NOT FOR PUBLICATION

PER CURIAM.

Appellant Dominic Gliottone appeals from a final decision of the New Jersey Civil Service Commission (Commission), upholding his removal as a correction officer and denying his motion to enforce a purported settlement agreement. Based on our review of the record and applicable law and for the reasons that follow, we affirm.

I.

Gliottone began working as a correction officer at the Mercer County Corrections Center (MCCC) on July 3, 2006. Vanessa Falcone, a State parolee, was sent to MCCC on February 19, 2009, for violating her parole. Gliottone and Falcone had known each other for six or seven years and dated briefly but had not seen each other for approximately three years prior to Falcone's arrival at MCCC.

In early April 2009, Falcone saw Gliottone while she was working in the MCCC dining room. Prior to this encounter, Gliottone did not know that Falcone was an inmate at MCCC and Falcone was not aware that Gliottone worked at MCCC. They greeted each other but had no further contact while Falcone was at MCCC. Gliottone did not report this encounter to anyone in MCCC, nor did he disclose to anyone that he had a previous relationship with Falcone.

Falcone remained at MCCC until April 14, 2009, when she was transferred to Albert M. "Bo" Robinson Assessment & Treatment Center (Bo Robinson), an in-patient drug treatment facility. After her arrival at Bo Robinson, Falcone wrote letters to Gliottone seeking his help. In one of the letters she asked for his phone number which he provided by return mail.

While Falcone was at Bo Robinson, she and Gliottone exchanged approximately 115 to 120 telephone calls. During this time, Falcone asked Gliottone for help in finding a place to live upon her release. Gliottone agreed to help and on July 25, 2009, leased an apartment in his name for Falcone's use.

Gliottone also visited Falcone at Bo Robinson. As only family members were permitted to visit, Falcone listed Gliottone alternatively as her "cousin" and her "fiancé."

In July 2009, Falcone was transferred to Kintock, a residential community release program in Newark. Gliottone continued to visit Falcone there until her release in August 2009. When Falcone was having difficulty contacting her parole officer, she called Gliottone and asked him to intercede. Gliottone agreed, and on August 11, 2009, he called senior parole officer Tania Larkin to confirm Falcone's release date. On August 19, 2009, Gliottone met with a different parole officer to show him the apartment he had leased for Falcone.

On August 25, 2009, Gliottone was removed from his position as a correction officer and charged with conduct unbecoming a public employee, N.J.A.C. 4A:2-2.3(a)6; violating Mercer County Correction Center Standards and Operating Procedure (SOP) 005 (Familiarity with Inmates, Ex-inmates, and Family); SOP 004 (Employee Handbook Section 1.03 Internal Institutional Relationships); and violating a rule, regulation, policy, order or administrative decision. Gliottone waived a departmental hearing and appealed his removal directly to the Office of Administrative Law (OAL).

The Administrative Law Judge (ALJ) conducted a hearing on June 2 and 3, 2010. On June 9, 2010, Stephanie D'Amico, an attorney representing Mercer County, sent an e-mail to Gliottone's counsel indicating a willingness to discuss settlement of the charges against Gliottone. On July 16, 2010, D'Amico proposed a six-month suspension:

In response, Gliottone's attorney asked if the suspension could be reduced to three months. D'Amico replied:

Gliottone's attorney then sent the following e-mail to D'Amico:

On July 19, 2010, the Mercer County Administrator, Andrew Mair, presented the proposed settlement to the Warden and Chief of Staff, who rejected it. Mair immediately informed D'Amico that the County would not consent to the proposed settlement. On July 20, 2010, D'Amico wrote to Gliottone's counsel and explained the County's position:

Gliottone moved to enforce the agreement. The County opposed the motion, arguing that the agreement was unenforceable because D'Amico lacked authority to enter into the agreement on behalf of the County. Mair submitted a certification indicating that, while he initially agreed to resolving the matter with a six-month penalty, he was under the impression that, before any agreement became final and binding on the County, a settlement agreement would be drafted, and he would have the opportunity to discuss it with the Warden. Mair indicated that he typically obtains the consent of the Warden before finalizing a settlement of this nature.

