IN THE MATTER OF DANIEL PURDY, CAMDEN COUNTY CORRECTIONAL FACILITY (NEW JERSEY CIVIL SERVICE COMMISSION) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE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-5006-17T3
IN THE MATTER OF DANIEL
PURDY, CAMDEN COUNTY
CORRECTIONAL FACILITY
__________________________
Submitted May 28, 2020 – Decided June 12, 2020
Before Judges Fuentes, Haas and Enright.
On appeal from the New Jersey Civil Service
Commission, Docket No. 2015-2646.
Alterman & Associates LLC, attorneys for appellant
Daniel Purdy (Stuart J. Alterman, of counsel; Arthur J.
Murray, on the brief).
Christopher A. Orlando, Camden County Counsel,
attorney for respondent Camden County Department of
Corrections (Howard Goldberg, First Assistant County
Counsel, on the brief).
Gurbir S. Grewal, Attorney General, attorney for
respondent New Jersey Civil Service Commission
(George Norman Cohen, on the statement in lieu of
brief).
PER CURIAM
Appellant Daniel Purdy appeals from the May 25, 2018 final
administrative decision of the Civil Service Commission (Commission) that
upheld action taken by Purdy's employer, the Camden County Correctional
Facility (CCCF), to terminate Purdy's employment as a county correction officer
based on charges that he engaged in conduct unbecoming a public employee;
insubordination; inability to perform duties; neglect of duty; discrimination that
affects equal employment; and other sufficient causes, including violations of
the CCCF Rules of Conduct. We affirm.
The procedural history and facts of this case are fully set forth in the April
6, 2018 Initial Decision rendered by the Administrative Law Judge (ALJ)
following a four-day hearing. The Commission adopted these findings in its
final decision and, therefore, we need only briefly summarize them here.
The CCCF's rules prohibit correction officers like Purdy from possessing
or using personal cell phones in the secure areas of the facility. Purdy was aware
of these prohibitions.
While investigating possible misconduct by other correction officers in
December 2014, the CCCF's Internal Affairs Unit discovered that one of the
officers was in possession of two cell phones. The officer consented to a search
of the phones, which revealed that between September 30, 2014 and December
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28, 2014, Purdy and other officers smuggled personal cell phones into the secure
areas of the facility, and exchanged approximately 5800 text messages during
two separate group text chains. Some of these messages contained photographs
of inmates and computer screens displaying confidential information.
The ALJ examined all of the messages sent by Purdy and the other officers
and found that the message chains contained "multiple derogatory,
inappropriate[,] and racist text messages" referring to inmates, co-workers, and
supervisors. Purdy was responsible for writing and sending 461 of the texts, and
the ALJ found that the following ten texts were representative of the extremely
inappropriate nature of his communications:
- "Happy Born day nigga"
- "That one smooth ape over-paid nigga" (referring
to . . . the Warden's assistant)
- [Purdy] posted a picture of a white male wearing
a red shirt with an American flag stating "I like
shooting cans, Mexican, Africans, um Puerto
Ricans"
- "How many years that crazy nig got"
- "sleepy nigga" (referring to [the Warden])
- "Nah, that spook at home making stuffed shells"
- [Purdy] posted a picture providing information
regarding "White European Pride" with a link to
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an organization called "The Advanced White
Society"
- [Purdy] posted that he wanted to "curb stomp"
one of his supervising officers
- [Purdy] called . . . [the] Warden . . . who is
Hispanic, "Dora the Explorer"
- [Purdy] made a comment about a female co-
worker "They calling her a dusty coon . . . um
. . . negress something about her hair . . . it was
like a jailhouse mop"
Purdy did not dispute that he authored or received the messages found on
the text chains, although he stated that only 39 of the 461 messages he wrote
were sent while on duty. He also acknowledged he should be disciplined, but
argued that removal from employment was too severe a penalty. Purdy also
claimed he had a First Amendment right to make the comments he did.
In a thorough initial decision, the ALJ rejected Purdy's arguments,
sustained all of the charges against him, and recommended that Purdy be
removed from employment. As for Purdy's First Amendment claim, the ALJ
first found that regardless of the racist content of the text messages, Purdy still
brought an unauthorized cell phone into the secure areas of the CCCF, was aware
that the messages he exchanged and received contained photographs of inmates
and confidential computer screens, and failed to report this misconduct, in
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violation of the facility's rules. The ALJ concluded that Purdy's actions in this
regard clearly warranted his removal from employment.
Relying on Karins v. Atlantic City, 152 N.J. 532 (1998), the ALJ further
found that Purdy's "speech cannot be characterized as constituting speech on a
matter of public concern and that the State's interest in promoting the efficiency
of the public service it performs through its employees [outweighed Purdy's]
interest in making these racist and derogatory comments." Therefore, the ALJ
found that Purdy's attempted First Amendment "defense" lacked merit.
