The opinion
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited . R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3889-22
A-2406-23
IN THE MATTER OF
IDESHA HOWARD.
IN THE MATTER OF
IDESHA HOWARD, ESSEX
COUNTY, DEPARTMENT
OF CORRECTIONS.
Argued September 11, 2025 – Decided September 26, 2025
Before Judges Marczyk and Bishop-Thompson.
On appeal from the New Jersey Civil Service
Commission, Docket Nos. 2023-1375 and 2023-2840.
Luretha M. Stribling (Luretha M. Stribling, LLC)
argued the cause for appellant Idesha Howard.
Courtney M. Gaccione and Alice M.B. Anderson
argued the cause for respondent County of Essex
(Chiesa Shahinian & Giantomasi, PC, attorneys;
Courtney M. Gaccione and Alice M.B. Anderson, on
the briefs).
Matthew J. Platkin, Attorney General, attorney for
respondent New Jersey Civil Service Commission
(Brian D. Ragunan, Deputy Attorney General, on the
statements in lieu of briefs).
PER CURIAM
In these back-to-back appeals, appellant Idesha Howard, who was
formerly employed as a corrections officer by respondent, the Essex County
Department of Corrections (Department), and worked at the Essex County
Correctional Facility (ECCF), appeals from the New Jersey Civil Service
Commission's (Commission) February 28, 2024 final administrative action
adopting the Office of Administrative Law's (OAL) initial decision sustaining
the disciplinary charges against Howard and upholding her removal. She further
appeals from the Commission's July 19, 2023 final administrative action
denying her motion for reconsideration of the Commission's December 7, 2022
decision, which denied her request for relief from her indefinite suspension
under N.J.S.A. 30:8-18.2 and N.J.S.A. 40A:14-201(a). We affirm.
I.
Howard was hired as a corrections officer by the ECCF in 2014. On
August 27, 2018, she worked the night shift from 10:00 p.m. to 6:00 a.m. and
provided coverage for another officer in the 2D3 unit from 1:00 a.m. until 2:00
a.m. while the officer was on break. Importantly, the 2D3 unit housed inmate
A-3889-22
2
L.V., who had previously attempted to harm himself and was subsequently
placed on suicide watch.
The Department has several policies that apply to supervision of inmates,
including the General Housing Unit Post Order Policy (GHU Policy), the Special
Housing Unit Policy (SHU Policy), and the Significant Self Harm and Suicide
Prevention and Intervention Policy (Suicide Prevention Policy).
The GHU Policy states "[i]nmates shall be personally observed by an
officer at least twice . . . per hour, but no more than thirty . . . minutes apart, on
an irregular schedule, on ALL housing units."
The SHU Policy states in relevant part:
Inmates . . . in the Close Custody SHU shall be
personally observed at least every thirty . . . minutes on
an irregular schedule. Inmates . . . who are violent or
mentally disordered or who demonstrate unusual or
bizarre behavior shall receive more frequent
observation; for such cases . . . the SHU personnel shall
personally observe them accordingly or as directed by
their immediate supervisor.
Suicidal inmates . . . shall receive observation in
accordance with PS.MED.005 INMATE . . . SUICIDE
PREVENTION AND INTERVENTION.
The Suicide Prevention Policy, section G, titled "Housing and
Monitoring," states in relevant part:
1. Constant Observation
A-3889-22
3
....
e. Suicidal inmates . . . will be
monitored by assigned officers who
maintain constant one-to-one visual
observation, twenty-four . . . hours a
day, until the inmate . . . is released
from suicide watch . . . .
f. The assigned officer makes a face to
face evaluation notation minimally
every fifteen . . . minutes on the
Close Custody Supervision Report –
Suicide Precautions Observation
Sheet.
g. Suicidal inmates . . . are to remain
under continuous constant
observation until seen by a
psychiatrist.
2. Close Observation . . .
a. Inmates on suicide precautions who
have not been placed in an isolated
confinement setting . . . will receive
documented close observation at
staggered intervals not to exceed
fifteen . . . minutes (e.g. [five], [ten],
[seven] minutes), checks at least
every eight . . . hours by clinical
staff, and daily mental health
treatment.
3. Electronic Surveillance . . .
a. Observation through electronic
surveillance systems may be used to
A-3889-22
4
observe inmates and to observe
inmates during movements and other
activities and only when approved by
the Facility Administrator or
designee.
b. Electronic surveillance shall not
substitute for regular contact with
staff members.
[(Emphasis omitted).]
According to the Close Custody Supervision Report – Constant/Close
Observation Sheet (Close Custody Supervision Report) Howard was required to
follow and complete, on August 28, 2018, she conducted a custody check of
L.V. at 1:00 a.m., 1:16 a.m., 1:30 a.m., 1:46 a.m., and 2:01 a.m. It should be
noted the Close Custody Supervision Report states: "Close Custody checks must
be conducted every [fifteen] minutes and indicated so by the officer below."
However, Howard admitted that while she conducted the 1:16 a.m. and 1:46 a.m.
close custody checks in-person, she did not conduct an in-person close custody
check of L.V. at 1:00 a.m., 1:30 a.m., or 2:01 a.m. Rather, she claims she
monitored L.V. by viewing the live feed from the camera inside his cell.
At approximately 1:46 a.m., the camera in L.V.'s cell was obstructed when
L.V. covered the camera with wet paper towels. The camera remained covered
A-3889-22
5
until 6:00 a.m., when L.V. was found hanging in his cell. L.V. was pronounced
dead at 6:27 a.m.
On September 24, 2018, the Essex County Prosecutor's Office (ECPO)
notified the ECCF Director (Director) that the ECPO was investigating the
August 28 incident. The ECPO advised the Director that any "administrative
investigation should cease. The . . . forty[-]five[-]day rule is tolled." The ECPO
subsequently charged Howard on March 3, 2022, with knowingly engaging in
conduct which creates a substantial risk of death to another person, N.J.S.A.
2C:24-7.1(a)(3); and knowingly making a false record, with the intent to
defraud, N.J.S.A. 2C:28-7(a)(1).
In response to the criminal charges, the Director issued a preliminary
notice of disciplinary action (PNDA) on March 3, 2022 (March 3, 2022 PNDA
or initial PNDA) to Howard, charging her with: failure to perform duties,
N.J.A.C. 4A:2-2.3(a)(1); conduct unbecoming of a public employee, N.J.A.C.
