Opinion
DOCKET NO. A-3631-10T2
03-01-2012
IN THE MATTER OF ROBERT CUSICK, MIDDLESEX COUNTY DEPARTMENT OF ADULT CORRECTIONS.
Robert W. Gluck argued the cause for appellant Robert Cusick (Mandelbaum, Salsburg, Lazris & Discenza, attorneys; Mr Gluck, on the brief). Kenneth J. Lebrato, Deputy County Counsel, argued the cause for respondent Middlesex County Department of Adult Corrections (Thomas F. Kelso, Middlesex County Counsel, attorney; Mr. Lebrato, on the brief). Jeffrey S. Chiesa, Attorney General, attorney for respondent Civil Service Commission (Pamela N. Ullman, Deputy Attorney General, on the statement in lieu of brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Simonelli and Hayden.
On appeal from the Civil Service Commission, Docket No. 2010-3552.
Robert W. Gluck argued the cause for appellant Robert Cusick (Mandelbaum, Salsburg, Lazris & Discenza, attorneys; Mr Gluck, on the brief).
Kenneth J. Lebrato, Deputy County Counsel, argued the cause for respondent Middlesex County Department of Adult Corrections (Thomas F. Kelso, Middlesex County Counsel, attorney; Mr. Lebrato, on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondent Civil Service Commission (Pamela N. Ullman, Deputy Attorney General, on the statement in lieu of brief). PER CURIAM
Robert Cusick, an employee of the Middlesex County Adult Corrections Center, appeals from the final decision of the Civil Service Commission (Commission), which upheld charges of conduct unbecoming a public employee and a penalty of a forty-five day suspension and one-step demotion to Corrections Sergeant. On March 11, 2011, the Commission adopted the November 3, 2010 initial decision of the Administrative Law Judge (ALJ). For the reasons that follow, we affirm.
We derive the following facts from the record. Cusick has been employed by Middlesex County as a correction officer since 1987 and became a lieutenant in 2003. He had an unblemished record until the charges at issue here. The Corrections Center usually housed approximately nine hundred inmates and employed fifty-seven corrections officers per shift and one hundred civilian employees. According to Warden Edmund Cicchi, the "life blood of the institution" was the master control room, a secure, enclosed space containing weapons, radios, computers, and video monitors displaying views of different areas of the entire facility in order to observe movement throughout the complex. All ingress and egress and all internal and external communication of the Corrections Center was managed through the master control room. Generally, on each shift, a lieutenant was in charge of the master control room and directed the work of two civilian dispatchers.
On the morning of March 2, 2010, when Cusick was the supervising officer in the master control room, Corrections Lieutenant Dufifie, the shift commander, approached the window at the entrance door to deliver a letter. Dufifie observed Cusick reclining in a chair with his feet up on the desk, his arms crossed on his chest, his head facing the window, and his eyes closed. When a dispatcher in the room called Cusick's name, he jumped to his feet as if "startled." During subsequent interviews, both dispatchers reported that they had seen Cusick sleeping that morning and on more than one occasion in the past.
Dufifie immediately reported the incident to his superior officers and that afternoon the County brought preliminary charges against Cusick of conduct unbecoming a public employee, incompetency, inefficiency, and failure to perform duties. While the initial notice of disciplinary charges recommended termination, the final notice of disciplinary charges recommended a forty-five day suspension and a two-step demotion from lieutenant to correction officer.
Cusick appealed the disciplinary action to the Office of Administrative Law (OAL). At the August 10, 2010 hearing, Dufifie and the two dispatchers testified that on the morning of March 2, 2010, they had observed Cusick sleeping while he was in charge of the master control room. Warden Cicchi testified that, due to the critical nature of the master control room, a supervisor sleeping on the job while working there created an unacceptable security risk for the entire prison. As a result, Warden Cicchi had initially thought the gravity of the incident warranted termination, but after taking Cusick's excellent record into consideration, he determined a lesser penalty was appropriate.
In his testimony, Cusick denied that he had been sleeping, although he acknowledged that his eyes could have been closed and his feet up on the desk. He also testified that in the past other employees had been found sleeping but had not been demoted. He suggested that the excessive penalty for merely closing his eyes on the job was because a few years before he had testified on behalf of an officer being disciplined by the County.
In her decision, the ALJ, finding the County's witnesses more credible than Cusick, determined that Cusick had been sleeping on the job, and that such behavior constituted conduct unbecoming a public employee. However, she determined that, because Cusick had an unblemished record for twenty-three years, the penalty should be reduced to a forty-five day suspension and a one-step demotion to Corrections Sergeant. The Commission adopted the ALJ's decision on March 18, 2011. This appeal followed.
On appeal, Cusick contends that the agency's decision is arbitrary and capricious. He argues that the record before the ALJ does not support the finding that he was sleeping, merely that he had his eyes closed for about fifteen seconds. Additionally, he maintains that the penalty is unduly harsh and disproportionate to the offense in light of his unblemished record of twenty-three years.
It is well settled that our scope of appellate review of administrative decisions is limited. In re Stallworth, 2 08 N.J. 182, 194 (2011). "An administrative agency's final quasi-judicial decision 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." In re Herrmann, 192 N.J. 19, 27-28 (2007). We will defer to "the agency's expertise and superior knowledge of a particular field." Id. at 28. We may not substitute our own judgment for that of the agency, "even though the court might have reached a different result." In re Carter, 191 N.J. 474, 483 (2007); Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992). "Courts can intervene only in those rare circumstances in which an agency action is clearly inconsistent with its statutory mission or with other State policy." George Harms Constr. Co. v. N.J. Tpk. Auth., 137 N.J. 8, 27 (1994).
Our review of disciplinary sanctions is also governed by this deferential standard. In re Stallworth, supra, 208 N.J. at 195. The question for this court is "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." In re Carter, supra, 191 N.J. at 484 (internal citations and quotation marks omitted).
Applying this standard of review here, we affirm the Commission's final decision. The ALJ's factual findings, which the Commission adopted, were fully supported by substantial credible evidence at the hearing. Moreover, public safety concerns are a legitimate issue to consider in addressing the propriety of sanctions against police and correction officers. In re Carter, supra, 191 N.J. at 485. Hence, the sanction, which took into consideration the gravity of the conduct as well as Cusick's excellent record, does not shock the conscience. In sum, the Commission's decision has not been shown to be arbitrary, capricious or contrary to the applicable law. Consequently, we have no basis to set it aside.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELATE DIVISION