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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Correction Officer Recruit Trainee Pilot Demonstration Program Declared Void

Posted on July 28, 2009 by Frank Crivelli

 

On July 23, 2009, the Superior Court of New Jersey, Appellate Division issued its opinion in the case of James Liik, et al v. New Jersey Department of Personnel/New Jersey Department of Corrections, Docket Number A-4121-06T2.

This particular opinion has widespread implications in regard to pay and seniority of thousands of New Jersey corrections officers presently employed with the New Jersey Department of Corrections.

By way of background, in 1997, the New Jersey Department of Corrections and New Jersey Department of Personnel created and implemented a pilot program which modified training procedures for corrections officer recruits. Prior to the implementation of the pilot program, candidates for employment with the Department of Corrections were hired as employees and assigned the rank of “correction officer recruit” during their period of training and completion of their working test period. During this time, corrections officer recruits received full salary and benefits available for this particular rank. Once the working test period associated with the position of corrections officer trainee was successfully completed, they were then promoted to the position of senior corrections officer. The pilot program eliminated this practice and those individuals seeking employment with the New Jersey Department of Corrections were designated as “students/trainees.”

As a result of this change, they were no longer considered employees of the New Jersey Department of Corrections, but instead received the lesser rank of corrections officer recruit/trainee during the 14-week training period. During this 14-week training period, instead of receiving the regular salary of a corrections officer recruit, they received a $300 weekly stipend. If a recruit trainee successfully completed the prescribed program of training, they then became “employees” of the New Jersey Department of Corrections and received the salary and benefits of a corrections officer recruit. Despite the fact that the program was to last for only a period of one year, the New Jersey Department of Corrections and Department of Personnel made the program permanent in 1999. A stipend of $300.00 that was to be paid to student trainees never increased over the following years and a significant financial burden and hardship was placed upon those individuals seeking employment with the New Jersey Department of Corrections.

 

Sometime in 2007, PBA 105, the Certified Collective Bargaining Unit for Senior Corrections Officers employed by the New Jersey Department of Corrections, demanded that the Department of Personnel raise the stipend and terminate the pilot program which had been ongoing since 1997. The Department of Personnel and Department of Corrections refused their demand. As a result, an appeal was filed by the PBA challenging the Department of Corrections and Department of Personnel’s decision to continue the pilot program beyond the one year period of time.

The Superior Court of New Jersey, Appellate Division sided with PBA 105 and stated that the Civil Service Act provided that “pilot programs” may only be established and put into place for a period of one year. The Appellate Division went on to further state that if a pilot program was continued past the one year period of time, the Department of Personnel was required to issue rules and regulations allowing for such an extension under Title 4A of the New Jersey Administrative Code.

As a result of the Department carrying the program past the one year period of time, the Appellate Division declared that the continuation of the pilot program beyond the one year period of time without engaging in the rulemaking process as required by the New Jersey Administrative Procedure Act, declared the program null and void. While the Appellate Division’s decision is clear, we do not know what the New Jersey Department of Corrections or New Jersey Department of Personnel will do in regard to appealing the Appellate Court’s decision. Furthermore, we are also unsure as to whether or not the Department of Corrections will abide by the Appellate Court’s ruling and now treat those employees of the New Jersey Department of Corrections as corrections officer recruits and not recruit trainees.

Finally, a large issue looms on the horizon as to whether or not those individuals went through the corrections officer recruit training program as “students/trainees” will be entitled to back pay and benefits and a change in seniority date as a result of the ruling.

When more information is gathered from the unions as to how they will represent their members on this matter, we will update you accordingly.
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Termination of Corrections Officer Reversed

Posted on July 17, 2009 by Donald Barbati

 

On July 16, 2009, the Appellate Division decided In the Matter of Michael Brown, Monmouth County, Docket No.: A-5157-07T3. In the case, Michael Brown appealed from a final decision of the Merit System Board (“Board”) upholding the termination of his employment as a Monmouth County Corrections Officer after finding that he tested positive for marijuana.

Brown was employed by Monmouth County as a corrections officer for approximately fifteen to seventeen years. According to Captain Thomas J. Philburn, Personnel Captain at the correctional facility, Brown was “a very low-keyed, soft-spoken individual” who did his job and had no prior disciplinary problems other than some minor “attendance-related issues.”

The County uses National Safety Compliance (“NSC”), a safety services and compliance company certified by the Substance Abuse and Mental Health Administration, to perform random drug tests on its employees in accordance with the County’s substance abuse policy. NSC, in turn, employs Lab One, located in Kansas, to perform the actual laboratory tests on the samples.

On July 13, 2004, Brown was randomly selected for a drug test pursuant to the County’s policy. When the test was reported as positive for marijuana use, the matter was heard internally and Brown was found to have violated the County’s substance abuse policy. After a final notice of disciplinary action was served on Brown on August 24, 2004, the matter was transferred to the Office of Administrative Law (“OAL”) as a contested case.