4A:2-2.3(a)(6); neglect of duty, N.J.A.C. 4A:2-2.3(a)(7); and "[o]ther sufficient
cause," N.J.A.C. 4A:2-2.3(a)(12), based on the criminal charges, and for
"[v]iolation of [d]epartment [p]olicies and [p]rocedures." Pursuant to the March
3, 2022 PNDA's recommendation, Howard was immediately suspended pending
disposition of the criminal charges.
A-3889-22
6
The ECPO dismissed the criminal charges against Howard on July 12,
2022, and notified the Internal Affairs Department of the ECCF (ECCF IA) on
July 13, 2022, regarding the dismissal. The ECCF IA conducted an
administrative investigation, which concluded on August 20, 2022.
Subsequent to receiving the ECCF IA investigation report, the Director
issued a supplemental PNDA on August 31, 2022 (August 31, 2022 PNDA),
restating the civil service rule violations: failure to perform duties, N.J.A.C.
4A:2-2.3(a)(1); conduct unbecoming of a public employee, N.J.A.C. 4A:2-
2.3(a)(6); neglect of duty, N.J.A.C. 4A:2-2.3(a)(7); and "[o]ther sufficient
cause," N.J.A.C. 4A:2-2.3(a)(12). The "[o]ther sufficient cause" included
violations of the Department's policies and procedures, post orders, and the
Department's rules and regulations: competence, truthfulness, neglect of duty,
standard of conduct, knowledge of rules and regulations, and withholding
information or giving false information.
The Department held a disciplinary hearing, and in February 2023, the
Hearing Officer sustained the charges set forth in the August 31, 2022 PNDA
and recommended Howard be removed from her employment. Howard appealed
to the OAL, and a hearing proceeded in front of an Administrative Law Judge
A-3889-22
7
(ALJ) for five days in September and October 2023. Both parties presented
witnesses and documentary evidence.
The Department called Lieutenant Carlos Zapata, who worked as a
sergeant supervisor for the ECCF IA at the time of the incident. He testified he
compared the surveillance video in the corridor to the entries made by Howard.
Lieutenant Zapata stated Howard only made two in-person observations out of
the five entries she recorded. He further noted L.V. had covered the camera at
1:46 a.m., and therefore, Howard could not have observed him via the
surveillance cameras after that time.
On cross-examination, Lieutenant Zapata explained the distinction
between close observation and constant observation. He explained the
"difference is on a constant observation you're posting an officer right in front
of the cell [twenty-four hours a day]. On a close observation the officer . . .
doesn't need to be in front of the cell, but has to check the inmate . . . at least
every [fifteen] minutes." He noted L.V. was on close observation. He agreed
the Close Custody Supervision Report also had the "[c]onstant [e]lectronic" box
checked off, which he explained meant the inmate is placed in a cell with a
camera. Thus, an officer's responsibilities regarding an inmate on constant
electronic observation are "one . . . to view . . . that inmate on the camera and
A-3889-22
8
two, to do [the] [fifteen]-minute [face-to-face] checks." Constant electronic
observation means "the inmate is placed [in] a camera cell. So [they] can also
be observed . . . from the [desk]. This is in addition to the face-to-face [checks]
every . . . [fifteen]-minute[s]." Lieutenant Zapata acknowledged the lack of
express language in the Suicide Prevention Policy's Electronic Surveillance
section indicating the electronic surveillance would be "in addition to" the in -
person checks. However, he noted the policy states the "[e]lectronic
surveillance shall not substitute for regular contact with staff members." He
testified, "[A]ny inmate . . . placed in constant [observation] or close
[observation] has to be checked every [fifteen] minutes."
Howard called Lieutenant Wally Gibson as a witness. He confirmed that
an officer was still responsible for conducting in-person observations even if an
inmate was on constant electronic observation.
Howard also called retired Captain Vera Cornelius, who had worked for
the Department for sixteen years. She testified that constant observation under
the Suicide Prevention Policy meant an officer would normally sit in front of
the inmate's cell twenty-four hours a day. Captain Cornelius explained that
inmates were placed in camera cells to "help out with the manpower." She stated
SHU observations are required every thirty minutes. The captain testified there
A-3889-22
9
is a difference between a desk officer and a tier officer, and she explained a desk
officer would observe inmates via the camera while "sitting at the desk where
the screens are." Conversely, a tier officer "would . . . walk down and . . . check
all" the inmates. The tier officer "has to walk down the tier, walk down to the
. . . unit to do their tours. There is no [T.V.] or something they could keep
looking at while they're walking, that's the desk person." Captain Cornelius also
stated that a tier officer is not responsible for monitoring the cameras like the
desk officer, but rather, is responsible for in-person checks and filling out the
Close Custody Supervision Report.
Captain Cornelius explained constant electronic supervision was "meant
to take the place of . . . an officer being in front of" an inmate's cell twenty-four
hours a day. A tier officer would take the Close Custody Supervision Report
"in hand and walk down the tier checking off" the report. She also explained
that if a camera is blocked, the desk officer would notify their immediate
supervisor to get the camera cleaned.
Investigator Vincent Conti was also called to testify for Howard. He
conducted the IA investigation on behalf of the Department regarding the death
of L.V. He testified his findings were that Howard falsified the Close Custody
Observation Report by reporting the conduct of inmate tours not corroborated
A-3889-22
10
by video evidence. Specifically, he noted a review of the surveillance video
only confirmed two out of the five tours logged by Howard.
The ALJ issued his initial decision on February 1, 2024, upholding
Howard's removal from employment. He found the Department "established by
a preponderance of the competent, relevant, and credible evidence that . . .
