Opinion
DOCKET NO. A-4625-11T4
07-08-2014
IN THE MATTER OF THOMAS WHITLEY, DEPARTMENT OF CORRECTIONS.
Darryl M. Saunders, attorney for appellant. John J. Hoffman, Acting Attorney General, attorney for respondent (Lewis A. Schiendlin, Assistant Attorney General, of counsel; Brandon Hawkins, Deputy Attorney General, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Espinosa and Koblitz.
On appeal from the Civil Service Commission, Docket No. 2012-1100.
Darryl M. Saunders, attorney for appellant.
John J. Hoffman, Acting Attorney General, attorney for respondent (Lewis A. Schiendlin, Assistant Attorney General, of counsel; Brandon Hawkins, Deputy Attorney General, on the brief). PER CURIAM
Thomas Whitley appeals from a final administrative agency decision to remove him from his position as a corrections officer with the Department of Corrections (DOC) based upon findings that he was guilty of conduct unbecoming of a public employee and violating a rule, regulation, policy, procedure, order or decision. We affirm.
Whitley was employed by the DOC as a corrections officer at Northern State Prison for twenty-four years, rising to the rank of lieutenant. He was admittedly familiar with the DOC's Human Resources Bulletin 84-19, which requires any employee to inform his supervisor of an arrest, summons or incarceration within forty-eight hours and to follow up the verbal communication with a written report. The Bulletin further provides that when arrested and charged with a third-degree crime, an employee must be suspended without pay pending the adjudication of the matter.
On November 2, 2010, in response to a call from a State Police detective, Whitley went to the State Police barracks in Holmdel, where he received a summons complaint for toll violations, was photographed, fingerprinted and given a date to appear in municipal court. The complaint charged Whitley with theft of services, a third-degree offense. Whitley admitted that he was required to report the fact he was charged with a third-degree crime to his supervisor, but did not do so. Whitley did not report the charge to his supervisor until June 3, 2011, after he was indicted and arraigned.
On June 13, 2011, Whitley was served with a Preliminary Notice of Disciplinary Action, charging him with conduct unbecoming a public employee, N.J.A.C. 4A:2-2.3(a)(6); other sufficient cause, N.J.A.C. 4A:2-2.3(a)(12); action involving criminal matter, N.J.A.C. 4A:2-2.7; and additional charges of violations of the Human Resources Bulletin. The specifications stated,
On 11-2-2010, You were arrested by the New Jersey State Police on a charge of Theft of services [N.J.S.A. 2C:20-8(a)], a third degree crime. You did not report the arrest until June 2 2011 after you were indicted on the same charge.
Thereafter, Whitley was issued a Final Notice of Disciplinary Action, sustaining all charges and imposing a penalty of removal. He appealed and, following a contested hearing in the Office of Administrative Law, the administrative law judge concluded that the charges of conduct unbecoming a public employee and violation of a rule, regulation, policy, procedure, order or administrative decision were sustained; that the falsification charge was not sustained; and affirmed the penalty of removal from employment. Following a de novo review, the Civil Service Commission adopted the findings of the administrative law judge and affirmed Whitley's removal from employment.
In this appeal, Whitley argues that the decision to remove him is a disproportionate penalty, based only on the violation committed and not reflecting the totality of the circumstances, which include no history of prior disciplinary infractions. This argument lacks merit.
Our review of a final agency decision is limited, see Aqua Beach Condo. Ass'n v. Dep't of Cmty. Affairs, 186 N.J. 5, 15-16 (2006), and we do not ordinarily overturn such a decision "in the absence of a showing that it was arbitrary, capricious or unreasonable, or that it lacked fair support in the evidence," Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963). When the issue raised is that a disproportionate penalty was imposed, the question presented 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." In re Polk License Revocation, 90 N.J. 550, 578 (1982) (internal quotation marks and citation omitted). Further, "we have recognized that 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) (citing Rawlings v. Police Dep't of Jersey City, 133 N.J. 182, 197-98 (1993), which upheld the dismissal of a police officer who refused drug screening as "fairly proportionate" to the offense).
Whitley's employment as a corrections officer required him to "present an image of personal integrity and dependability in order to have the respect of the public." Twp. of Moorestown v. Armstrong, 89 N.J. Super. 560, 566 (App. Div. 1965), certif. denied, 47 N.J. 80 (1966); see also In re Hall, 335 N.J. Super. 45, 51 (App. Div. 2000) (reversing the Board's decision to reduce the penalty imposed on a police officer for attempted theft from dismissal to suspension), certif. denied, 167 N.J. 629 (2001).
Whitley admitted he was required to report the events of November 2, 2010 to his supervisor. His failure to do so for seven months, until after he was indicted and arraigned, was an egregious violation of the applicable regulations. This was exacerbated by the fact that he continued to work when he was subject to an immediate suspension without pay as of the time he was charged. As the Commission observed, Whitley "exhibited a lack of integrity which is unacceptable for a correction officer in a supervisory position." We agree.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION