Opinion
DOCKET NO. A-4323-13T1
04-12-2016
IN THE MATTER OF DANA REGISTER, MOUNTAINVIEW YOUTH CORRECTIONAL FACILITY, DEPARTMENT OF CORRECTIONS.
Luretha M. Stribling argued the cause for appellant Dana Register. Peter H. Jenkins argued the cause for respondent New Jersey Department of Corrections (Robert Lougy, Acting Attorney General, attorney; Lisa A. Puglisi, Assistant Attorney General, of counsel; Mr. Jenkins, Deputy Attorney General, on the brief). Robert Lougy, Acting Attorney General, attorney for respondent Civil Service Commission (Pamela N. Ullman, Deputy Attorney General, on the statement in lieu of brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Hoffman and Whipple. On appeal from the New Jersey Civil Service Commission, CSC Docket No. 2014-1551. Luretha M. Stribling argued the cause for appellant Dana Register. Peter H. Jenkins argued the cause for respondent New Jersey Department of Corrections (Robert Lougy, Acting Attorney General, attorney; Lisa A. Puglisi, Assistant Attorney General, of counsel; Mr. Jenkins, Deputy Attorney General, on the brief). Robert Lougy, Acting Attorney General, attorney for respondent Civil Service Commission (Pamela N. Ullman, Deputy Attorney General, on the statement in lieu of brief). PER CURIAM
Appellant Dana Register appeals from the May 7, 2014 final decision of the Civil Service Commission (the Commission), which upheld her removal from the position of senior corrections officer with the Mountainview Youth Correctional Facility (Mountainview). For the reasons that follow, we affirm.
I.
We discern the following facts from the record. Appellant worked as an employee of the New Jersey Department of Corrections (DOC) since 2001. Since November 2012, she served as a senior corrections officer at Mountainview. On September 9, 2013, the DOC's Special Investigations Division (SID) received an anonymous note, which stated:
SCO Register is messing with an inmate [T.W.] in the [Full Minimum Unit]. She is getting out of hand. She writes him letters and mails them from a po box in Easton [PA].That day, SID began an investigation. A "mail cover" was implemented on inmate T.W.'s incoming and outgoing mail. A review of T.W.'s visitors list found none, nor were any phone calls documented. Nevertheless, from February through September 2013, the investigation revealed that T.W. was receiving letters from one "Janelle Lewis." These letters contained romantic language, such as "I am unable to show you the depth of my love for obvious reasons[,]" and, "As I see you with so, so much love in your eyes for me." A search for a Janelle Lewis from the Easton, PA return address produced no results.
A review of T.W.'s inmate trust account statement revealed T.W. received money orders from one Janelle Lewis at the same Easton, PA address, totaling $1050. T.W.'s trust account statement showed deposits totaling $450 received from one Jamiliah Williams from Newark. A search of the Newark return address for the deposits yielded negative results; however, appellant's previous address was directly across the street from the fictitious Newark address. T.W. responded to "Janelle Lewis" by mailing letters to a P.O. Box in Easton, PA. The U.S. Postal Service advised SID that the box was registered, as of February 8, 2013, to appellant, who had requested authorization for use by a twelve-year-old daughter, "Janelle Lewis." SID subsequently determined appellant had no such daughter.
On October 2, 2013, T.W. was placed into Temporary Close Custody, and his letters were confiscated. A search revealed numerous letters from Janelle Lewis dating back to February 25, 2013. The letters contained similar language to the other letters T.W. received from Janelle Lewis, including sexual innuendos and romantic content. Approximately 129 letters or cards that were mailed from Janelle Lewis were found in T.W.'s possession. All letters shared common patterns of computer-type font and handwritten envelopes. On October 3, 2013, T.W. was transferred to another correctional facility.
On October 8, 2013, SID investigators interviewed appellant, who admitted that she knew T.W., and that she wrote the letters under the name Janelle Lewis and used the P.O. Box in Easton so T.W. could receive the mail. However, she insisted the communications were merely friendly and denied there was any physical or sexual contact between them. She stated that she intended to continue a relationship with T.W. once he completed his sentence. She denied sending the money to T.W.'s trust account, and could not explain the money orders. She subsequently stated she ceased communicating with T.W. in August 2013, and had no intention to resume the connection; however, T.W. continued to receive letters that gave no indication the relationship had ended.