A hearing was held before the OAL on December 7, 2005 and two witnesses testified on behalf of the County, Captain Philburn and Ronald Raslowsy, President of NSC. Neither of the witnesses had any personal knowledge of the procedures used for the testing, nor could they establish a chain of custody from the time the sample was taken to the time it was purportedly tested at the laboratory in Kansas.

Radomsky testified that he “believed” that the Attorney General guidelines for testing a law enforcement officer were followed, but had no personal knowledge as to whether they actually were. He did know, however, that the proper interview form was not used. He had no knowledge of who was present when Brown was tested, who witnessed the test, whether the sample was properly labeled, packaged and shipped, or who participated in the shipping of the sample. Nevertheless, the Administrative Law Judge (“ALJ”) rendered an initial decision on October 20, 2006 sustaining the charges and ordering Brown’s removal.

 

The Board remanded the matter to the OAL because the proofs submitted by the County were so illegible and incomplete that it could not make a determination on Brown’s appeal. The Board directed the County to call additional witnesses to authenticate the validity of the documents or provide additional testimony. A second hearing was held via telephone on May 9, 2007, but no additional witnesses and no additional documents were submitted into evidence, although the County did provide more legible copies of the same documents previously submitted.

After the remand hearing, the ALJ found that the documentation submitted established a “reasonable probability that the integrity of the sample had been maintained, and of the validity of the laboratory analyses that appellant’s sample tested positive for marijuana.” However, no one could verify that the test was conducted in accordance with the Attorney General guidelines or that the sample was properly collected, properly labeled, properly shipped and properly tested. Nevertheless, after the Board reviewed the ALJ’s remand decision, it agreed with his findings and recommendation. This appeal ensued.

On appeal, Brown argued that: (1) the Board’s final decision was arbitrary and capricious; (2) the case was entirely based upon hearsay evidence; (3) the documents were entirely hearsay and unreliable on their fact; (4) the Board erred in remanding the matter to the OAL; (5) the chain of custody for the sample was never established; (6) the Attorney General’s drug testing guidelines were not followed; (7) the County’s own drug testing guidelines were not followed; and (8) the County violated his constitutional right to privacy.

The Appellate Division disagreed with the ALJ’s finding after remand that the documents presented by the County satisfied New Jersey Rule of Evidence 803(c)(6). The Court noted that the County’s entire case was based upon incompetent, inadmissible evidence. Even under the relaxed evidentiary standard of an administrative hearing, the testimony and the documentary evidence were so substantially lacking in reliability that they could not support the case against Brown. As a result, the Court determined the Board’s decision was not supported by sufficient, credible evidence in the record. Therefore, the Court reversed and vacated the Board’s final decision.
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Appeal of Removal for Failure to Complete PTC Course Dismissed

Posted on June 8, 2009 by Donald Barbati

 

On June 8, 2009, 2009, the Appellate Division decided In the Matter of Tanya Johnson, Docket No.: A-0482-07T2. In the case, Tanya Johnson appealed from a final decision of the Merit System Board (“Board”) terminating her employment as a parole officer recruit.

In her position as a recruit, Johnson was required to complete a Police Training Commission (“PTC”) course. She began the basic course on January 9, 2006. On March 24, 2006, she failed a test for unarmed defensive tactics. She was given remediation training, but on March 29, Johnson failed the test again and was dismissed from the PTC course.

On the same date, March 29, 2006, Johnson was served with a notice of dismissal from her position as a parole officer recruit. On March 31, 2006, she was served with a preliminary notice of disciplinary action for failure to comply with N.J.A.C. 4A:2-2.3(a)(11), which required her to successfully complete all of the instructional areas of the training cycle. She was removed effective April 4, 2006, and a departmental hearing was held on July 19, 2006. The charge was sustained.

Johnson appealed to the Department of Corrections (“DOC”) Training Academy on April 20, 2006. The Training Academy, however, was not the proper venue for the appeal and Johnson’s counsel was advised that the appeal had been filed with the wrong party and had to be filed with the PTC. The appeal was not sent to the proper venue until almost a year after her dismissal, however.

Ultimately, the matter was referred to the Office of Administrative Law (“OAL”) and, thereafter, the appointing authority moved to dismiss on the grounds that the appeal was not timely filed with the PTC. The administrative law judge (“ALJ”) granted the motion and the matter was dismissed with prejudice. Johnson appealed to the Board and the Board affirmed the ALJ’s dismissal of the appeal. However, the Board dismissed the appeal without prejudice. This appeal ensued.

Since the dismissal of the appeal was without prejudice, the Appellate Division held the matter was not ripe for appeal because it did not know whether Johnson was ultimately successful in having the PTC accept her untimely appeal. Although Johnson argued that the Court should order a preliminary hearing on the merits, the Court determined it could not do so since Johnson has not complied with the procedural requirements for an administrative hearing. Accordingly, the Court dismissed the appeal without prejudice because is interlocutory.     

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