (those conducted following remedial training) are
to be kept on file until the participant achieves a qualifying score. These targets are to be signed by both the non-qualifying participant and the firearms instructor.
[Id. at 9-20.]
Indeed, the Attorney General's Standards do not limit the number of opportunities a candidate is afforded prior to the imposition of a consequence for failure to meet the required minimum score. Nor do they mandate the termination of an officer's employment or, for that matter, designate any specific sanction to be imposed if an officer fails to qualify after remedial training. Ibid. Section nine requires only that the targets to be "kept on file until the participant achieves a qualifying score." Ibid. Therefore, the consequence attached to not re-qualifying rests in the discretion of the appointing authority, here the JJC. In this matter, the JJC authorized six attempts and relied on past practice and current policy, which was set forth in 11H-3.2 to dictate the disciplinary result of termination.
Although many duties and responsibilities performed by a JJC Correction Sergeant do not require use of a weapon, we cannot agree with Sergeant Baker's assertion that the inclusion of such a requirement to remain employed in the position is either arbitrary or unreasonable. Nor can we conclude that the qualification to use and the carrying of a service weapon are not essential functions of such position of employment.
Witnesses testifying during the administrative hearing listed those instances mandating a Corrections Sergeant be armed and, therefore, proficient with a service weapon. Included among these circumstances are: transportation of juveniles; duties outside the perimeter; and, most importantly, maintaining security within the facility, the gatehouse, as well as thwarting attempts to break into or out of the facility. The evidence of record fully supports the ALJ's finding: "The ability to re[-]qualify with the JJC's duty weapon is essential for full performance of the duties of [a] JJC [C]orrections [S]ergeant."
It also is not argued that JJC policy number 11H-3.2, requiring removal of JJC law enforcement officers who "cannot re[-]qualify with firearms semi-annually" was published and understood. The policy was designed to assure all law enforcement officers would "fully meet the job requirements of a JJC law enforcement officer."
Were the evidence in this matter limited to Sergeant Baker's failed attempts after adequate opportunities to re-qualify, we would determine this record contains adequate factual support to uphold the CSC's decision. The JJC's evidence shows the necessity for the re-qualification program and proof Sergeant Baker was treated fairly, in this regard. Also, there is no evidence to suggest limiting re-qualification attempts to six was arbitrary or capricious. However, this record contains other evidence showing certain JJC officers failed to meet the re-qualification requirements, but suffered no sanctions and remained fully employed. Accordingly, this evidence of disparity in the enforcement of the job requirements and re-qualification policy raises questions of fundamental fairness and the possibility of arbitrary conduct. Specifically, testimony and documents showed full-time corrections officers who have not re-qualified for several years, and one who purportedly never qualified to use a weapon, yet these officers never faced disciplinary charges for nonperformance. While the CSC generally categorized these instances as "temporary" and as involving restriction mandated by the Attorney General's domestic violence policy, this record does not support either of those findings.
The DNC List includes those law enforcement officers "prohibited" from carrying weapons, but who continued to work in their law enforcement positions. The List identified thirteen Jamesburg officers besides Sergeant Baker who could not carry weapons while at the facility. Checking these names against the semi-annual re-qualification list of all JJC officers, we note two have been disqualified and prohibited from carrying weapons since October 2008 and November 2008. Further, the list of all JJC law enforcement officers contains another officer assigned elsewhere, who has been prohibited from carrying a weapon since June 2008. We also note the expired gun authorization status of two other officers contained on the Jamesburg DNC List have existed since October 2008 and October 2010. The record does not explain the bases of such designations.
We cannot discern why these JJC law enforcement officers have been afforded extended periods of weapons disqualification without employment discipline or how the extended periods could possibly be considered "temporary." The only justification suggested, but not clearly explained or even linked to the specified officers, was the "prohibited" status resulted because of domestic violence and an accommodation was mandated by the Attorney General's guidelines.
The specific Attorney General guidelines relied upon by Officer Moore and the JJC are not identified. We have located and reviewed the "Departmental Policy for Handling of Domestic Violence Incidents Involving Law Enforcement Officers" prepared by the Division of Criminal Justice. See Office of the Attorney General, Departmental Policy for Handling of Domestic Violence Incidents Involving Law Enforcement Officers, http://www. state.nj.us/lps/dcj/agguide/DV-Model-Policy-Final-12-11-09.pdf (last viewed October 20, 2014). However, we do not find a provision in that policy mandating indefinite special employment treatment of officers prosecuted for domestic violence. To the contrary, in such instance, the policy directs disciplinary consequences should result.
