DARIUS COLLINS, CSC Docket No. 2019-3353

BackgroundThe appeal of Darius Collins, Senior Correctional Police Officer, Northern State Prison, Department of Corrections, removal effective May 8, 2019, on charges, was heard by Administrative Law Judge Ernest M. Bongiovanni (ALJ), who rendered his initial decision on January 17, 2020. Exceptions were filed on behalf of the appointing authority and a reply to exceptions was filed on behalf of the appellant.

AnalysisHaving considered the record and the ALJ’s initial decision, and having made an independent evaluation of the record, including a thorough review of the exceptions and reply, the Civil Service Commission (Commission), at its meeting on February 26, 2020, did not adopt the ALJ’s recommendation to modify the removal to a 120 working day suspension. Rather, the Commission ordered that the removal of the appellant be upheld.

DISCUSSION

The appellant was removed on May 8, 2019 on charges of conduct unbecoming a public employee, neglect of duty and other sufficient cause. Specifically, the appointing authority alleged that the appellant intentionally misstated material facts regarding his involvement in actions during an incident regarding a cell search, and that he left a gate unsecured in violation of policy. Upon the appellant’s appeal to the Commission, the matter was transmitted to the Office of the Administrative Law (OAL) for a hearing as a contested case.

Administrative Law JudgeIn his initial decision, the ALJ found that the appellant was the patroliing supervisor of the Administrative Close Supervision Unit, on the Second Wing, at Northern State Prison. Three eyewitness inmates accused the appellant of refusing to authorize showers for two other inmates, which caused these inmates to take unauthorized showers and, thereafter, refuse to reenter their cells afterwards since the property in their cells was damaged, trash the tier hallways and stairwells with garbage debris, and flood the stairwell with water while resisting a team of 10 officers performing a “two tier extraction” to get the two inmates under control. While resisting, the two inmates were severely injured. Regarding the charge that the appellant left a gate open, the appellant admitted during the investigation that he left the gate open. Based on the evidence presented, the ALJ did not sustain the charges of conduct unbecoming a public employee against the appellant as he did not find that there was credible evidence that the appellant’s actions ignited the cell incident, nor did he find that the appellant made any misstatement of fact about the incident or his conduct during it. However, the ALJ sustained the charge of neglect of duty against the appellant as he admitted that it was his duty to see that the gate that blocked access between the tiers was secured and he failed to do so. Additionally, the appellant’s inaction caused a team of 10 men to be used for the “double tier extraction” to control the inmates and the area of conflict was more likely to result in harm to the guards and prisoners because they were engaged on stai's in addition to the level floors. Moreover, the appellant offered no excuse for his negligence. Concerning the penalty, the ALJ indicated, given the heightened security at that part of the prison, the appellant’s infraction in leaving the gate open warranted a heavy penalty. However, the ALJ modified the penalty from removal to a 120 working day suspension based on the appellant not having any prior major disciplines in the less than three years that he worked at Northern State Prison.

AnalysisIn the appointing authority’s exceptions, it asserts that the ALd’s factual findings were incorrect as its investigation determined that it was the appellant who destroyed the two inmates’ property in their cells, which caused them to be enraged and triggered the series of events that unfolded. Further, the ALJ incorrectly disregarded the appellant’s failure to testify or present any witnesses which should have caused an adverse inference to be made against him. Moreover, the ALJ incorrectly considered an unsworn statement of a witness on behalf of the appellant who was available to testify and whom the appellant declined to call. Additionally, the ALJ incorrectly faulted the appointing authority for not presenting the criminal histories of the eyewitness inmates as this information was irrelevant as to whether the investigation was reliable, and the investigators’ testimonies were credible. Also, the ALJ faulted the appointing authority for not presenting evidence that the appellant had the character for such an offense as it asserts that such evidence was inadmissible and irrelevant as the investigators testified at length to their findings. Finally, the appointing authority argues that the appellant’s actions were so egregious that the only appropriate penalty is removal regardless of his lack of prior disciplinary history.

In the appellant’s reply to exceptions, he presents that there is no definitive proof that he committed any improper acts other than leaving the gate open. The investigator admitted during cross examination that his information came from the testimony of select inmates. This investigator admitted during cross examination that convicted felons are less likely to be truthful when questioned, and have been known to cause problems, fight and destroy property to get relocated to a different facility. Further, while the appellant was not the only officer working in the unit during the time of the incident, no other officer testified to witnessing the appellant performing the alleged acts nor was any other officer charged with giving a false statement. Additionally, the Local Control Point Officer, who was the only person who could give the appellant access to any cell in this unit, was not questioned. Moreover, the appellant argues that he had no obligation to testify on his own behalf, and there was no need, as it was the appointing authority's obligation to prove the allegations that the appellant committed improper acts other than leaving the gate open, which it failed to do. Finally, although he asserts that the 120 working day suspension for leaving the gate open is extreme, especially since he does not have any other prior discipline, he accepts the ALJ’s recommendation.

Upon its de novo review of the record, the Commission agrees with the ALJ regarding the charges. In this regard, the Commission acknowledges that the ALJ, who has the benefit of hearing and seeing the witnesses, is generally in a better position to determine the credibility and veracity of the witnesses. See Matter of J.W.D., 149 NJ. 108 (1997). “[T]rial courts’ credibility findings . .. are often influenced by matters such as observations of the character and demeanor of the witnesses and common human experience that are not transmitted by the record.” See also, In re Taylor, 158 N.J. 644 (1999) (quoting State v. Locurto, 157 N.J. 463, 474 (1999)). Additionally, such credibility findings need not be explicitly enunciated if the record as a whole makes the findings clear. Id. at 659 (citing Locurto, supra). The Commission appropriately gives due deference to such determinations. However, in its de novo review of the record, the Commission has the authority to reverse or modify an ALJ’s decision if it is not supported by sufficient credible evidence or was otherwise arbitrary. See N.J.S.A. 52:14B-10(c); Cavalieri v. Public Employees Retirement System, 368 N.J. Super. 527 (App. Div. 2004).

Administrative Law JudgeIn this matter, the ALJ correctly did not sustain the charge of conduct unbecoming as he did not find the evidence proffered regarding the eyewitness inmates credible. In this regard, the appointing authority did not present the inmates to testify nor did it have any of their statements entered into evidence. No reason was given for the appointing authority’s failure to produce any witness inmate testimony either in person or via some other media. Further, the ALJ found that the inmate witnesses were most likely told the story of the events by the offending inmates and, at least with this possibility, the appointing authority should have produced full-video recorded statements of the witnesses. Additionally, while in administrative and civil proceedings, it is permissible for the trier of fact to draw adverse inferences from a party's plea of self-incrimination, the inference may be drawn only if there is other evidence supporting the adverse finding. See State Department of Law and Public Safety v. Merlino, 216 N.J. Super. 579 (App. Div. 1987), affa, 109 N.J. 134 (1988). Further, the appointing authority made no effort to compel the appellant to testify or even produce his video-recorded interview. Therefore, it was appropriate for the ALJ not to draw an adverse inference against the appellant as there was no other credible evidence supporting the adverse finding. Moreover, under these circumstances, the record does not support a finding that the ALJ’s findings were arbitrary or not supported by the record, Concerning the neglect of duty charge, as the appellant acknowledged that it was his duty to secure the gates and he failed to do so, the ALJ correctly sustained this charge.

AnalysisRegarding the penalty, the Commission disagrees with the ALJ’s reduction. In determining the proper penalty, the Commission’s review is de novo. In addition to its consideration of the seriousness of the underlying incident in determining the proper penalty, the Commission also utilizes, when appropriate, the concept of progressive discipline. West New York v. Bock, 38 N.J. 500 (1962). In assessing the penalty in relationship to the employee’s conduct, it is important to emphasize that the nature of the offense must be balanced against mitigating circumstances, including any prior disciplinary history. However, it is well established that where the underlying conduct is of an egregious nature, the imposition of a penalty up to and including removal is appropriate, regardless of an individual's disciplinary history. See Henry v. Rahway State Prison, 81 N.J. 571 (1980). It is settled that the theory of progressive discipline is not a “fixed and immutable rule to be followed without question.” Rather, it is recognized that some disciplinary infractions are so serious that removal is appropriate notwithstanding a largely unblemished prior record. See Carter v. Bordentown, 191 N.J. 474 (2007). Moreover, even when a Senior Correctional Police Officer does not possess a prior disciplinary record after many unblemished years of employment, the seriousness of an offense occurring in the environment of a correctional facility may, nevertheless warrant the penalty of removal where it compromises the safety and security of the institution, or has the potential to subvert prison order and discipline. See Henry v. Rahway State Prison, supra, 81 N.J. at 579-80. In this regard, the Commission emphasizes that a Senior Correctional Police Officer is a law enforcement officer who, by the very nature of his job duties, is held to a higher standard of conduct than other public employees. See Moorestown v. Armstrong, 89 N.J. Super. 560 (App. Div. 1965), cert. denied, 47 N.J. 80 (1966). See also, In re Phillips, 117 N.J. 567 (1990). Moreover, the Commission is also mindful that the appraisal of the seriousness of an offense and degree which such offenses subvert discipline are matters peculiarly within the expertise of the corrections officials. The appraisal is subject to de novo review by the Commission, but that appraisal should be given significant weight. Bowden v.

Bayside State Prison, 268 N.J. Super. 301, 306 (App. Div. 1993), cert. denied, 135 N.J. 469 (1994).

In this case, leaving a gate open is, essentially, failing to perform the fundamental duty of a Senior Correctional Police Officer and the appellant’s failure to perform such duty demonstrates egregious neglect. Such an infraction compromised the safety and security of the facility and all of the employees and inmates therein. Additionally, the appellant neglected this duty in the Administrative Close Supervision Unit which makes it even more serious. Further, the appellant provided no explanation regarding this egregious lapse of duty. Finally, while the appellant did not have prior discipline, based on the egregious nature of the misconduct and the fact that appellant was a short-term employee as he had been employed less than three years at the time of the incident, removal from employment is warranted.

ORDER

The Civil Service Commission finds that the action of the appointing authority in imposing a removal was justified. Therefore, the Commission affirms that action and dismisses the appeal of Darius Collins.

ClosingThis is the final administrative determination in this matter. Any further review should be pursued in a judicial forum.