[Howard] committed the charged offenses" in the August 31, 2022 PNDA, and
thus, "removal [wa]s warranted because the falsification of the [C]lose
[C]ustody [O]bservation [R]eport . . . [wa]s such a serious offense that it 'strikes
at the heart of discipline within the corrections system.'" (quoting In re Warren,
117 N.J. 295, 299 (1989)). He found under the Department's "written policy,"
L.V. "was required to have in-person observations by a corrections officer in
fifteen-minute intervals," and "it was part of [Howard]'s job duties on . . . August
28, 2018, to perform in-person checks of L.V. every fifteen minutes and
document those checks in the [C]lose [C]ustody [O]bservation [R]eport for
L.V." He further noted:
[Howard] documented in the [C]lose [C]ustody
[O]bservation [R]eport that she performed in-person
checks of L.V. at 1:00 a.m., 1:16 a.m., 1:30 a.m., 1:47
a.m., and 2:01 a.m. Video surveillance showed that
[Howard] only performed in-person checks at 1:16 a.m.
and 1:45 a.m. . . . , despite entries in the [C]lose
[C]ustody [O]bservation [R]eport indicating otherwise.
Additionally, [she] noted in the [C]lose [C]ustody
A-3889-22
11
[O]bservation [R]eport that L.V. was quiet at 1:30 a.m.
Video footage revealed that at that time, L.V. was
repeatedly kicking his cell door with his legs and was
not quiet.
The ALJ noted Howard contended: "she was only obligated to perform
in-person checks of L.V. every [thirty] minutes"; "she performed checks of L.V.
at 1:00 a.m., 1:30 a.m., and 2:00 a.m. by observing him remotely via the camera
in his cell"; and she "did not make the 2:01 a.m. entry in the [C]lose [C]ustody
[O]bservation [R]eport," but rather, "an unknown third party made that entry."
He determined:
[Howard's] arguments lack[ed] merit and credibility.
[She] could have performed in-person observations of
L.V. every [thirty] minutes if L.V. was housed in
general population. However, L.V. was housed in a
special tier as he was deemed a suicide risk. Therefore,
per [the Department]'s written policy, [Howard] was
required to make observations of L.V. every [fifteen]
minutes. . . . Per [the Department]'s written policy,
[she] was required to make those observations in-
person. . . . Additionally, testimony from . . . Captain
Cornelius established that it was the responsibility of
the desk officer to monitor cell cameras and the tier
officer to make in-person observations of inmates. As
[Howard] was a tier officer, she was not responsible for
monitoring cell cameras[.] Additionally, the camera in
L.V.'s cell was blocked from 1:46 a.m. to 6[:00] a.m.
As a result, [she] could not have observed L.V. via the
cell camera as she said she did. [Howard]'s arguments
that she did not make the 2:01 a.m. entry in the [C]lose
[C]ustody [O]bservation [R]eport is belied by the fact
that the entry is in her handwriting and has her name
A-3889-22
12
affixed to it. . . . I give [Howard]'s arguments no weight
whatsoever.
As a result, the ALJ determined "[Howard] was required as part of her job
duties on August 28, 2018, between 1:00 a.m. and 2:00 a.m. to perform [fifteen]
minute in-person checks of L.V. and that [she] did not do so"; "that the entries
that [Howard] made in the [C]lose [C]ustody [O]bservation [R]eport reflecting
that she performed in-person checks of L.V. at 1:00 a.m., 1:30 a.m., and 2:01
a.m. were false"; and "that [Howard] did not perform those in-person checks and
that she falsified those entries on the [C]lose [C]ustody [O]bservation [R]eport."
Based on these findings, he found the Department "met its burden on the[] . . .
disciplinary charges and that the . . . charges against [Howard] must be upheld.
Based upon the serious nature of [Howard]'s falsification of the [C]lose
[C]ustody [O]bservation [R]eport . . . removal [wa]s the appropriate penalty."
On February 28, 2024, the Commission issued its final decision, adopting
the ALJ's findings of fact and conclusions. However, the Commission noted the
ALJ's penalty discussion was limited.1 Nevertheless, the Commission found:
[w]hile the ALJ's penalty discussion was brief, the
Commission agree[d] that removal [wa]s the proper
1
The Commission expressed its preference for ALJs "to indicate, for example:
an appellant's previous disciplinary history, if any; whether the recommended
penalty is based on an application of progressive discipline; and a description of
any aggravating or mitigating factors . . . considered, if any."
A-3889-22
13
penalty [despite Howard's lack of a known disciplinary
history] . . . . The infractions . . . [Howard] committed
[we]re egregious and pose[d] a serious safety and
security risk in a secured facility. Moreover, . . .
[Howard]'s submission of false reports indicating work
that was not actually performed [wa]s of great
concern. . . . [She] [wa]s a law enforcement officer,
who [wa]s held to a higher standard, where such serious
misconduct cannot be tolerated. Accordingly, the
Commission agree[d] with the ALJ that . . . [Howard]'s
conduct was egregious and wholly inappropriate for a
law enforcement officer and worthy of removal without
regard to progressive discipline. . . . [Her] actions
would clearly tend to undermine the public trust and as
such, the Commission [found] the penalty of removal
neither disproportionate to the offense nor shocking to
the conscious.
Turning to Howard's appeal from the Commission's July 19, 2023
procedural decision denying her motion for reconsideration, Howard notes that
after the criminal charges were dismissed on July 12, 2022, she "was not served
with [the August 31, 2022] PNDA within [forty-five] days after the dismissal of
the criminal charges as was required per N.J.S.A. 30:8-18.2." She asserts she
was served with the August 31, 2022 PNDA on September 10, 2022, "which was
out of time."
On September 11, 2022, Howard appealed to the Commission for interim
relief, citing procedural defects surrounding the forty-five-day rule. She argued
the August 31, 2022 PNDA was issued out of time because the forty -five-day
A-3889-22
14
rule under N.J.S.A. 30:8-18.2 started to run on July 13, 2022, the day after the
criminal charges were dismissed. She also contended that because she was
suspended on March 3, 2022, N.J.S.A. 40A:14-201(a) required a final
determination within 180 days from the date of her suspension, and thus she
should have been returned to payroll on August 31, 2022.
The Commission issued its decision on December 7, 2022, granting
Howard back pay for the period of July 13, 2022, through August 31, 2022, but
denied all other interim relief, finding the forty-five-day rule had not been
violated, and the 180-day rule was inapplicable. Specifically, the Commission
found Howard's reliance on N.J.S.A. 40A:14-201(a), the 180-day rule, was
"misplaced," as "there was clearly a criminal investigation and criminal charges.
Accordingly, the 180-[day] rule [was] not implicated" regarding her suspension.