On September 21, 2010, the ALJ issued a comprehensive decision finding Gliottone's failure to report his previous relationship with Falcone when he first saw her in the Officer's Dining Room violated SOP 005, Section B.1; his personal contact with Falcone, an ex-inmate, while she was on parole violated SOP 005, Section B.6; and his visits to Falcone at Bo Robinson and Kintock violated SOP 005, Section B.9. The ALJ found Gliottone's conduct was a "clear violation" of these policies, and his "failure to comply with these specified policies . . . must [] be considered unbecoming conduct[.]" The ALJ dismissed all other charges.

In determining that removal was the appropriate penalty, the ALJ noted that "[t]he public employee's obligation to act in a responsible manner is especially compelling for a law enforcement official," and "[m]aintenance of strict discipline is important in police departments, prisons and correctional facilities."

The ALJ characterized Gliottone's violations as "extremely serious" because "such undue familiarity between an officer and an inmate can be used for any number of nefarious purposes, including the planning of escape." He noted that "as an ex-inmate under parole," Falcone's contacts with Gliottone "could have placed [Gliottone] at risk because it could provide leverage to the inmates and make him vulnerable to their demands[.]" Despite recognizing that Gliottone's personal contacts with Falcone "[do] not appear to have placed anyone. . . in jeopardy[,]" and despite finding that it "is clear that [Gliottone's] actions were those of a good Samaritan attempting to help an old friend[,]" the ALJ found:

In a separate decision, the ALJ denied Gliottone's motion to enforce the "alleged oral settlement." Relying on Mair's certification, the ALJ found that D'Amico did not have actual authority to enter into the agreement. The ALJ also found that D'Amico did not have apparent authority, as her e-mail alone was insufficient to "engender a reasonable belief that [she] possess[ed] authority to conclude a settlement." The ALJ further found that the absence of "essential terms" from the settlement agreement also rendered it unenforceable and, based on D'Amico's e-mail, there was an implicit understanding between the parties that Gliottone would be required to pass a physical and drug test before returning to work.

Because the parties failed to agree on what would happen if Gliottone were to fail either or both of these tests, and did not include in the agreement how Gliottone's absence would be treated, the ALJ stated that the Commission views the agreement as "a less-than[-]complete settlement." The ALJ found that it was critical that any settlement address how Gliottone's absence would be treated. At the time of the settlement negotiations, Gliottone had already been removed from his position for eleven months and the suspension would account for only six of those months. The ALJ noted that unless a settlement agreement "explain[s] how to treat every single day that an employee is out of work," the Commission will regard the agreement as incomplete and remand the case.

The Commission adopted the recommendation of the ALJ and concluded that removal was an appropriate penalty under the circumstances.1 The Commission also agreed with the ALJ that the settlement agreement was unenforceable because it lacked the "essential terms" that the ALJ identified. This appeal followed.

II.

We first acknowledge the well-recognized principles governing our limited scope of review of an agency determination. Prado v. State, 186 N.J. 413, 427 (2006); Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963). The final decision of an administrative body such as the Commission should not be disturbed on appeal unless it is "arbitrary, capricious or unreasonable." Karins v. City of Atlantic City, 152 N.J. 532, 540 (1998). In making this determination we must examine:

We "may not substitute [our] own judgment for the agency's even though [we] might have reached a different result[.]" Carter, supra, 191 N.J. at 483 (citing Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992)). "This is particularly true when the issue under review is directed to the agency's special `expertise and superior knowledge of a particular field.'" In re Stallworth, 208 N.J. 182, 195 (2011) (quoting In re Herrmann, 192 N.J. 19, 28 (2007)).

"[T]his `deferential standard applies to the review of disciplinary sanctions as well[;]'" ibid. (quoting Herrmann, supra, 192 N.J. at 28). Thus, "when reviewing administrative sanctions, appellate courts should consider whether the `punishment is so disproportionate to the offense, in light of all of the circumstances, as to be shocking to one's sense of fairness.'" ibid. (quoting Carter, supra, 191 N.J. at 484).