Once a domestic violence complaint is filed, absent good cause, a hearing on whether the plaintiff establishes the need for entry of a final domestic violence restraining order must be held within ten days of the issuance of a temporary restraining order. N.J.S.A. 2C:25-29(a). We might agree a temporary accommodation appears appropriate for an officer accused, but not yet adjudicated of committing an act of domestic violence, because the period of disposition is short, which in fact would make the accommodation temporary. However, it is improbable that the officers identified as prohibited on the DNC List have merely been accused of domestic violence and await final adjudication; the period of prohibition could not be the result of a temporary restraining order. More likely, these officers, if prohibited from carrying weapons because of domestic violence, have been found to have committed domestic violence and remain enjoined from firearms possession following entry of a final restraining order. See N.J.S.A. 2C:58-3(c)(6) (prohibiting the issuance of a handgun purchase permit or firearms-purchaser identification card to a person who is subject to a domestic violence court order under N.J.S.A. 2C:25-29); see also 18 U.S.C.A. § 922(g)(8)(B) and (C) (barring firearm possession upon a court order that "restrains such person from harassing, stalking, or threatening an intimate partner of such person, . . . .").
But the record is murky. Sergeant Martin merely asserted he knew officers on the DNC List he believed were prohibited because of longstanding domestic violence restraining orders. On the other hand, Officer Moore, looking at the same DNC List, suggested the circumstances were temporary. Neither party offered conclusive evidence to resolve this apparent dispute and the documents admitted are not dispositive. Also, no explanation was provided as to why other JJC officers, who failed to re-qualify years ago, continued with employment. Absent these facts, it is not possible to determine whether JJC restrictions were available which did not mandate that a weapon be carried as Sergeant Baker asserted.
We also find unavailing the JJC's assertion of an Attorney General policy mandating an accommodation to officers convicted of an act of domestic violence. As we noted, the policy we located suggests otherwise. Further, we have difficulty reconciling the JJC's expressed need for rigid application of the re-qualification policy, with the notion that, other than the brief approximately ten-day span from issuance of a temporary restraining order to the date of the final hearing, special treatment should be extended for years to putative batterers. An officer prohibited from carrying a firearm after an adjudication of domestic violence cannot participate in semiannual re-qualification as mandated by 11H-3.2. Accordingly, these officers cannot meet the requirements of a Corrections Sergeant's position and also should face discipline. The fact that their impediment arises by operation of law rather than from an inability to achieve the minimum passing score is not a distinction which can support disparate application of the policy.
As Sergeant Baker noted, she missed re-qualification by four shots on one of three sections of the test for which she was cited for discipline and subject to termination, yet a corrections officer enjoined from possessing a weapon after commission of an act of domestic violence is possibly given an apparent special, indefinite assignment, without a service weapon. When the two circumstances are compared, the arbitrariness of such disparate treatment in the implementation of the same policy, requiring performance of all requisitions to maintain employment as a corrections officer, is illuminated: both officers failed to re-qualify; the veteran officer, with an unblemished service record who struggles but falls short is terminated; yet the officer who commits one of the designated criminal offenses and found guilty of domestic violence, N.J.S.A. 2C:25 2C:25-19(a)(1) to (14), is given an alternate, special assignment and keeps working.
Again, we are not suggesting the policy to terminate an officer who is unable to meet the standards defined for performance of the position is arbitrary and capricious. We are saying the evidence in this case suggests application of that policy in the instances described appears to be. Because the record is not clear, a remand is necessary to clarify the application of the re-qualification policy for all JJC officers.
We briefly address Sergeant Baker's challenge to the imposed sanction. First, the Attorney General's Standards do not mandate termination of an officer who has failed to re-qualify. Second, we understand the concept of progressive discipline is a "flexible" one intended "to promote proportionality and uniformity in the rendering of discipline of public employees." In re Stallworth, 208 N.J. 182, 195 (2011).
Progressive discipline is unnecessary when the conduct "renders the employee unsuitable for continuation in the position, or when application of the principle would be contrary to the public interest." In Re Herrmann, supra, 192 N.J. at 33. Further, "some disciplinary infractions are so serious that removal is appropriate notwithstanding a largely unblemished prior record." In re Carter, 191 N.J. 474, 484 (2007). The JJC needs competent and qualified officers who meet the re-qualification policy and the agency cannot afford to allow officers to backslide on the requirements of employment. Although we may find it difficult to accept that a longstanding officer who did not commit misconduct, but rather for the first time in twenty-two years failed to re-qualify with her weapon, should not have been considered for lesser sanction, such as a period of suspension without pay, rather than termination, we nevertheless recognize courts should not attempt to substitute their views of whether a particular penalty is correct for the body charged with making that decision. Ibid.
In summary, because the JJC appears to have created categories of officers who may work despite the inability to carry a firearm, that treatment must be afforded to all suffering a similar impediment. The policies must be revised to achieve uniform treatment for all officers who fail to re- qualify. Upon remand, further evidence of the treatment of all JJC officers who failed to re-qualify must be analyzed. If the disparate treatment as discussed in our opinion is verified, Sergeant Baker must be given the same opportunities as others who have also not re-qualified, because they too are legally barred from carrying a firearm.
If disparate treatment in the application of 11H-3.2 has occurred as discussed, the CSC's determination of discipline must be vacated. Thereafter, Sergeant Baker's circumstances must be assessed in light of the past practice of allowing other enforcement officers who failed to complete semi-annual weapons re-qualification, to continue employment.
Affirmed in part, reversed in part and remanded for additional proceedings. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION