PHH MORTGAGE CORPORATION VS. ERIC MOORE(F-001008-13, ESSEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-4150-14T4

IN THE MATTER OF DURAND GILYARD,

GARDEN STATE YOUTH CORRECTIONAL

FACILITY, DEPARTMENT OF CORRECTIONS.

___________________________________

Telephonically argued January 18, 2017 -

Decided March 10, 2017

Before Judges Lihotz, Hoffman and O'Connor.

On appeal from the Civil Service Commission,

Docket No. 2015-2515.

Patricia B. Quelch argued the cause for

appellant Durand Gilyard (Helmer, Conley &

Kasselman, P.A., attorneys; Ms. Quelch, of

counsel and on the brief).

Anthony DiLello, Deputy Attorney General,

argued the cause for respondent Department of

Corrections (Christopher S. Porrino, Attorney

General, attorney; Melissa H. Raksa, Assistant

Attorney General, of counsel; Mr. DiLello, on

the brief).

PER CURIAM

Appellant Durand Gilyard, a former corrections officer

assigned to the Garden State Youth Correctional Facility (Garden

State), appeals from the final decision issued by the Civil Service

Commission (Commission), upholding his termination from employment

based upon conduct unbecoming of a public employee and commission

of other prohibited acts. The Commission adopted the findings and

conclusions issued by an administrative law judge (ALJ) following

an evidentiary hearing. On appeal, appellant maintains the

Commission's determination was arbitrary and capricious because

his actions fell within his assigned duties and any procedural

lapses in performance did not warrant termination. We are not

persuaded and affirm.

The facts recited are found in the administrative hearing

record and are undisputed. Appellant worked as the housing officer

in Garden State's therapeutic community unit, which houses inmates

needing counseling for drug and alcohol addiction. Appellant

worked the second shift, from 2 p.m. to 10 p.m.

Shortly after 8:30 p.m. on November 6, 2013, he commenced

searching cells for contraband. Appellant directed his effort to

verifying the ownership of televisions and radios located in each

cell. He was concerned there were continuing problems with some

inmates extorting items from others. He testified: "So I go check

the back of the TVs and look for a name at first. If this name

doesn't match the inmate in the room, then I'll ask them for

paperwork." The first several inmates failed to produce the

documents verifying ownership of the electronics. As a result,

2 A-4150-14T4

appellant confiscated those televisions and every other television

and radio in the unit. Because his initial inspections could not

verify ownership, he assumed there was a systemic problem and

confiscated fifty televisions and fifteen radios. Appellant

placed the confiscated electronics in an adjacent housing unit's

storage closet because his unit's storage closets were full.

Although appellant made a list of items removed from each

cell, he did not "have time" to complete the paperwork required

by the Department of Corrections (DOC) regulations addressing

seizure of contraband. Appellant admitted he did not follow the

correctional facility's policy, stating:

So at that time to write that many forms at

that late at night, I knew it was going to

take me over the ten o'clock limit. There's

no way I could a [sic] write confiscation

sheets for 65 items. It would have took [sic]

me another hour or two to do that. I felt at

that time it wasn't an emergent situation only

because I didn't have any problem with the

inmates or they didn't give me a disturbance

[sic].

Appellant knew the requisite procedures set forth in the

confiscation regulations included the requirement to charge each

offending inmate with improperly possessing the television or

radio and to give each a receipt for the confiscated item. When

he asked inmates if they wanted paperwork, according to appellant,

the inmates said no. He admitted:

3 A-4150-14T4

The only reason why I didn't 'cause I had not

determined that every item, or whose item did

belong to who, who would rightfully theirs,

who's wasn't [sic]. I was kind of in the

middle of my investigation. And I didn't want

to write [c]onfiscation sheets or [c]harges

at that time without willingly knowing whose

items rightfully did belong to theirs [sic].

So I figured, as far as myself[,] a judgment

call[,] I'll wait till tomorrow. They're

secured in the closets. Get to the bottom of

it the next day.

Two officers working the next morning testified there was no

unusual behavior by the inmates as they moved from their cells to

the gym for counseling. However, Ira Crespi and his supervisor,

Jennifer Penninpede-Fiore, who facilitated substance and

behavioral counseling programs for Garden State, also testified.

Each testified as to events witnessed during the inmates' group

session, the morning after appellant's confiscations. Ninety-six

inmates were present for counseling with Crespi and another fifty-

two were in the same gym attending a different session. Crespi

explained it as "a day that I'd never experienced before," when

"the inmates were disorderly, agitated, irritated, angry." The

inmates ignored his customary instruction to sit down, and he

heard various inmates discussing the events of the previous night.

They were unsettled because their televisions and radios were

confiscated. Some inmates stated, "We're going to protest this."

4 A-4150-14T4

Crespi testified, "I really thought something bad might have

happened" because the inmates were "pretty upset, very upset and

I feared for my safety." Crespi contacted Penninpede-Fiore for

help. When she arrived, accompanied by Sergeant Craig James, who

requested assistance from Lieutenant Brian Hodgson, Penninpede-

Fiore observed "the inmates were not designated to their area.

They were all over. They were all standing. It was loud. It was

chaotic." Penninpede-Fiore and Sergeant James walked to the

different groups of inmates and asked them to sit down. She

believed they complied because of Sergeant James' presence.

When appellant returned to work on November 7, 2013, his

supervisor informed him an investigation of his actions was

underway. Sergeant James undertook this investigation of the

inmate's claims and found the fifty televisions and fifteen radios

in the adjacent unit's storage area. He returned forty-three

televisions and twelve radios, which were improperly seized from

inmates who rightfully owned them.

Lieutenant John Henderson, one of the second shift area

supervisors, testified appellant's actions constituted an unusual

event requiring his supervisor's approval. He confirmed the mass

confiscation was not authorized by appellant's supervisor, was not

recorded on an incident report as required, was not listed in the

5 A-4150-14T4

requisite log books, and was not mentioned to his supervisor or

officers resuming duty on the next shift.

On December 19, 2013, Garden State issued a Preliminary Notice

of Disciplinary Action to appellant. The notice listed these

events as warranting discipline:

On November 7, 2013[,] it was discovered that

on November 6, 2013[,] you confiscated

approximately fifty inmate televisions and

fifteen radios without notifying your area

supervisor, without completing the required

paperwork, and with no written account of your

actions. You then stored the confiscated

items in a storage closet on the adjoining

housing unit. This was done during the time

that a code 33 was in effect. This action

caused a disturbance during the TC counseling

program on November 7, 2013[, which] may have

caused injury to staff and destruction of

state property.

Appellant was suspended pending a Loudermill1 hearing for

conduct unbecoming a public employee, N.J.A.C. 4A:2-2.3(a)(6), and

other sufficient causes, N.J.A.C. 4A:2-2.3(a)(12), which included

noncompliance with N.J.A.C. 10A:3-6.1, regulations delineating

procedures for handling contraband.2 Further, the notice advised

1

Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 105 S.

Ct. 1487, 84 L. Ed. 2d 494 (1985) (holding due process requires a

pretermination hearing to address charges affecting certain civil

servants' property interests in employment).

2

The notice also identified specific violations of the DOC

Human Resources Bulletin 84-17 (Bulletin 84-17), including: a

serious mistake due to carelessness that may result in danger or

6 A-4150-14T4

Garden State sought to terminate appellant's employment. The

preliminary hearing was conducted, even though appellant was

absent. Garden State suspended appellant without pay and served

a Final Notice of Major Disciplinary Action to remove appellant

from his employment. Following that hearing, appellant's

employment was terminated.

Appellant appealed, and the matter was assigned to the Office

of Administrative Law for evidentiary review as a contested case.

Appellant and Garden State each presented witness testimony, along

with documentary evidence. Following a four-day hearing, the ALJ

issued a recommendation, concluding appellant committed all

charges, and upheld his termination. The Commission adopted the

ALJ's findings and accepted his conclusions as its final decision.

This appeal followed.

A "strong presumption of reasonableness attaches to the

actions of administrative agencies." In re Carroll, 339 N.J.

Super. 429, 437 (App. Div.) (citation omitted), certif. denied,

170 N.J. 85 (2001). Although we undertake an independent review,

[o]ur role in reviewing a final administrative

agency decision is limited. In re Taylor, 158

N.J. 644, 656 (1999). We must defer to a

injury to persons or property (§ B.8); conduct unbecoming an

employee (§ C.11); violation of administrative procedures or

regulations involving safety and security (§ D.7); and violation

of a rule, regulation, policy, procedure, or administrative

decision (§ E.1).

7 A-4150-14T4

final agency decision unless it is arbitrary,

capricious, unsupported by substantial

credible evidence in the record, or in

violation of the express or implicit

legislative policy. Id. at 656-57. We must

determine whether an agency's findings could

have been "'reached on sufficient credible

evidence present in the record' considering

'the proofs as a whole,' with due regard to

the opportunity of the one who heard the

witnesses to judge of their credibility." Id.

at 656 (quoting Close v. Kordulak Bros., 44

N.J. 589, 599 (1965)). If we find sufficient

credible evidence in the record to support the

agency's conclusions, then we must affirm even

if we would have reached a different result.

Clowes v. Terminix Int'l, Inc., 109 N.J. 575,

588 (1988).

[In re Frazier, 435 N.J. Super. 1, 6 (App.

Div. 2014).]

A party challenging the administrative action bears the

burden to establish 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, 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). If the

record meets this standard, this court will set aside an agency

decision, which is clearly mistaken or erroneous. L.M. v. Div.

of Med. Assistance & Health Servs., 140 N.J. 480, 490 (1995).

8 A-4150-14T4

However, an agency's interpretation of a statute or any legal

determination is not accorded the same deference. Legal issues

are reviewed de novo.

Appellant challenged the factual findings adopted by the

Commission, arguing the proofs did not support the conclusion his

conduct constituted the acts charged. Admitting he seized the

inmates' electronics, he nevertheless refutes any notion his

actions were deliberate or inappropriate or his decision regarding

the seized items' storage left them open to theft. Finally, he

challenges Crespi's comments as an overreaction and argues the

resultant disquiet of the inmates during their morning counseling

was not akin to a riot.

Public employee rights and duties are governed by the Civil

Service Act, N.J.S.A. 11A:1-1 to -12.6. A public employee

protected by the provisions of that Act may be subject to major

discipline for a wide variety of offenses connected to his or her

employment and the general causes for such discipline are set

forth in N.J.A.C. 4A:2-2.3(a), which provides, in pertinent part:

(a) An employee may be subject to

discipline for:

. . . .

6. Conduct unbecoming a public employee;

. . . .

9 A-4150-14T4

12. Other sufficient cause.

"Conduct unbecoming a public employee," N.J.A.C. 4A:2-

2.3(a)(6), is an "elastic" phrase encompassing "any conduct which

adversely affects . . . morale or efficiency [or] which has a

tendency to destroy public respect for [public] employees and

confidence in the operation of [public] services." Karins v. City

of Atl. City, 152 N.J. 532, 554 (1998) (citations omitted).

Conduct that "has the tendency to destroy public respect for

[public] employees and public confidence in the operation of" the

public entity is intolerable. Id. at 557.

Appellant's status as a corrections officer subjects him to

a higher standard of conduct than ordinary public employees. In

re Phillips, 117 N.J. 567, 576-77 (1990). This results because

corrections officers represent "law and order to the citizenry and

must 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).

Appellant has also been charged with violating N.J.A.C. 4A:2-

2.3(a)(12), "Other sufficient cause." Although general, this

provision applies to conduct that violates the implicit standard

of good behavior that devolves upon one who stands in the public

eye as an upholder of that which is morally and legally correct.

10 A-4150-14T4

As noted above, Garden State cited four provisions of Bulletin 84-

17 as constituting the basis for this charge.

DOC regulations govern the procedure followed when a

corrections officer seizes contraband. These include: the officer

must give the inmate a receipt for the seized item, N.J.A.C. 10A:3-

6.1(a)(3); before the officer's shift ends, the officer must give

the contraband to his supervising officer along with a record of

its chain of possession, N.J.A.C. 10A:3-6.1(a)(1) to (2); and the

supervising officer must store the contraband with the Special

Investigations Division or the correctional facility's Central

Control, N.J.A.C. 10A:3-6.1(c).

The record supports appellant's failure to comply with the

designated process. We reject, as specious, his claim taking the

televisions and radios was "a valid exercise of discretion" and

not a seizure of contraband. R. 2:11-3(e)(1)(E).

Appellant suggests his investigation was not completed

because his shift ended, he had not cited any inmate, and fully

intended to inform his supervisor when he concluded his review.

Further, he did not believe it necessary to make any record in the

log books prior to completing the investigation. Ironically,

appellant asserts an inmate's possession of electronics is

permitted but "protocol must be followed," while suggesting his

decisions were acceptable practice even if "his actions may not

11 A-4150-14T4

have comported with the official procedures or protocols . . . ."

Appellant also justifies his actions, noting no disruption

occurred that evening. We reject each of his suggestions.

The facts adopted by the Commission were as follows:

[A]ppellant's action was a serious mistake as

the improper confiscation of so many items

created a hostile environment[,] which led to

a mass inmate protest. . . . [T]hat

appellant's conduct was unbecoming to a public

employee since that conduct amounted to

inappropriately taking personal property from

the inmates and putting that property in and

unsecured location subject to theft. . . .

[A]ppellant violated the facility procedures

and in doing so created a situation where

safety of inmates, corrections personnel and

civilians was put at risk because of the mass

confiscation of electronics initiated by

. . . appellant created a hostile environment

and large inmate unrest.

Appellant's actions of appropriating all televisions and

radios of every inmate in his unit, without determining if they

were contraband, is neither authorized nor permitted. Strict

compliance with the process and procedures created to address this

issue is required to protect the safety and security of the

institution, as well as to protect inmates' property rights.

Importantly, appellant did not advise supervisors or other shift

officers of his actions, denying them the opportunity to prepare

for resultant unrest.

12 A-4150-14T4

Appellant's challenge to the factual findings because the

record contains no proof the taken electronics were unsecured begs

the question. The inmate property was taken and placed outside

the unit, without compliance with policies or procedures required

by the facility. We also reject appellant's reliance on testimony

offered by other corrections officers, which minimized the event

and appellant's actions. As Lieutenant Henderson explained, the

therapeutic counseling unit inmates are more volatile than those

in other units because of the circumstances they face. Further,

the agitated and angry group counseling session could have

escalated into a riot had the morning personnel not acted as

"phenomenally" as they had.

Maintenance of strict discipline is important in military-

like settings such as prisons and correctional facilities. Rivell

v. Civil Serv. Comm'n, 115 N.J. Super. 64, 72 (App. Div.), certif.

denied, 59 N.J. 269 (1971). Thus, strict adherence to procedures

developed and published by the DOC is necessary to maintain

control. This court has underscored:

The need for proper control over the conduct

of inmates in a correctional facility and the

part played by proper relationships between

those who are required to maintain order and

enforce discipline and the inmates cannot be

doubted. We can take judicial notice that

such facilities, if not properly operated,

have a capacity to become "tinderboxes."

13 A-4150-14T4

[Bowden v. Bayside State Prison, 268 N.J.

Super. 301, 305-06 (App. Div. 1993), certif.

denied, 135 N.J. 469 (1994).]

We conclude appellant's factual challenges lack merit. R.

2:3-11(e)(1)(E). His actions were not justified or acceptable,

but rather adversely affected the morale and efficiency of the

correctional facility and had the "tendency to destroy public

respect for [public] employees and public confidence in the

operation of" the correctional facility. Karins, supra, 152 N.J.

at 557. The Commission's findings that appellant's conduct

violated N.J.A.C. 4A:2-2.3 (a)(6) and (12), along with the policies

adopted in Bulletin 87-17, are amply supported by the record

evidence.

Next, appellant argues the Commission erred because his

termination was not warranted by the disciplinary infractions. We

disagree.

"A reviewing court 'may not substitute its own judgment for

the agency's, even though the court might have reached a different

result.'" In re Stallworth, 208 N.J. 182, 194 (2011) (quoting In

re Carter, 191 N.J. 474, 483 (2007) (citations omitted)). This

court has no authority to act independently, particularly

regarding an issue directed to the agency's special "expertise and

superior knowledge of a particular field." In re Herrmann, 192

N.J. 19, 28 (2007). This deferential standard applies to our

14 A-4150-14T4

review of a challenge to an issued disciplinary sanction. Ibid.

"Accordingly, when reviewing administrative sanctions, appellate

courts should consider whether the 'punishment is so

disproportionate to the offense, in the light of all of the

circumstances, as to be shocking to one's sense of fairness.'"

Stallworth, supra, 208 N.J. at 195 (quoting Carter, supra, 191

N.J. at 484).

Appellant's argument suggests he was "just doing his job,"

and the infraction he committed was merely not completing

paperwork. He also points to the limited disciplinary sanction

issued to his co-employee who assisted him in the confiscation and

storage of the electronics. These contentions completely ignore

the facts.

No emergency resulted because some inmates possibly possessed

a television or radio that was not documented as his own. While

such an instance required the inmate to be cited for possession

of contraband, no danger was posed by allowing possession to

continue, pending appellant's strict compliance with requisite

procedures. In contrast, the mass seizure of all electronics

without regard to rightful proof of possession, on the hunch some

of the items may qualify as contraband, is neither warranted nor

sanctioned. The resultant unrest and protest, when inmates

gathered and discussed appellant's misguided attempt to enforce

15 A-4150-14T4

television and radio protocol, posed a significant security and

safety risk, which could have been catastrophic.

Appellant's argument that the sanction of termination

deviated from the expectations of progressive discipline is also

rejected. A single egregious act may justify termination. See

Stallworth, supra, 208 N.J. at 196. "[P]rogressive discipline has

been bypassed when an employee engages in severe misconduct,

especially when the employee's position involves public safety and

the misconduct causes risk of harm to persons or property." In

re Herrmann, supra, 192 N.J. at 33.

In its review, the Commission's adopted factual findings

noted appellant's prior record, which included a 2009 disciplinary

sanction and 120-day suspension when he failed to secure cell

doors, allowing one inmate to enter another's cell and commit an

assault. However, that offense was not weighed in meting

appellant's sanction because the present offenses were determined

sufficiently egregious to warrant termination. The Commission

reviewed the current infractions, considered appellant's work

record, and chose not to modify the recommended penalty of

termination.

This court exercises a limited role in reviewing Commission

sanction decisions. Stallworth, supra, 208 N.J. at 194. This

court may reverse the agency's decision only if it was "arbitrary,

16 A-4150-14T4

capricious, or unreasonable, or . . . not supported by substantial

credible evidence in the record as a whole." Ibid. (quoting Henry

v. Rahway State Prison, 81 N.J. 571, 579-80 (1980)). In

particular, this court may not substitute its judgment for that

of the Commission in determining whether a particular sanction is

warranted. Id. at 194-95. This court may intervene only if the

punishment "is so disproportionate to the offense, in the light

of all of the circumstances, as to be shocking to one's sense of

fairness." Id. at 195 (quoting In re Carter, supra, 191 N.J. at

484). We conclude it does not.

In light of this authority, the sanction is neither illegal

nor unreasonable. We discern no basis to interfere with the

propriety of the issued sanction.

Affirmed.

17 A-4150-14T4