The agency's findings should be affirmed if they "could reasonably have been reached on sufficient credible evidence present in the record, considering the proofs as a whole . . . with due regard also to the agency's expertise . . . ." Close v. Kordulak Bros., 44 N.J. 589, 599 (1965) (citations omitted). "The burden of showing the agency's action was arbitrary, unreasonable or capricious rests upon the appellant." Bowden, supra, 268 N.J. Super. at 304.

Enforceability of the Settlement Agreement

Gliottone first argues that in declining to enforce the agreement, the Commission "disregarded the strong public policy in favor of settling litigation," and asserts that this court should enforce the agreement allegedly reached by the attorneys. We disagree.

Gliottone claims that D'Amico had actual authority to enter into the settlement agreement. He relies on Mair's statement that he told D'Amico that he "was in agreement on resolving the matter for a six month penalty[,]" and on D'Amico's subsequent representation in her e-mail that she "was finally given authorization . . . to settle." He argues that when these two statements are considered in tandem, it is clear that D'Amico was authorized to enter into the agreement.

Alternatively, Gliottone argues that D'Amico had apparent authority because she stated that she was given authorization to settle and it was reasonable to infer from this representation that she had, in fact, received authorization from the County Administrator.

Gliottone also claims that he "reasonably relied" on this representation, as evidenced by the fact that he advised friends and family that he would soon be returning to work, and even notified creditors that he would soon be able to begin paying them back.

We acknowledge that "settlement of litigation ranks high in our public policy." Brundage v. Estate of Carambio, 195 N.J. 575, 601 (2008) (citations omitted). In furtherance of this policy, our courts "strain to give effect to the terms of a settlement wherever possible." Dep't of Pub. Advocate v. N.J. Bd. of Pub. Util., 206 N.J.Super. 523, 528 (App. Div. 1985). However, it must first be established that a settlement agreement actually existed and the party seeking to enforce the agreement bears the burden of proving that the agreement actually exists. Amatuzzo v. Kozmiuk, 305 N.J.Super. 469, 475 (App. Div. 1997).

A settlement agreement entered into by an attorney on behalf of a client is binding only if the attorney had actual or apparent authority to settle the case; otherwise, "the consent of the client is necessary." Ibid. "[A]n agent may only bind his principal for such acts that `are within his actual or apparent authority.'" N.J. Lawyers' Fund for Client Prot. v. Stewart Title Guar. Co., 203 N.J. 208, 220 (2010) (internal quotation marks omitted).

The critical question in every apparent authority case focuses upon whether the principal held out the agent such that "a person of ordinary prudence" is justified in presuming that such agent has authority to perform the particular act in question. C.B. Snyder Realty Co. v. Nat'l Newark & Essex Banking Co. of Newark, 14 N.J. 146, 154 (1953). A party seeking to rely on the theory of apparent authority must establish:

Gliottone has failed to establish any of these criteria. He has not identified any conduct of the principal that created an appearance that D'Amico was authorized to settle the disciplinary matter with a six-month suspension.

Gliottone also failed to establish that D'Amico had apparent authority to settle. Gliottone relies solely on D'Amico's statement contained in her July 16, 2010 e-mail. It is well-established that "the appearance of authority . . . cannot be established alone and solely by proof of [conduct by] the supposed agent." Mercer, supra, 324 N.J. Super. at 318; see also Amatuzzo, supra, 305 N.J. Super. at 476 ("[T]he attorney's words or acts alone are insufficient to cloak the attorney with apparent authority.").

Gliottone also argues that Mair's statement in his certification that he "discussed the proposed settlement agreement with Stephanie D'Amico, Esq. on July 16, 2010, and advised her that I was in agreement on resolving the matter for a six month penalty" created an appearance of authority. However, Mair's certification actually confirms D'Amico's lack of authority. Although Mair stated that he initially agreed with the proposal to settle the matter with a six-month suspension, there is nothing in the record to support Gliottone's claim that D'Amico was given the authority to make a binding offer to Gliottone before a settlement agreement was drafted and reviewed by the County authorities.