The ALJ concluded that Purdy's conduct was so egregious that progressive
discipline did not need to be considered, and that his removal from employment
was warranted. The ALJ explained:
The public who is served, and other employees, deserve
to be able to expect that those individuals that exercise
control over and interact with them will not make them
targets of inappropriate, derogatory, and racist chats.
To expect otherwise is to invite disorder and confusion
in responding to certain functions within the jail,
possibly leading to worse, more dangerous situations,
and serves to undermine the confidence the public
places in the correctional system. It cannot be
tolerated.
This appeal followed.
On appeal, Purdy again argues that he had a First Amendment right to
send racist text messages on an unauthorized cell phone he improperly brought
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into the secure areas of a correctional institution. He also asserts he should not
have been found guilty of the discrimination that affects equal employment
charge because no one had brought a claim against him under the Law Against
Discrimination (LAD), N.J.S.A. 10:5-1 to -49. Finally, Purdy contends that the
evidence does not support the Commission's decision to remove him from
employment. We disagree.
Established precedents guide our task on appeal. Our scope of review of
an administrative agency's final determination is limited. In re Herrmann, 192
N.J. 19, 27 (2007). "[A] 'strong presumption of reasonableness attaches'" to the
agency's decision. In re Carroll, 339 N.J. Super. 429, 437 (App. Div. 2001)
(quoting In re Vey, 272 N.J. Super. 199, 205 (App. Div. 1993)). Additionally,
we give "due regard to the opportunity of the one who heard the witnesses to
judge . . . their credibility." In re Taylor, 158 N.J. 644, 656 (1999) (quoting
Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)).
The burden is upon the appellant to demonstrate grounds for reversal.
McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 563 (App. Div. 2002);
see also Bowden v. Bayside State Prison, 268 N.J. Super. 301, 304 (App. Div.
1993) (holding that "[t]he burden of showing the agency's action was arbitrary,
unreasonable[,] or capricious rests upon the appellant"). To that end, we will
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"not disturb an administrative agency's determinations or findings unless there
is a clear showing that (1) the agency did not follow the law; (2) the decision
was arbitrary, capricious, or unreasonable; or (3) the decision was not supported
by substantial evidence." In re Application of Virtua-West Jersey Hosp.
Voorhees for a Certificate of Need, 194 N.J. 413, 422 (2008).
When an agency decision satisfies such criteria, we accord substantial
deference to the agency's fact-finding and legal conclusions, acknowledging
"the agency's 'expertise and superior knowledge of a particular field.'" Circus
Liquors, Inc. v. Governing Body of Middletown Twp., 199 N.J. 1, 10 (2009)
(quoting Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992)).
We will not substitute our judgment for the agency's even though we might have
reached a different conclusion. In re Stallworth, 208 N.J. 182, 194 (2011); see
also Taylor, 158 N.J. at 656-57 (discussing the narrow appellate standard of
review for administrative matters).
Our deference to agency decisions "applies to the review of disciplinary
sanctions as well." Herrmann, 192 N.J. at 28. "In light of the deference owed
to such determinations, when reviewing administrative sanctions, 'the test . . . 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.'" Id. at 28-29
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(alteration in original) (quoting In re Polk, 90 N.J. 550, 578 (1982)). "The
threshold of 'shocking' the court's sense of fairness is a difficult one, not met
whenever the court would have reached a different result." Id. at 29.
Applying these principles here, we discern no basis for disturbing the
Commission's decision to remove Purdy from employment. The Commission's
decision is supported by substantial credible evidence in the record. Purdy
violated the CCCF's rules by bringing a personal cell phone into the secure areas
of the facility, where he used it to exchange racist text messages, photographs
of inmates, and confidential information obtained from computers. As our
Supreme Court held over twenty years ago, conduct of this nature is simply not
protected by the First Amendment. Karins, 152 N.J. at 563.
The Commission also properly adopted the ALJ's conclusion that Purdy
violated N.J.A.C. 4A:2-2.3(a)(9), which states that a public employee may be
"subject to discipline for . . . [d]iscrimination that affects equal employment
opportunity[.]" Contrary to Purdy's unsupported contention, evidence of a
cognizable claim against a public employee for a violation of the LAD is not
required to support a finding of guilt under the regulation. See Karins, 152 N.J.
at 561-62 (stating that "[i]n a disciplinary case such as this one, it is not
necessary 'for an employer to allow events to unfold to the extent that the
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disruption of the office and the destruction of working relationships is manifest
before taking action'") (quoting Connick v. Myers, 461 U.S. 138, 152 (1983)).
Finally, the Commission's decision to impose the penalty of removal is
certainly not "so disproportionate to the offense, in light of all the circumstances,
as to be shocking to one's sense of fairness." Hermann, 192 N.J. at 28-29. We
therefore affirm substantially for the reasons expressed by the Commission,
which incorporated the detailed findings of fact and conclusions of law rendered
by the ALJ in his well-reasoned written opinion.
Affirmed.
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