Termination of Corrections Officer Sustained

Posted on December 23, 2009 by Donald Barbati

 

On December 21, 2009, the Appellate Division decidedIn the Matter of Edwin Garcia, Department of Corrections Hudson County, Docket No.: A-1404-08T3. In the case, Edwin Garcia appeals from the final administrative action of the Civil Service Commission, terminating his employment as a corrections officer with the Hudson County Department of Corrections.

At issue were two disciplinary matters. In the first, the County maintained that Garcia failed to include in a report the fact that another officer had lunged at a handcuffed inmate and grabbed the inmate’s shirt. As a result, the County charged Garcia with insubordination, conduct unbecoming a public employee, neglect of duty, and other sufficient cause. In the second disciplinary matter, the County asserted that, while involved in an incident with an inmate, Garcia used excessive force despite being ordered numerous times to cease. For this incident, Garcia was charged with conduct unbecoming a public employee, neglect of duty, and other sufficient cause. The County sought to terminate Garcia’s employment.

The County held a hearing on the disciplinary charges on March 2, and April 4, 2007, wherein the hearing officer sustained the charges. A final notice of disciplinary action terminating Garcia’s employment was issued on June 7, 2007. Garcia appealed the decision to the Civil Service Commission and a hearing was held before an Administrative Law Judge.

The ALJ sustained both charges, finding, with respect to the first incident, that “Garcia submitted a report omitting the use of excessive force on an inmate” and, with respect to the second incident, that “Garcia used excessive force to subdue inmate E.B. by striking him, although ordered to desist by superior officers.” In the Initial Decision, the ALJ concluded that Garcia had committed conduct unbecoming a public employee, neglect of duty, and insubordination. In light of Garcia’s prior record and the nature of these offenses, the ALJ imposed the sanction of removal. The Commission, in its independent evaluation of the record, concluded that the removal was justified. This appeal ensued.

 On appeal, Garcia argued the findings of the Commission were not justified and the sanction of removal was arbitrary and capricious. The Appellate Division affirmed Garcia’s termination. Specifically, the Court found that there was substantial credible evidence supporting the findings of the ALJ and the conclusions reached by the Commission. The Court also determined the sanction of termination for the infractions is not unreasonable or disproportionate in light of the offenses, particularly when viewed in conjunction with Garcia’s prior disciplinary record.     

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Suspension of Hudson County Corrections Officer Upheld

Posted on August 17, 2009 by Donald Barbati

 

On August 17, 2009, the Appellate Division decided In the Matter of Juan Melendez, Docket No.: A-4617-07T1. In the case, Juan Melendez, a Hudson County Corrections Officer, appealed from a final administrative determination of the Merit System Board (“Board”) imposing a fifteen-day suspension for neglect of duty and other sufficient cause warranting discipline.

The Board adopted the initial determination of an Administrative Law Judge on a remand following his first determination that the suspension should only be for three days following Hudson County’s suspension of thirty days. On appeal, Melendez argues that: (1) the decision of the Board upholding the charges is not supported by credible evidence in the record; (2) the penalty of a fifteen day suspension is at odds with the concept of progressive discipline and appellant’s prior disciplinary history; and (3) he is entitled to attorneys’ fees based on having prevailed on all or substantially all of the primary issues.

The testimony before the ALJ revealed that Sgt. Kevin Orlik reported, and testified, that Melendez was asleep at his post in a trailer annexed to the jail on March 19, 2006 when Orlik and other officers arrived to conduct a search of the cells. In his testimony, Orlik testified that when he entered the trailer he “saw Officer Melendez reclined back in a chair with a roll of toilet paper as a pillow or cushion behind his neck,” “his eyes were closed,” and he was “motionless” as he was observed “for approximately a minute to two minutes” until other officers entered the trailer and started to make noise. Melendez testified that he wasn’t sleeping and told that to Orlik when he directed Melendez “to write a report on why [he] was sleeping.” Melendez challenged Orlik’s credibility by noting that his written report omitted details embodied in his testimony.

There was also testimony about the practice of standing when a superior officer enters the room. Melendez did not do so on the night in questions, and testified that it wasn’t a “regular routine” and he generally did not do so. Although the failure to stand was not itself a basis for discipline, it was determined to be relevant to the issue of “attentiveness” at the time, as well as to the ALJ’s finding that the inattentive conduct was a “sufficient cause” for the three-day suspension he initially imposed.

On the remand, despite making credibility determinations against Orlik because of the failure to include certain details in his written report, the ALJ found neglect of duty and “other sufficient cause” for the discipline, and found that “the failure to stand and acknowledge Sgt. Orlik’s when he entered the trailer to constitute being inattentive.”

 

In its opinion, the Board agreed with Melendez that “his failure to stand was not a specific infraction or charge,” but concluded that it constituted “evidence that he was inattentive, which he was charged with,” and “[i]t was the appellant’s inattentiveness that constituted his neglect of duty as it could have resulted in harm to the inmates.”  

The Appellate Division affirmed the determination of the Board in its entirety. The Court agreed with Melendez that the failure to stand when Orlik entered the trailer was neither a basis for the disciplinary charges nor can be a basis by itself for disciplinary action. However, the Court noted that it could be considered by the Board to be part of the overall neglect of the circumstances by Melendez. His response to the entry of a superior officer was relevant to whether he was paying proper attention and was sufficiently attentive to his circumstances. While it may not be a specific violation for not standing when a superior officer entered the trailer, the Court did not disagree that the subject related to Melendez’s “inattentiveness,” and “[i]t was the appellant’s inattentiveness that constituted his neglect of duty as it could have resulted in harm to the inmates.” 

The Court also determined that the discipline imposed cannot be considered “shocking to one’s sense of fairness,” although the Court may have reached a different result. Lastly, the Court found that the Board did not abuse its discretion in determining that Melendez did not prevail on “substantially all of the primary issues,” and thereby denying him counsel fees. Some of the charges were sustained and a fifteen-day suspension was imposed on the Board’s review and, therefore, the Court agreed with the Board that Melendez was not entitled to fees despite the reduction of fifteen days of the suspension.
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Corrections' Officer Suspension for Buying Home With Probationer Upheld

Posted on April 1, 2009 by Frank Crivelli

On March 30, 2009, the Superior Court of New Jersey, Appellate Division decided the case In the Matter of Richard J. Rivera, Docket No. A-3672-07T2. In the case, Richard J. Rivera, a county corrections officer assigned to the Monmouth County Correctional Institute (“MCCI”), appealed from a final decision of the Merit System Board suspending him for ten (10) days without pay for violating Rule 4.1.28 of the Monmouth County Sheriff’s Department.

The alleged violation was based upon Rivera’s failure to disclose a relationship with a “current offender,” which includes probationers, after he purchased a home with a woman who was on probation. On appeal, Rivera contended the rule was unconstitutionally vague, both on its face and as applied to him. The Court, in rejecting Rivera’s arguments, noted that a serious conflict of interest could arise if a corrections officer maintained a close relationship with a probationer who violated his/her probation and ultimately became incarcerated. To support this, the Court cited Bowden v. Bayside State Prison, a 1993 Appellate Division case, which held, “[t]he 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.” Consequently, the Court affirmed the Board’s final decision and upheld the penalty imposed.

This case illustrates that correction officers who become socially and/or intimately associated with persons who are either incarcerated or on parole could be subject to discipline. As a result, all correction officers should consult their respective collective bargaining agreements and/or department policies to determine whether their particular employer places limits on fraternization with certain persons.

 

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