Gliottone's claim that he relied on D'Amico's representation to his detriment is without merit. To succeed under this theory, Gliottone would have to show that respondents "engaged in conduct, either intentionally or under circumstances that induced reliance, and that [he] acted or changed [his] position to [his] detriment." Knorr v. Smeal, 178 N.J. 169, 178 (2003). The first indication of settlement discussions contained in the record before us came in the form of D'Amico's e-mail to Gliottone's counsel on June 9, 2010, six days after the hearing had concluded. D'Amico said only that she would speak with her client about settlement on the following day. On June 18, 2010, D'Amico sent another e-mail indicating she had "forwarded the offer and made a recommendation to [her] client." Not until the July 16, 2010 e-mail, did D'Amico make any representations that could possibly have been relied upon by Gliottone when D'Amico indicated she was "given authorization today to settle this matter." Twenty minutes after sending an e-mail to D'Amico "accepting" the offer of a six-month suspension, Gliottone's counsel wrote to the ALJ and indicated "the above-noted matter appears to have reached settlement." D'Amico responded four days later that the settlement offer was only "tentative" and subject to approval by the County Administrator. Thus, Gliottone's claim of reliance is necessarily limited to the four-day window between D'Amico's July 16 e-mail and her July 20 disclaimer.

Gliottone's claim of reliance is based on advising "his family, friends, and creditors that he would be returning to work shortly." When he learned that he would not be returning to work, he claims to have "suffered embarrassment and possible other financial penalties[.]" No prejudice was proven or even alleged on the record below and Gliottone's claims here are purely speculative. Any misimpression created by D'Amico's July 16 e-mail was promptly clarified by her letter of July 20. Since Gliottone failed to prove the requisite "reliance," he also failed to show that any reliance was "reasonable."

Essential Terms of the Agreement

Gliottone argues that the parties agreed to a six-month suspension and intended to work out the remaining terms of the agreement at a later date. He relies on his attorney's July 16, 2010 e-mail to D'Amico stating, "[h]e will accept the six months." However, in the same e-mail, Gliottone's counsel acknowledged that the parties still have to "work out the rest of the agreement."

"[P]arties may orally, by informal memorandum, or by both agree upon all the essential terms of a contract and effectively bind themselves thereon, if that is their intention, even though they contemplate the execution later of a formal document to memorialize their undertaking." Comerata v. Chaumount, Inc., 52 N.J.Super. 299, 305 (App. Div. 1958). However, when parties contemplate that terms of a preliminary agreement will later be reduced to a formal written contract, whether the preliminary agreement is binding is a matter of the parties' intent. Morales v. Santiago, 217 N.J.Super. 496, 501 (App. Div. 1987). "Absence of essential terms from a preliminary agreement is persuasive evidence that the parties did not intend to be bound by it." Id. at 502.

The discussions regarding the length of Gliottone's suspension failed to address how the total period he was out of work would be treated. As the Commission noted in its decision, the treatment of Gliottone's absence was particularly essential to any settlement agreement, as he had been out of work for eleven months at the time of the discussions and N.J.S.A. 11A:2-20 prohibits a suspension greater than six months. The Commission took the position that it could not recognize any agreement as valid that did not address how the five additional months Gliottone was out of work would be treated. Even if D'Amico had authority to negotiate a settlement, her proposal lacked essential terms which render it non-binding and unenforceable. We are therefore satisfied that the Commission's conclusion that there was no enforceable agreement was supported by credible evidence and should not be disturbed.

The Penalty of Removal

Gliottone argues that the Commission did not properly apply the theory of progressive discipline to this case, as it failed to give adequate consideration to his "unblemished disciplinary record" and the reasons for his contact with Falcone, which should have served as mitigating factors.