In light of the information and evidence obtained by SID, Mountainview issued a Preliminary Notice of Disciplinary Action (PNDA) on October 8, 2013, which proposed suspension effective pending a Loudermill hearing. The charges against appellant included conduct unbecoming a public employee, N.J.A.C. 4A:2-2.3(a)(6) and Human Resources Bulletin (HRB) 84-17 as amended C-11; other sufficient causes, N.J.A.C. 4A:2-2.3(a)(12), improper or unauthorized contact with an inmate, undue familiarity with inmates, parolees, their families, or friends, HRB 84-17 as amended D-4; other sufficient causes, N.J.A.C. 4A:2-2.3(a)(12), violation of a rule, regulation, policy, procedure, order, or administrative decision, HRB 84-17 as amended E-1. The PNDA also listed violations of DOC Rules and Regulations, namely, "being unduly familiar with inmate [T.W.]"; "using an alias to write and receive letters of a romantic nature with inmate [T.W.]"; and "want[ing] to continue the relationship once he completed his sentence." Appellant did not request a hearing, and on December 2, 2013, Mountainview issued a Final Notice of Disciplinary Action (FNDA), with an immediate effective removal date.
Appellant appealed the disciplinary action and the Commission referred the matter to the Office of Administrative Law (OAL). An administrative law judge (the ALJ) held a hearing on February 21, 2014. Appellant conceded writing letters to T.W. that included expressions of love; however, she argued that whether this amounted to undue familiarity was a "matter of interpretation." She described the atmosphere at Mountainview as racially tense, and suggested a fellow corrections officer conducted a personal investigation of her, in violation of DOC regulations and the Attorney General's Guidelines. She also argued that removal was improper, and pointed to mitigating factors, including her struggles with depression, excellent work history, and military service. On April 7, 2014, the ALJ issued his initial decision upholding the removal.
In his decision, the ALJ initially noted that many of the material facts discovered through investigation were not seriously in contention. After reviewing all the evidence, the ALJ found:
Using an alias, appellant did send and receive from an inmate at Mountainview Correctional Facility those letters now in evidence as Exhibits R-6 through 12, and R-14 through R-19. During that period, she planned with the inmate to continue their romantic relationship once the inmate's sentence was served. Appellant's conduct was unbecoming a public law enforcement employee, violating those civil service rules and departmental regulations cited by DOC in the PNDA and FNDA. Public safety concerns and the good order of the facility justify termination.
The ALJ found no doubt that appellant intended contact with T.W. after his release. He found it unnecessary to determine whether the contact became physical, as the issue was not raised in the charge. The ALJ then distinguished case law cited by appellant to nullify appellant's termination as a matter of law. He noted that DOC's position that the Attorney General's Guidelines do not apply to the DOC was unrebutted by appellant, dismissing her argument that an unauthorized investigation was conducted. Regardless, SID conducted an authorized independent investigation, satisfying any potential requirements.
The ALJ rejected appellant's argument that the policy of progressive discipline barred dismissal. He explained the progressive discipline policy may be set aside when a particular offense is sufficiently egregious. The ALJ continued that the level of seriousness to recklessly disregard pertinent rules and regulations justified removal as a penalty. He noted appellant's "romantic/erotic connection with [T.W.] went well past the threshold of 'undue familiarity[,]'" and that she "plainly understood that she was doing wrong." Moreover, her actions "placed herself, the inmate and other officers at risk, putting the good order and safety of the facility in jeopardy."
On May 7, 2014, the Commission adopted the ALJ's factual findings and decision, and issued its final administrative finding "that the action of the appointing authority in removing [appellant] was justified." This appeal followed.
II.
We begin with a review of the well-established principles that guide our analysis. "The scope of appellate review of a final agency decision is limited[.]" In re Carter, 191 N.J. 474, 482 (2007) (citing Aqua Beach Condo. Ass'n v. Dep't of Cmty. Affairs, 186 N.J. 5, 15-16 (2006)). "[A]dministrative agencies have broad discretion to adjudicate disputes." Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992). An agency decision should not be overturned unless there is "a showing that it was arbitrary, capricious or unreasonable, or that it lacked fair support in the evidence[.]" In re Carter, supra, 191 N.J. at 482 (quoting Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963)).
The role of an appellate court
is generally restricted to three inquiries: (1) whether the agency's action violates express or implied legislative policies, that is, did the agency follow the law; (2) whether the record contains substantial evidence to support the findings on which the agency based its action; and (3) whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors.Additionally, when reviewing agency action, "[a]ppellate courts must defer to an agency's expertise and superior knowledge of a particular field." Greenwood, supra, 127 N.J. at 513. An appellate court owes no deference to an agency's interpretation of a strictly legal issue, but "if substantial evidence supports the agency's decision, 'a court may not substitute its own judgment for the agency's even though the court might have reached a different result[.]'" In re Carter, supra, 191 N.J. at 483 (quoting Greenwood, supra, 127 N.J. at 513). However, we may not simply rubber-stamp an agency's decision. In re Taylor, 158 N.J. 644, 657 (1999).
