IN THE MATTER OF IDESHA HOWARD. IN THE MATTER OF IDESHA HOWARD, ESSEX COUNTY, DEPARTMENT OF CORRECTIONS.
DOCKET NO. A-3889-22 A-2406-23
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
Argued September 11, 2025 – Decided September 26, 2025
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION.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.
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
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
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
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
. . . . 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
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
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,
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,
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,
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
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
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
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
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
[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
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
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
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
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
The Commission also found Howard‘s reliance on
[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 ).]
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.
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,”
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
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
In No. A-3889-22, Howard argues the Commission acted arbitrarily in disregarding the requirements of
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)
On appeal, the judicial role in reviewing an administrative action is generally limited to three inquiries:
(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)).](1) whether the agency‘s action violates express or implied legislative policies, that is, did the agency follow the law;
“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.
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
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
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
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.
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
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
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.
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.
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
“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
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’
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
Howard contends the language in
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
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
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
D.
Howard asserts the Commission erred in finding the 180-day rule under
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
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
Lastly, Howard asserts
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,
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.
Affirmed in A-3889-22 and in A-2406-23.
I hereby certify that the foregoing is a true copy of the original on file in my office.
M.C. Hardly
Clerk of the Appellate Division
Notes
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 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.