He relies on West New York v. Bock, 38 N.J. 500 (1962), which introduced the concept of progressive discipline. Bock held that an employee's past record could properly be considered in fashioning the "appropriate penalty for the current specific offense" Id., at 523. Gliottone cites several unpublished cases in which an officer's removal was upheld, distinguishing them on the grounds that the conduct in those cases was more egregious than his. He also cites several cases in which the officers received lesser penalties than removal.

In In re Carter, supra, the Supreme Court recognized that progressive discipline is a consideration when determining the propriety of sanctions but confirmed that it is not an absolute mandate. 191 N.J. at 483-84. Carter involved a police officer who was charged with disciplinary notices for, among other things, sleeping on duty. Id. at 476. Although the Merit System Board (MSB) upheld the sanction of termination, we reversed, concluding that imposition of that sanction violated the principle of progressive discipline. Id. at 481-82. The Supreme Court reversed our decision and reinstated the penalty imposed by the MSB, holding that progressive discipline should not be viewed "as a fixed and immutable rule to be followed without question," and "that some disciplinary infractions are so serious that removal is appropriate notwithstanding a largely unblemished prior record." Id. at 484.

In In re Herrmann, supra, the Supreme Court concluded that we exceeded the scope of review when we reversed the termination of employment of a DYFS worker imposed both by her employer and the ALJ, and remanded for the imposition of a lesser penalty. 192 N.J. at 39. The Court held that the appellate panel "impermissibly imposed its own judgment as to the proper penalty. . . when the MSB's penalty could not be said to be either illegal or unreasonable, let alone `shocking' any sense of fairness." Ibid. The Court agreed with the MSB that "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[,]" removal from office may be appropriate even though normal principles of progressive discipline would have required a lesser sanction. Id. at 33.

Bowden v. Bayside State Prison, supra, involved a corrections officer who was terminated by Bayside State Prison (Bayside) for playing cards with inmates and paying his debts by bringing cigarettes into the prison. 268 N.J. Super. at 303. The ALJ reversed the decision to remove Bowden and ordered a six-month suspension. Ibid. The MSB adopted the ALJ's decision and Bayside appealed. Ibid. We reversed the MSB's reduction of punishment from dismissal to a six-month suspension, finding correction facilities are "sui generis" and the "appraisal of the seriousness of Bowden's offense and degree to which such offenses subvert discipline at Bayside State Prison are matters peculiarly within the expertise of the corrections officials." Id. at 306. We concluded that the "violation of rules barring relationships of familiarity and dealings between correction officers and inmates would seem to us to be conduct which the system cannot safely tolerate." Ibid.

Gliottone's attempt to minimize the nature of his relationship with Falcone is not supported by the record. Although Gliottone and Falcone denied any romantic involvement at the time of his suspension, Gliottone testified that when they first began dating they were involved in an intimate relationship.2 Moreover, their contact during and after Falcone's incarceration included letter-writing, jail visits and over one hundred phone calls during a two month period. Since her release, Falcone has been living in an apartment which Gliottone leased in his name. It cannot be argued that this was a casual relationship or that it did not constitute undue familiarity.

Gliottone asserts that no harm occurred as a result of his relationship with Falcone and this should mitigate his penalty. However, the focus here is on the extent to which an unduly familiar relationship between an officer and an inmate or parolee may jeopardize the safety of the officer involved, as well as others. No harm need actually result from a violation of these rules in order for punishment to be warranted. Rather, it is enough that such a relationship threatens the safety and integrity of correctional facilities and puts others at risk of harm.

As the ALJ observed, "as an ex-inmate under parole," Falcone's contacts with Gliottone "could have placed [Gliottone] at risk because it could provide leverage to the inmates [at the MCCC] and make him vulnerable to their demands." Gliottone's continued relationship with Falcone, as well as his concealment of that relationship, clearly violated the MCCC's policies, of which he was fully apprised.

We are satisfied that the Commission's decision to remove Gliottone was supported by sufficient credible evidence and was not arbitrary or capricious.

Affirmed.