Public Employee Discipline

On June 3, 2010, the Appellate Division decided In the Matter of Torres Mayfield, Docket No.: A-2969-08T1. In the case, Torres Mayfield appealed from the final decision of the Civil Service Commission (“Commission”) terminating him as an Atlantic City police officer for misconduct.

Mayfield was charged with violations of Atlantic City Police Department

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.


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On May 18, 2010, the Appellate Division decided In the Matter of Linda Reid, Riverfront State Prison, Docket No.: A-3145-08T2. In the case, Linda Reid appealed from the final determination of the Civil Service Commission sustaining the charges of: (1) conduct unbecoming a public employee; and (2) filing a false report; and the sanction of removal from her position as a Senior Corrections Officer at Riverfront State Prison.

Reid began working as a corrections officer at Riverfront State Prison on July 26, 2002. As a result of an incident occurring on August 6, 2005, she was charged with assaulting an inmate and filing a false report in which she represented she had been the victim. The charges were sustained at a departmental hearing and on April 25, 2007, she was removed from employment. Following an appeal, the contested case was transmitted to the Office of Administrative Law, wherein a hearing was conducted on April 30, 2008.

Testimony and evidence were presented by Captain Tommy Stahl regarding the internal affairs investigation, which concluded that Reid had assaulted an inmate and misrepresented that she was the victim; Officers Cherril Davis and Dyshella Kee who were eyewitnesses to the incident and reported that the inmate used profanity towards Reid but did not strike her, and that Reid beat the inmate and falsely claimed he assaulted her; and nurse Evelyn Mamuyac who observed only a slight swelling on Reid’s right cheek and lower lip. Reid testified on her own behalf stating that the inmate used profanities indicating he had to use the restroom after which an argument ensued and the inmate pushed her and hit her in the face, causing swelling to the right side of her face and lip and resulting in a scar under her right eye. She further testified to her exemplary performance assessment review from June 15, 2004 through June 15, 2005.

On November 14, 2008, an Administrative Law Judge (“ALJ”) issued an initial decision, making express credibility assessments and finding Reid engaged in the charged conduct. Based on several inconsistencies in Reid’s testimony, the ALJ discredited her version of the events as self-serving. In determining the appropriate sanction, the ALJ considered Reid’s status as a Senior Corrections Officer, which “subjects her to a higher standard of conduct and responsibility than is required of other public employees.” Consequently, the ALJ found this conduct so egregious as to warrant removal despite the absence of a disciplinary history. On January 16, 2009, the Commission issued a final determination adopting the ALJ’s initial decision as to the charges and the sanction of removal. This appeal ensued.

On appeal, Reid challenged the agency’s determination on the charges as not based on sufficient credible evidence in the record. She further contended the penalty of removal is not reflective of progressive discipline and, as such, the sanction should be reduced.


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On September 8, 2009, the Appellate Division decided In the Matter of Sergeant Maryelyn Conway, Docket No.: A-6162-07T3. In the case, Sergeant Maryelyn Conway appeals from an administrative determination of the New Jersey Transit Police Department suspending her for a period of four days for two related minor disciplinary infractions.

On the night of December 13, 2004, a car crashed onto an embankment above the New Jersey Transit train tracks in Waldwick. The vehicle was in a precarious position, with only a small tree preventing it from falling onto the tracks. Due to the danger that the vehicle might fall, train traffic in both directions was stopped.

Conway, a sergeant with the New Jersey Transit Police Department, was the supervising officer on duty at the time of these events. She did not go to the scene of the accident, but rather New Jersey Transit Police Officer Victor Migliorino was sent there. He reported to her that the Waldwick fire department, police, and emergency medical personnel were present, and that Waldwick personnel had taken charge of the scene. He did not believe Conway’s presence at the scene was necessary. She later deployed two other officers to the scene, contending that she did so in order that one of the officers could acquire more experience. She received periodic reports of the status of the scene from the officers present. She acknowledged in one radio transmission that it would have been easier if she were present. The New Jersey Transit police officers present did not play an active role in attending to the accident scene since Waldwick personnel were in charge. About an hour and one half after Conway was advised of the incident, the car was removed, and normal train traffic resumed.

Disciplinary charges were filed against Conway on January 10, 2005, due to her failure to go to the accident scene. She was charged with violating a General Order, which requires a police sergeant, as part of her duties and responsibilities, to “direct[ ] and participate[ ] in activities at the scene of emergencies.” Conway was also charged with “unsatisfactory performance” due to her failure to respond to the scene herself. 

The internal disciplinary hearing was conducted on May 20, 2008. In a lengthy written opinion, the hearing officer found the charges to be substantiated. In the final agency decision dated July 1, 2008, New Jersey Transit Police Chief Jospeh C. Bober found Conway guilty of both charges and imposed a two-day suspension for each charge, for a total suspension of four days. This appeal ensued.


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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.”


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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.


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