On June 1, 2010, the Appellate Division decided In the Matter of Michael Sottilare, Department of Corrections Hudson County, Docket No.: A-4761-08T3. In the case, Michael Sottilare appealed from a Civil Service Commission (“Commission”) decision affirming the Hudson County Division of Personnel’s termination of his employment with the county’s Department of Corrections.

Sottilare, after more than ten years as a corrections officer, received four preliminary notices of disciplinary action arising from events commencing on November 30, 2005 and continuing through December 23, 2005. The final incident resulted in his termination.

While on leave due to an on-the-job injury, Sottilare was videotaped working at a construction site in contravention of Hudson County’s policy requiring persons on leave to remain at home unless they are receiving medical care or purchasing medication. A disciplinary charge of malingering issued as a result. Shortly thereafter, on December 23, 2005, Sottilare made a telephone call to the New Jersey Policemen’s Benevolent Association Local 109 office in order to obtain legal representation for the hearing scheduled on the malingering charge and to request a postponement. Officer Shaara Marie Green, then the Vice President of PBA Local 109, answered the phone call.

When Green testified before the Office of Administrative Law, she said she told Sottilare that the union could not provide him with legal representation because the Internal Affairs Unit (“IAU”) officers were no longer members. Sottilare had been assigned to IAU since 1995 or 1996. Green also told Sottialre to obtain his own attorney, and gave him the name of the person that his attorney should contact in order to request the postponement.

Green also testified that after she told Sottialre that PBA Local 109 could not provide him with counsel, Sottilare informed her that she was under investigation by IAU. Sottialre explained to Green that surveillance was being initiated because she was reportedly living with an ex-inmate in violation of departmental policy. 

Green immediately telephoned Ricardo Alves, Sottilare’s supervisor at IAU, to report the conversation. When Alves testified, he confirmed that he received a call from Green about the complaint that had been filed against her and that Sottilare had told her that she was the subject of an IAU investigation. Deputy Warden David Krusznis confirmed that Green was being investigated and said that disclosure of the existence of a pending IAU investigation is a violation of departmental policies and procedures, as well as of guidelines promulgated by the Office of the Attorney General.

After considering all the available testimony, which included testimony by Sottilare refuting Green’s version of events, the Administrative Law Judge (“ALJ”) found Green to be more believable, persuasive, and more credible than Sottilare. Based on this testimony, the ALJ found Sottilare disclosed a pending investigation. Since this was a serious violation of his job responsibilities, the ALJ concluded that removal was the appropriate penalty for his conduct. After the Commission affirmed the ALJ’s determination, this appeal ensued.

On appeal, Sottilare argued that even if Green’s testimony is credited and he breached the applicable confidentiality rules, termination was too severe a penalty. The Appellate Division rejected this argument and affirmed the Commission’s decision to remove him. According to the Court, Sottilare’s breach of confidentiality displays a fundamental lack of trustworthiness, thereby warranting his removal. As indicated by the Court, termination is warranted whenever the employee’s conduct is unbecoming to the employee’s condition or renders the employee unsuitable for continuation in the position. Consequently, the Court determined that Sottialre’s conduct made him unsuitable to continue in his employment as an IAU officer.