[Mazza v. Bd. of Trs. Police & Firemen's Ret. Sys., 143 N.J. 22, 25 (1995) (citing Campbell, supra, 39 N.J. at 562).]
III.
On appeal, appellant argues that the Commission's decision was arbitrary and capricious and must be reversed. Specifically, appellant contends the ALJ and Commission failed to engage in a proper consideration of her numerous mitigating factors, which would have led them to conclude that termination was unreasonable. Moreover, appellant submits that the charge of conduct unbecoming an officer and undue familiarity, when viewed in conjunction with mitigating factors, should have resulted in a penalty short of removal. Appellant further contends the decision reached to terminate appellant was based on an unauthorized and improper investigation and, accordingly, the ALJ should have vacated the dismissal on procedural grounds. Finally, appellant argues this disciplinary action was unfair and disproportionate, and the ALJ should have vacated the dismissal and assigned a penalty which comported with the progressive discipline policy.
The ALJ issued a comprehensive opinion that thoroughly reviewed the testimony of witnesses and weighed the evidence, and concluded that appellant had engaged in conduct unbecoming a public employee and violated several agency rules and regulations. We defer to these findings and conclusions of the ALJ, which the Commission adopted, as they were based on sufficient, credible evidence, and were not arbitrary, capricious, or unreasonable. See In re Carter, supra, 191 N.J. at 482-83; Greenwood, supra, 127 N.J. at 513; Mazza, supra, 143 N.J. at 25. The Commission stated it considered the record and the ALJ's initial decision, and made an independent evaluation of the record before upholding the removal.
We see no reason on the record before us to disturb the Commission's final agency decision. "Maintaining discipline within law enforcement agencies is important for the safety and security of the public." Henry v. Rahway State Prison, 81 N.J. 571, 579 (1980). "The 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." Bowden v. Bayside State Prison (Dep't of Corr.), 268 N.J. Super. 301, 305-06 (App. Div. 1993), certif. denied, 135 N.J. 469 (1994). "[S]uch facilities, if not properly operated, have a capacity to become 'tinderboxes.'" Ibid.
The record indisputably reveals that appellant engaged in a highly inappropriate relationship with an inmate, and in doing so recklessly disregarded known rules and regulations. Appellant's indiscretions placed herself, the inmates, and the other officers at serious risk, as well as the safety and organization of the entire facility. As a corrections officer, appellant was charged with the knowledge of the need for security and integrity at the facility; her conduct was contrary to that charge and meets the clear standard of both of "[c]onduct unbecoming a public employee," N.J.A.C. 4A:2-2.3(a)(6), and "[o]ther sufficient cause," N.J.A.C. 4A:2-2.3(a)(12). See In re Young, 202 N.J. 50, 66 (2010); In re Phillips, 117 N.J. 567, 576-77 (1990).
We finally reject appellant's contention that her termination was unfair and disproportionate because it was not based on the system of progressive discipline. The deferential standard of review owed to administrative agencies applies in the review of disciplinary sanctions imposed by those agencies. In re Herrmann, 192 N.J. 19, 28 (2007). "A reviewing court should alter a sanction imposed by an administrative agency only 'when necessary to bring the agency's action into conformity with its delegated authority.'" Ibid. (quoting In re Polk, 90 N.J. 550, 578 (1982)). In reviewing administrative sanctions, "the test . . . is 'whether such punishment is so disproportionate to the offense, in light of all the circumstances, as to be shocking to one's sense of fairness.'" Id. at 28-29 (quoting In re Polk, supra, 90 N.J. at 578).
As the ALJ correctly noted, the concept of progressive discipline is not "a fixed and immutable rule to be followed without question." In re Carter, supra, 191 N.J. at 484. "[S]ome disciplinary infractions are so serious that removal is appropriate notwithstanding a largely unblemished prior record." Ibid. In particular, "[i]n matters involving discipline of police and corrections officers, public safety concerns may also bear upon the propriety of the dismissal sanction." Id. at 485.
In this case, appellant participated in a highly inappropriate relationship with an inmate over an extended period of time, and went to great lengths to conceal the relationship. Moreover, the record is far from clear that the relationship has ended. We conclude the penalty of dismissal is not disproportionate to the offense, nor is it shocking to the judicial conscience.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION
Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 105 S. Ct. 1487, 84 L. Ed. 2d 494 (1985) (holding that certain civil servants have a property interest in their employment, such that due process requires a pretermination hearing).