Michael Grossman, CSC Docket No. 2020-2238

BackgroundThe appeal of Michael Grossman, Correctional Police Sergeant, Southern State Correctional Facility, Department of Corrections, removal, effective February 18, 2020, on charges was heard by Administrative Law Judge Catherine A. Tuohy (ALJ), who rendered her initial decision on April 20, 2024. Exceptions were filed on behalf of the appellant and a reply was filed on behalf of the appointing authority.

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 May 22, 2024, adopted the ALJ’s Findings of Fact and Conclusions and her recommendation to uphold the removal.

Upon its de novo review of the ALJ’s thorough and well-reasoned initial decision as well as the entire record, the Commission agrees with the ALJ’s determinations regarding the charges, which were substantially based on her assessment of the credibility of the testimony of the witnesses. 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 N.J. 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 u. Public Employees Retirement System, 368 N.J. Super. 527 (App. Div. 2004). In the instant matter, the exceptions filed by the appellant are not persuasive in demonstrating that the ALJ’s credibility determinations, or her findings and conclusions based on those determinations, were arbitrary, capricious or unreasonable. The ALJ found that “i[t] [was] unlikely that everyone else lied aside from Sgt. Grossman, given his interest and motivation in saving his career.” The ALJ rejected the appellant’s testimony:

... as inherently incredible because it 1s inconsistent and overborne by the testimony of W.H. and Senior Correction[al] Police Officer (SCPO)

[Gloria] Melendez as well as the other evidence in the case, including the investigation report, statements of [former SCPO Robert] McCauley and inmate J.S., and the video surveillance. The consistent theme throughout all of the evidence was that they found three bottles of suspected hooch, Sgt. Grossman made W.H. drink it, he drank it, and as a result W.H. ended up vomiting. Sgt. Grossman also made W.H. do jumping jacks.

While the appellant in this case attempts to rebut the ALJ’s credibility findings, his challenge is unsuccessful. Particularly, in his exceptions, the appellant maintains that he did not order the inmate to drink the liquid but that the inmate chose to drink it, nor did he order the inmate to do any physical activity in the yard. The appellant points to the inmate’s testimony that he was not ordered to drink the liquid. Even taking this into consideration, the appellant fails to comprehend that his words to the inmate were essentially an order, since, as noted by the ALJ, the inmate testified that he understood that he would be charged if he did not “get rid of the liquid.” The ALJ found that:

[a]lthough inmate W.H. indicated in his statements and his testimony that Sgt. Grossman did not specifically ‘order’ him to drink the bottles, it was implied that if he did not do so, there would be repercussions.

This testimony is quite credible given the balance of power between a corrections officer and an inmate, with Sgt. Grossman as the supervisor/authority figure wielding power over the inmates who are instructed to obey corrections officers. SCPO Melendez’[s] very credible testimony was that Grossman told W.H. if it was juice in the three containers as W.H. said it was, then Grossman wanted W.H. to drink it to prove it. When a corrections officer tells an inmate to do something, that is an order.

Moreover, there was sufficient credible evidence that the appellant made the inmate do jumping jacks instead of sending him to the infirmary. Therefore, upon its review, the Commission finds nothing in the record or the appellant’s exceptions to question the ALJ’s credibility determinations or the findings and conclusions made therefrom.

Regarding the penalty, similar to its assessment of the charges, 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 determining the propriety of the penalty, several factors must be considered, including the nature of the appellant’s offense, the concept of progressive discipline, and the employee’s prior record. George v. North Princeton Developmental Center, 96 N.J.A.R. 2d (CSV) 463. 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 correction officers do 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 Siate Prison, supra, 81 N.eJ. at 579- 80. The conduct is even more egregious when a supervisory law enforcement officer commits such an offense. In this regard, the Commission emphasizes that Correctional Police Sergeants are supervisory law enforcement officers who, by the very nature of their job duties, are 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).

In this case, regardless of his lack of a major disciplinary history, the appellant’s actions fall well short of what is expected of a Correctional Police Sergeant. His misconduct compromised safety and security; it subverted prison order and discipline; and it was undoubtedly serious. The appellant’s continued employment would undermine the public trust. The Commission is also mindful that:

The appraisal of the seriousness of [the appellant’s] offenses 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.eJ. 469 (1994).

Therefore, contrary to the appellant’s exceptions, the Commission finds the penalty of removal neither disproportionate to the offenses nor shocking to the conscious.

ORDER

The Civil Service Commission finds that the action of the appointing authority in removing the appellant was justified. The Commission therefore upholds that action and dismisses the appeal of Michael Grossman.

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