The Commission also found Howard's reliance on N.J.S.A. 30:8-18.2, the
forty-five-day rule, was "misplaced" because
[t]here is no indication in the statute that the passage
. . . "the [forty-five]-day limit shall begin on the day
after the disposition of the criminal investigation" was
meant to subvert an appointing authority's ability to
conduct a proper investigation after the disposition of
criminal charges and deprive the person filing the
complaint from obtaining sufficient information to file
the matter.
[(Quoting N.J.S.A. 30:8-18.2).]
A-3889-22
15
The Commission also relied on Roberts v. State, Division of State Police,
191 N.J. 516, 526 (2007), where our Supreme Court interpreted a similar statute,
N.J.S.A. 53:1-33,2 and adopted our holding that "[i]t would be illogical for the
Legislature to have provided the necessary investigative period to determine
whether disciplinary charges should issue when no criminal conduct has been
alleged, but to have shortened that period when potential criminal conduct is
under investigation." (quoting Roberts v. State, Div. of State Police, 386 N.J.
Super. 546, 552-53 (App. Div. 2006) (alteration in original)). The Commission
determined "the person filing the complaint, filed the August 31, 2022 PNDA
only [eleven] days after receiving sufficient information to do so. Therefore, no
[forty-five]-day rule violation [wa]s evident."
However, the Commission noted:
Upon dismissal of the criminal charges, an employee is
entitled to immediate reinstatement to employment
following an indefinite suspension or prompt service of
any remaining administrative charges upon which the
appointing authority wishes to base disciplinary action.
Even when an employee is ultimately removed . . . [they
are] entitled to an award of back pay for the period
between dismissal of the criminal charges and service
of a PNDA setting forth any remaining administrative
charges.
2
N.J.S.A. 53:1-33 imposes a forty-five-day time limit similar to the one
imposed by N.J.S.A. 30:8-18.2, except that it applies only to the State Police.
A-3889-22
16
Thus, because the criminal charges against Howard were dismissed on July 12,
2022, and she "was not returned to work thereafter and a new PNDA was not
issued until August 31, 2022," the Commission found she was "entitled to back
pay from July 13, 2022[,] to August 31, 2022." The Commission denied "any
further interim relief." Howard moved for reconsideration.
On July 19, 2023, the Commission issued a final decision denying
Howard's request for reconsideration. In response to Howard's argument that
the 180-day rule applied because the charges in the March 3, 2022 PNDA
stemmed from events that took place on August 28, 2018, the Commission found
such an argument "was not made in the initial interim relief request," and
"[r]egardless," N.J.S.A. 40A:14-201 "only applies to administrative charges and
not criminal charges," and this matter "originally involved criminal charges." It
also noted "there [wa]s no evidence that the person authorized to bring
administrative charges had sufficient knowledge to do so at any time prior to
August 31, 2022. Thus, no violation of the [forty-five-day] rule [wa]s evident."
The Commission also found Howard's argument Roberts did not apply
because it interpreted a different statute, "unpersuasive," as it was previously
addressed. Regarding Howard's argument pursuant to N.J.S.A. 40A:14-149.2,
that she was entitled to back pay starting from her initial suspension on March
A-3889-22
17
3, 2022, until the issuance of the August 31, 2022 PNDA, rather than starting
from the date of the dismissal of the criminal charges, the Commission found
Howard failed to "address the fact that N.J.S.A. 40A:14-149.2 specifically
applies only to municipal police officers and d[id] not provide any evidence of
a similar statute for Correctional Police Officers."
Howard also argued that once the criminal charges were dismissed, the
ECCF IA investigator testified he conducted no further investigation prior to the
August 31, 2022 PNDA being issued, and this showed the forty-five-day rule
was violated. The Commission was "not persuaded," and noted Howard
provided only "mere allegations" to confirm her claims about the investigator's
testimony being accurate. It further found "there [wa]s no evidence that another
individual did not perform some investigation or, more importantly, that the
person authorized to bring the charges had sufficient evidence to do so before
being provided a complete investigation report." The Commission also noted it
"already remedied that delay in its prior decision by granting back pay for that
period."
II.
In No. A-2406-23, Howard argues the ALJ acted in an arbitrary and
capricious manner, resulting in a decision inconsistent with the evidentiary
A-3889-22
18
record. She contends the ALJ disregarded the testimony of her witnesses
concerning the standard procedures for conducting inmate observations,
including documenting Close Custody Observation sheets and the monitoring of
inmates via surveillance video. She further asserts the ALJ erred in not allowing
her to treat Investigator Conti as an adverse witness and interfered in the
questioning of various witnesses. Howard also argues the ALJ exhibited bias in
favor of the Department and adopted the testimony of Lieutenant Zapata, who
contradicted established policies.
In No. A-3889-22, Howard argues the Commission acted arbitrarily in
disregarding the requirements of N.J.S.A. 30:8-18.2. Additionally, she contends
the Commission failed to return her to work with back pay when the criminal
charges were dismissed. She maintains the Commission misinterpreted the start
date for the forty-five-day rule in the context of a dismissed criminal matter.
Lastly, Howard argues the Commission's failure to issue a decision within 180
days of departmental charges contravenes N.J.S.A. 40A:14-201(2)(a).
The scope of our review of agency decisions is narrow. Appellate courts
review decisions "made by an administrative agency entrusted to apply and
enforce a statutory scheme under an enhanced deferential standard." E. Bay
Drywall, LLC v. Dep't of Lab. & Workforce Dev., 251 N.J. 477, 493 (2022)
A-3889-22
19
(citing Hargrove v. Sleepy's, LLC, 220 N.J. 289, 301-02 (2015)). That enhanced
deference stems, in part, from "the executive function of administrative
agencies." Mazza v. Bd. of Trs., Police & Firemen's Ret. Sys., 143 N.J. 22, 25
(1995). "An agency's determination on the merits 'will be sustained unless there
is a clear showing that it is arbitrary, capricious, or unreasonable, or that it lacks
fair support in the record.'" Saccone v. Bd. of Trs., Police & Firemen's Ret.
Sys., 219 N.J. 369, 380 (2014) (quoting Russo v. Bd. of Trs., Police & Firemen's
Ret. Sys., 206 N.J. 14, 27 (2011)). The reviewing court "does not substitute its
judgment of the facts for that of an administrative agency." Campbell v. N.J.
Racing Comm'n, 169 N.J. 579, 587 (2001) (citing Clowes v. Terminix Int'l, Inc.,
109 N.J. 575, 587 (1988)). Rather, the reviewing court "defer[s] to matters that
lie within the special competence" of the administrative agency. Balagun v. N.J.
Dep't of Corr., 361 N.J. Super. 199, 202 (App. Div. 2003). The party
challenging the administrative action bears the burden of making that showing.
Lavezzi v. State, 219 N.J. 163, 171 (2014).
On appeal, the judicial role in reviewing an administrative action is
generally limited to three inquiries:
(1) whether the agency's action violates express or
implied legislative policies, that is, did the agency
follow the law;
A-3889-22
20
(2) whether the record contains substantial evidence to
support the findings on which the agency based its
action; and
(3) whether in applying the legislative policies to the
facts, the agency clearly erred in reaching a conclusion
that could not reasonably have been made on a showing
of the relevant factors.
[Allstars Auto Grp., Inc. v. N.J. Motor Vehicle
Comm'n, 234 N.J. 150, 157 (2018) (quoting In re
Stallworth, 208 N.J. 182, 194 (2011)).]
"When an agency's decision meets those criteria, then a court owes
substantial deference to the agency's expertise and superior knowledge of a
particular field." In re Herrmann, 192 N.J. 19, 28 (2007). Furthermore, "[w]here
there is substantial evidence in the record to support more than one regulatory
conclusion, it is the agency's choice which governs." In re Adoption of Amends.
to Ne., Upper Raritan, Sussex Cnty., 435 N.J. Super. 571, 583 (App. Div. 2014)
(internal quotation marks omitted) (quoting Murray v. State Health Benefits
Comm'n, 337 N.J. Super. 435, 442 (App. Div. 2001)). "If [an a]ppellate [court]
is satisfied after its review that the evidence and the inferences to be drawn
therefrom support the agency head's decision, then it must affirm even if the
court feels that it would have reached a different result itself." Id. at 584
(quoting Clowes, 109 N.J. at 588).
A-3889-22
21
We review an agency's disciplinary sanction under a similar deferential
standard and only modify a sanction "when necessary to bring the agency's
action into conformity with its delegated authority." In re 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 In re 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 In re Polk, 90 N.J. at 578 (internal citation and quotation marks
omitted)).
A.
Howard asserts she "adhered to" the GHU and SHU policies "because she
conducted tours of the tiers on which the inmates were housed in cells every
thirty minutes and the tours were documented on the Close Custody"
Supervision Report. She argues she followed the policies by "engaging in
electronic observations of the [i]nmates in camera cells following the time
requirements and touring the cells every thirty minutes." Howard contends she
"monitored the [i]nmates electronically at the times between the tours which
A-3889-22
22
resulted in either electronic monitoring or personal observation of the [i]nmates
in camera cells every fifteen minutes." She asserts the GHU and SHU policies
were "disregarded by the ALJ," who she contends "reached a conclusion . . .
inconsistent with the . . . policies and procedures, the camera footage and the
testimony of the witnesses." Howard concedes she only personally observed
L.V. at 1:16 a.m. and 1:46 a.m. and that she observed him via the surveillance
cameras at 1:00 a.m. and 1:30 a.m.
Howard asserts Lieutenant Zapata "erroneously testified that inmates on
close observation have to be monitored every fifteen minutes" and that the
constant electronic observation policy did not require an officer to go to the
inmate's cell every fifteen minutes. She further claims the ALJ did not discuss
the testimony of Captain Cornelius, Lieutenant Gibson, and Sergeant James
Miller in his decision. She asserts that consistent with the policies, her
"observations would consist of electronic monitoring at the desk and tours twice
per hour." She contends that under the Suicide Prevention Policy, "[c]onstant
[o]bservation requires that the inmate have an assigned officer whose sole
responsibility is to sit outside of that inmate's cell and every fifteen minutes, the
officer must stand up and look into the cell to observe the inmate." On the other
hand, she asserts "[c]onstant [e]lectronic [observation] allows for monitoring of
A-3889-22
23
the inmates in camera cells by viewing the inmates on the monitor," and L.V.
was on constant electronic observation. Thus, she contends L.V. "was on
'[c]onstant [e]lectronic' monitoring[,] which meant that he was entitled to a tour
. . . every thirty minutes."
We are unpersuaded by Howard's argument that the ALJ failed to properly
consider all the evidence because he did not reference the testimony of Captain
Cornelius, Lieutenant Gibson, and Sergeant Miller. It is sufficiently established
that "credibility is an issue which is peculiarly within the [factfinder's] ken."
State v. J.Q., 252 N.J. Super. 11, 39 (App. Div. 1991). The deference owed to
an administrative agency decision is particularly appropriate when the agency
adopts the ALJ's findings because the ALJ had the opportunity to hear live
testimony and judge the witness's credibility. Clowes, 109 N.J. at 587-88.
Moreover, an ALJ is "not required to discuss the testimony and the statements
of every witness and describe in detail why he found some more credible than
others." Marjarum v. Twp. of Hamilton, 336 N.J. Super. 85, 100 (App. Div.
2000).
Howard's assertion that the ALJ ignored Captain Cornelius's testimony is
belied by the record, as the ALJ's initial decision noted Captain Cornelius
explained the difference between a tier officer and a desk officer, and that
A-3889-22
24
Howard was a tier officer on the night in question. Furthermore, Captain
Cornelius's testimony was consistent with Lieutenant Zapata's testimony that a
tier officer was responsible for in-person checks in addition to the desk officer
conducting a review of the surveillance cameras under the Constant Electronic
Observation policy. The ALJ was not required to accept the testimony of
Lieutenant Gibson or Sergeant Miller, and he was permitted to interpret the
policies and make findings based on the testimony and evidence he found
credible. He sufficiently articulated his findings and connected them to his legal
conclusions.
More fundamentally, the record amply supported the ALJ's findings as
adopted by the Commission. Howard acknowledged she did not conduct close
observations of L.V. every fifteen minutes, but instead relied on electronic
monitoring for her observations at 1:00 a.m. and 1:30 a.m. She maintains this
was permitted under the policies. We are unpersuaded by her contentions.
Although the GHU and SHU policies allow for personal observation every
thirty minutes in certain circumstances, the SHU policy establishes more
frequent observation requirements for inmates who are suicidal. Moreover, the
Suicide Prevention Policy clearly supersedes the GHU and SHU policies and
thus guides our analysis.
A-3889-22
25
The Suicide Prevention Policy's Close Observation section requires
inmates not placed in isolated confinement to "receive documented close
observation" "not to exceed fifteen . . . minutes." Although electronic
surveillance is also permitted with the approval of the "Facility Administrator,"
the Suicide Prevention Policy specifically provides, "Electronic surveillance
shall not substitute for regular contact with staff members." The Close Custody
Supervision Report required electronic observation of L.V. However, this did
not eliminate the requirement for in-person observations. L.V. was on close
observation, as evidenced by the Close Custody Supervision Report, and
therefore required "documented close observation" every fifteen minutes.
Because L.V. was noted to be suicidal, he was required to have "close custody
checks" pursuant to the policy and as noted on the Close Custody Supervision
Report.
Even if we were to adopt Howard's interpretation of the Suicide
Prevention Policy and her contention that electronic monitoring was sufficient
to fulfill her obligations, there was still sufficient credible evidence in the record
for the ALJ and the Commission to find she falsified the Close Custody
Supervision Report. Howard noted on the Close Custody Supervision Report
that everything was quiet at 2:01 a.m. However, the ALJ determined visual
A-3889-22
26
access to L.V.'s cell by the camera was impeded by the paper towels, and it
would have been impossible for Howard to see L.V. through the camera. Thus,
even if the in-person checks were only required for the two times Howard
asserts, she still fabricated the Close Custody Supervision Report by
documenting checks that did not actually occur. Accordingly, we conclude the
Commission's decision was not arbitrary, capricious, or unsupported by the
record.
B.
Howard contends the ALJ and opposing counsel repeatedly interrupted
her counsel's questioning of Investigator Conti, and the ALJ refused to allow
him to be questioned as an adverse witness. She also asserts the ALJ's actions
exhibited bias when he engaged in "detailed questioning" of Howard's witness.
She further claims the ALJ failed to engage in a progressive discipline analysis.
Moreover, Howard contends the Commission "rubberstamped" his conclusion.
Howard alleges the "fact that there was any belief that [Investigator] Conti
was not adverse to [her] . . . was unreasonable, . . . arbitrary, capricious and
inconsistent with the law." During her counsel's questioning of Investigator
Conti, the Department's counsel objected to the line of questioning, to which her
A-3889-22
27
counsel responded she was calling Investigator Conti "as an adverse witness."
The following colloquy occurred:
[ALJ]: Did you say that you considered Investigator
Conti an adverse witness?
[Counsel]: He was called an adverse witness because
he's not my witness. He was their witness at the hearing
and certainly his position is adverse to my client.
[ALJ]: . . . To be considered an adverse witness, . . .
there are two pieces of foundation that need to be laid.
Number one, that the witness is not responsive to your
questions, or two, that the witness has shown that he is
adverse in his responses. . . .
[Counsel]: . . . [H]e was not my witness at the [internal]
hearing. He's not a witness . . . beneficial to . . .
Howard.
[ALJ]: I don't know that. . . .
....
[ALJ]: And what you may have wanted to do in calling
Investigator Conti was to establish the steps that he
took in the investigation. I don't know if that's adverse
to . . . Howard or not . . . . I believe that the foundation
necessary for the court to find out what was adverse and
give you the opportunity to lead that witness is what I
described . . . . I had not seen that as of yet.
....
[ALJ]: I think that Investigator Conti has been as
responsive as he can be.
A-3889-22
28
"When a party calls an adverse party or a witness identified with an
adverse party, or when a witness demonstrates hostility or unresponsiveness,
interrogation may be by leading questions, subject to the discretion of the court. "
N.J.R.E. 611(c). "[A]ctual antagonism between the examiner and witness is the
cornerstone for permission under [Rule 611(c)] to lead." Biunno, Weissbard &
Zegas, Current N.J. Rules of Evidence, cmt. 8 on N.J.R.E. 611 (2025-2026).
"The control of examination, both direct and cross, resides in [the trial judge]"
whose "discretion . . . is a broad one [which] we will not interfere with . . .
absent a clear abuse of . . . discretion." Cestero v. Ferrara, 110 N.J. Super. 264,
273 (App. Div. 1970) (citations omitted).
Howard did not identify Investigator Conti as adverse on her witness list.
Moreover, the ALJ here did not find Investigator Conti to be hostile when the
issue was initially raised. Later in the testimony, in response to an objection by
the Department, the judge noted:
I'm also going to note for the record that I have found
[counsel]'s questions to be leading. I have given
room. . . . I believe that [counsel] wishes to have this
witness declared as adverse, that application has not
been made, so I have not ruled upon it, but I'm trying to
accommodate [counsel] as best as I can, so I'm going to
respectfully overrule the objection.
A-3889-22
29
Howard's counsel did not raise the issue again. We do not find Howard's
counsel's attempt to question Investigator Conti was thwarted by the ALJ, who
explained the procedure for declaring a witness as adverse. Furthermore,
Howard was permitted to lead Investigator Conti at various times, and she does
not point to any issue she was not permitted to address in questioning
Investigator Conti. The ALJ did not misapply his discretion.
Regarding Howard's contentions the ALJ questioned her witnesses more
than her adversary, we note, "[i]n a bench trial . . . , a judge may examine
witnesses to clarify testimony, aid the court's understanding, elicit material
facts, and assure the efficient conduct of the trial." D.M.R. v. M.K.G., 467 N.J.
Super. 308, 320-21 (App. Div. 2021) (first citing State v. Medina, 349 N.J.
Super. 108, 131 (App. Div. 2002); and then citing N.J.R.E. 614).
"The intervention of a trial judge in the questioning of a witness is both a
power and a duty, and forms part of the judiciary's general obligation to ensure
a fair trial 'conducted in [an] orderly and expeditious manner.'" Medina, 349
N.J. Super. at 130-31 (alteration in original) (quoting State v. Laws, 50 N.J. 159,
181 (1967)). "Trial judges are vested with the authority to propound questions
to qualify a witness's testimony and to elicit material facts on their own initiative
and within their sound discretion." Id. at 131. "Claims of judicial misconduct
A-3889-22
30
pose a severe problem to our appellate tribunals for 'it is difficult to review a
charge of unfairness upon a dry record.'" Ibid. (quoting State v. Guido, 40 N.J.
191, 208 (1963)). A trial judge's intervention "is a 'desirable procedure,' but it
must be exercised with restraint." Ibid. (quoting Vill. of Ridgewood v. Sreel
Inv. Corp., 28 N.J. 121, 132 (1958)).
Even in a bench trial, "a trial judge must take special care to craft
questions in such a manner to avoid being perceived as an advocate for any side
of a dispute." L.M.F. v. J.A.F., Jr., 421 N.J. Super. 523, 537 (App. Div. 2011).
However, "isolated instances of judicial annoyance or impatience do not warrant
the drastic remedy of vitiating an otherwise valid" decision. Medina, 349 N.J.
Super. at 132. A "reviewing court should not evaluate the trial judge's conduct
from the vantage point of twenty-twenty hindsight. Rather, appellate courts
should recognize that trial judges often must act without the benefit of prolonged
and objective research." Ibid.
We do not find the ALJ's questions and admonitions to witnesses exceeded
his discretionary authority to manage the trial. The questions appear to have
been for the purpose of clarifying testimony and developing the record to assure
the ALJ had sufficient information to render a decision. The witnesses'
A-3889-22
31
interrogation facilitated the orderly presentation of competent evidence and did
not result in any unfair prejudice to Howard.
Lastly, any issue with the ALJ's failure to engage in a progressive
discipline analysis was addressed by the Commission, which independently
determined removal was the proper remedy. The Commission acknowledged
Howard's lack of a disciplinary history, but nevertheless noted, "[t]he infractions
. . . [Howard] committed [we]re egregious and pose[d] a serious safety and
security risk in a secured facility." It further commented, Howard's "submission
of false reports indicating work that was not actually performed is of great
concern. . . . [Howard] [wa]s a law enforcement officer, who [wa]s held to a
higher standard, where such serious misconduct cannot be tolerated." It then
noted it "agree[d] with the ALJ that . . . [Howard]'s conduct was egregious and
wholly inappropriate for a law enforcement officer and worthy of removal
without regard to progressive discipline." We conclude the Commission's
decision to terminate Howard was not arbitrary, capricious, or unreasonable
under the facts presented.
C.
We next turn to Howard's procedural arguments asserting the Commission
erred in interpreting N.J.S.A. 30:8-18.2 and N.J.S.A. 40A:14-201(2)(a). She
A-3889-22
32
reprises her arguments made before the Commission. Howard asserts that the
forty-five-day clock started on July 13, 2022, the day the ECPO notified the
Department that the criminal charges were dismissed, and thus, N.J.S.A. 30:8-
18.2 required she be served with the August 31, 2022 PNDA by August 26,
2022. Because the second PNDA was not served until September 10, 2022, she
argues it was untimely and should be dismissed.
Howard contends the language in N.J.S.A. 30:8-18.2 is meant to be read
as having two prongs. She asserts "[f]or the persons who do not have criminal
charges the application of the [forty-five]-day rule is based on the first [prong]
of the statute which references when there was sufficient information by the
investigator to know that there were violations of the internal rules and
regulations." Howard claims this "component of the statute does not apply" to
her case because criminal charges were involved. She argues the second prong
of N.J.S.A. 30:8-18.2, which "references having criminal charges" is applicable
here, and the Department failed to pursue charges within forty-five days of the
dismissal of the criminal charges. She asserts the Commission failed to consider
the legislative intent of N.J.S.A. 30:8-18.2 and that "strict application of the
second prong" of N.J.S.A. 30:8-18.2 requires this court to find July 13, 2022,
A-3889-22
33
the day IA was informed the criminal charges were dismissed, is the first day of
the forty-five-day clock.
N.J.S.A. 30:8-18.2 states in relevant part:
A person shall not be removed from employment . . . as
a county correctional . . . officer, or suspended . . . for
a violation of the internal rules and regulations . . . of
the county corrections department, unless a complaint
charging a violation of those rules and regulations is
filed no later than the [forty-fifth] day after the date on
which the person filing the complaint obtained
sufficient information to file the matter upon which the
complaint is based. A failure to comply with this
section shall require a dismissal of the complaint. The
[forty-five]-day time limit shall not apply if [the]
investigation . . . is included directly or indirectly
within a concurrent investigation of that officer for a
violation of the criminal laws of this State; the [forty-
five]-day limit shall begin on the day after the
disposition of the criminal investigation.
In Roberts, our Supreme Court analyzed the forty-five-day rule under
N.J.S.A. 53:1-33,3 which is similar to N.J.S.A. 30:8-18.2, except that it applies
3
N.J.S.A. 53:1-33 states:
A complaint charging a violation of the internal rules
and regulations established for the conduct of the State
Police shall be filed no later than the [forty-fifth] day
after the date on which the person filing the complaint
obtained sufficient information to file the matter upon
which the complaint is based. . . . The applicable time
limit shall not apply if an investigation of an officer or
A-3889-22
34
to the State Police. 191 N.J. at 520. There, the petitioner was criminally charged
with assault and harassment, and he failed to report the incident in accordance
with the rules and regulations governing State Troopers. Id. at 518. The State
Police began an internal disciplinary investigation, which revealed the petitioner
may have been engaging in fraud, and thus they referred the matter to the
Division of Criminal Justice for a criminal investigation and suspended their
internal investigation. Ibid. The Division of Criminal Justice notified the State
Police on December 22, 2003, there was insufficient evidence to bring the fraud
charges, and the State Police resumed its internal investigation, "which included
a January 26, 2004, interview of [the petitioner]." Id. at 519. Then, "[o]n
February 17, 2004, the report of the internal investigation was forwarded to the
. . . Superintendent of the State Police. Three days later, the Superintendent
authorized disciplinary charges . . . . That disciplinary notice was served on [the
petitioner] on March 1, 2004." Ibid. The petitioner claimed N.J.S.A. 53:1-33
imposed a forty-five-day limit "on the filing of any disciplinary charge, and that
trooper for a violation of the internal rules or
regulations of the law enforcement unit is included
directly or indirectly within a concurrent investigation
of that person for a violation of the criminal laws of this
State. The applicable time limit shall begin on the day
after the disposition of the criminal investigation.
A-3889-22
35
because the charge against him was filed more than forty-five days after the
disposition of his criminal investigation, it was barred." Ibid.
After addressing the legislative history of the statute, the Court
determined "it is not the happening of the event giving rise to discipline that
starts the clock for purposes of evaluating timeliness, but the receipt of
'sufficient information' by the one who is authorized to file the charge that is
significant." Id. at 524 (quoting N.J.S.A. 53:1-33). "[T]imeliness of a charge is
judged based upon when the [person filing the complaint] has received the report
of the investigation." Ibid. The Court found adopting the petitioner's
interpretation of the statute—that charges must be filed within forty-five days
of dismissal of the criminal charges—"would impose a time limit unrelated to
the statute's intent that there be a complete and thorough investigation." Id. at
525. It "decline[d] to interpret the statute to require the [person filing the
complaint] to conduct his investigation in an abbreviated manner simply to meet
a deadline over which he had no control." Ibid. The Court thus interpreted "the
reference to the 'applicable time frame' [in N.J.S.A. 53:1-33] to subsume the
earlier reference to the [person filing the complaint]'s receipt of sufficient
information on which to base a charge." Ibid.
A-3889-22
36
The Court agreed with us that "[i]t would be illogical for the Legislature
to have provided the necessary investigative period to determine whether
disciplinary charges should issue when no criminal conduct has been alleged,
but to have shortened that period when potential criminal conduct is under
investigation." Id. at 526 (alteration in original) (quoting Roberts, 386 N.J.
Super. at 552-53). Thus, the Court "interpret[ed N.J.S.A. 53:1-33] to mean that
once the criminal investigation has ended with a decision not to prosecute,
disciplinary charges must be filed 'no later than the [forty-fifth] day after the
date on which [the person filing the complaint] . . . obtained sufficient
information' to file those charges, . . . as measured by his receipt of the
investigative report." Ibid. (quoting N.J.S.A. 53:1-33).
We are satisfied the Commission properly relied on Roberts in interpreting
the analogous statute at issue here. The ECPO directed the Department to cease
its investigation in September 2018. The Department began its IA investigation
on July 13, 2022, after learning the criminal charges had been dismissed. The
ECCF IA completed its investigation on August 20, 2022, and sent it to the
Director two days later. The forty-five-day time period thus began on August
22, 2022—the day the Director received the IA report and obtained sufficient
information to file the complaint—and therefore, the second PNDA was timely
A-3889-22
37
filed on August 31, 2022. Accordingly, the forty-five-day rule under N.J.S.A.
30:8-18.2 was not violated, and the Commission did not act arbitrarily in
rejecting Howard's argument.
D.
Howard asserts the Commission erred in finding the 180-day rule under
N.J.S.A. 40A:14-201(a) did not apply. She was indefinitely suspended on
March 3, 2022. The 181st day after that is August 31, 2022. Thus, she asserts
she should have been returned to payroll on August 31, 2022. She argues the
"criminal charges were dismissed on July 12, 2022," which created "a reasonable
reliance" on N.J.S.A. 40A:14-201(a) that she could "expect[] that [she] would
be returned to payroll" on August 31, 2022.
N.J.S.A. 40A:14-201(a) states in relevant part:
When a law enforcement officer . . . is suspended from
performing [their] official duties without pay for a
complaint or charges, other than (1) a complaint or
charges relating to the subject matter of a pending
criminal investigation, inquiry, complaint, or charge
whether pre-indictment or post indictment, or (2) when
the complaint or charges allege conduct that also would
constitute a violation of the criminal laws of this State
. . . and the law enforcement agency employing the
officer . . . seeks to terminate that officer's . . .
employment for the conduct that was the basis for the
officer's . . . suspension without pay, a final
determination on the officer's . . . suspension and
A-3889-22
38
termination shall be rendered within 180 calendar days
from the date the officer . . . is suspended without pay.
If a final determination is not rendered within those 180
days . . . the officer . . . shall, commencing on the 181st
calendar day, begin again to receive the base salary
[they were] being paid at the time of [their] suspension
and shall continue to do so until a final determination
on the officer's . . . termination is rendered.
We conclude the Commission correctly interpreted the statute, which
renders the 180-day rule inapplicable where there are charges relating to a
criminal complaint. Howard ignores the language of N.J.S.A. 40A:14-201(a),
which provides it does not apply in the context of "a complaint . . . relating to
the subject matter of a pending criminal investigation, inquiry, complaint, or
charge whether pre-indictment or post indictment, or . . . when the complaint or
charges allege conduct that also would constitute a violation of the criminal laws
of this State." Here, the initial PNDA stemmed from charges related to a
criminal complaint. The Commission noted, "there was clearly a criminal
investigation and criminal charges. Accordingly, the 180-[day] rule is not
implicated in the instant case as to [Howard's] . . . suspension" in March 2022.
We discern no basis to disturb the Commission's determination.
A-3889-22
39
E.
Lastly, Howard asserts N.J.S.A. 40A:14-149.2 entitled her to be returned
to her position with back pay and benefits going back to the day she was first
suspended, March 3, 2022. She asserts the Commission's decision to grant her
back pay from July 12, 2022, the day the ECPO dismissed the criminal charges,
to August 31, 2022, when the second PNDA was issued, was a miscalculation.
N.J.S.A. 40A:14-149.2 states:
If a suspended police officer is found not guilty at trial,
the charges are dismissed or the prosecution is
terminated, said officer shall be reinstated to [their]
position and shall be entitled to recover all pay withheld
during the period of suspension subject to any
disciplinary proceedings or administrative action.
As the Commission noted, N.J.S.A. 40A:14-149.2 applies to police
officers, not corrections officers, and Howard has not provided any authority
suggesting it applies to corrections officers. Accordingly, its decision was not
arbitrary, capricious, or unreasonable.
To the extent we have not specifically addressed any remaining arguments
raised by Howard, we conclude they lack sufficient merit to warrant discussion
in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed in A-3889-22 and in A-2406-23.
A-3889-22
40