Larrick McElroy, CSC Docket No. 2020-2486

BackgroundThe appeal of Larrick McElroy, Senior Correctional Police Officer, Northern State Prison, Department of Corrections, removal, effective April 1, 2020, on charges, was heard by Administrative Law Judge Elissa Mizzone Testa (ALJ), who rendered her initial decision on November 20, 2023. Exceptions were filed on behalf of both parties 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 January 17, 2024 adopted the ALJ’s Findings of Facts and Conclusions of Law. However, it did not adopt her recommendation to modify the removal to a six-month suspension. Rather, the Commission imposed a two-month suspension.

Upon its de novo review of the ALJ’s thorough and well-reasoned initial decision as well as the entire record, including the exceptions and replies filed by the parties, which do not require extensive comment, the Commission agrees with the ALJ’s determinations regarding the charges, where she recommended upholding the allegations regarding the appellant improperly allowing an inmate into his area without authorization, but dismissing the charges of sexual contact. This matter turns of the credibility determinations made by the ALJ regarding the testimony of the witnesses. In this regard, the ALJ specifically found the testimony of the inmate who made the allegations against the appellant not credible. In her detailed credibility determinations, the ALJ found:

According to D.W., a sexual assault occurred in the area where McElroy works. To believe his allegation, one must almost suspend belief regarding the brief period in which multiple actions allegedly occurred.

Here, by his own admission, D.W. lied repeatedly before finally settling on the story in his third interview. He not only denied that the event occurred when first interviewed, he admitted he was high on a substance known as K-2 when he made it, blaming his intoxication on McElroy’s pill, which D.W. alleges was given to him by McElroy, rather than the drugs found in his cell. McElroy testified that this pill is for his cholesterol. The latter conclusion bears the ring of truth, since the white powdery substance was found in his cell just prior to making the allegation. The next day, he was moved to another wing of the prison, presumably because of the discovery of drugs in his cell the day before. He admits that during the move to an undesirable housing location, he, complained to Sergeant Hernandez about the alleged sexual encounter. But the second SID interview ended similarly, with a refusal to cooperate at all or support the allegation that he had made to Sergeant Hernandez. And, even when he was interviewed the third time - after several officers wrote reports confirming that inmate D.W. “back kicked” and injured one of them (J-21) and then “went limp” to avoid cooperating in the transport, he refused to cooperate with the only corroborative test which would have demonstrated whether there was any validity to the sexual allegation. That refusal to cooperate with a SANE test, when one claims to be a victim of a sexual assault, is telling.

D.W. also admitted to making false allegations in the past. Equally important, the inmate was no stranger to making false charges. He admitted that when he was incarcerated at Southern State Prison, prior to his transfer to Northern, he was engaged in a similar claim regarding an inmate with whom he was double bunked. Southern State found the PREA allegation to be false, subjected D.W. to significant punishment, and concluded that the claim was lodged for an ulterior motive. This is very similar to the current situation. To accept the testimony of D.W. would mean that McElroy is lying; the SID investigators are lying; Lieutenant Russo is lying (J-34); four officers who transported the inmate when he assaulted them are all lying (J-23; J-24).

D.W. demonstrated through his testimony and conduct that he had reason to lie. By his own admission, he was looking to avoid the substantial penalties associated with drugs being found in his cell. He was concerned as well obviously that he was being charged with assault upon officers when he was being transferred from one cell block to another. And he has a history of making similar false PREA claims in other settings.

McElroy testified forthrightly and vehemently denied that the alleged sexual act occurred. He did not deny speaking with the inmate about porter responsibilities and noted that he often has four or five inmates working in the area with him when they are cleaning. He felt no concern or urgency in talking to D.W. about his request for employment and did not feel threatened in any way. He did not feel the need to call a supervisor because he felt the situation was totally controlled, and he was speaking with D.W. in a manner no different than

Administrative Law JudgeD.W. would be talking with Officer Peterman on the medical line. He did not deny that he had D.W. in an unauthorized area and that he should have advised a supervisor of same, and therefore violated safety and security protocol. Thus, I FIND that the evidence necessary to sustain such a serious allegation against a veteran officer with nothing in his history to indicate such conduct must be far greater than what the

AnalysisDOC has produced. The incident was not captured on video, there is no one who witnessed the incident and it is a case of “he said she said”.

(Emphasis added.) In addition, by his own admission, D.W. recanted his story that the incident even happened on three (3) separate occasions.

Further, as the trier of fact, I must also consider D.W.’s interest in the outcome, motive or bias. D.W. remains committed to justifying his past by continuing to allege a story he told, and repudiated, on three separate occasions. His admitted efforts to sell a book about the experience are the best evidence of his reasons for continuing this false narrative.

Administrative Law JudgeTherefore, in evaluating the testimony and evidence, I FIND all witnesses, except D.W., to be credible witnesses. I CONCLUDE that there has not been sufficient evidence presented to conclude a sexual incident occurred.

AnalysisThe 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.eJ. 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 this matter, the exceptions filed 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. As such, the Commission has no reason to question those determinations, or the findings and conclusions made therefrom.

Similar to its review of the underlying charges, the Commission's review of the penalty 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.d.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.-/. 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). Even when a law enforcement officer does not possess a prior disciplinary record after many unblemished years of employment, the seriousness of an offense may nevertheless warrant the penalty of removal where it is likely to undermine the public trust. In this regard, the Commission emphasizes that a law enforcement officer, such as a Senior Correctional Police Officer, is held to a higher standard than a civilian public employee. See Moorestown vu. 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 matter, the Commission agrees with the ALJ’s recommendation to modify the removal to a lesser penalty. However, it disagrees that a six-month suspension is warranted. The upheld misconduct, which was admitted to by the appellant, is clearly serious and could serve to undermine or compromise the safety and security of the facility. In fact, had the appellant not violated policy by permitting the inmate into his area, he would likely not have been subject to the other allegations in this matter. This illustrates how important it is for officers to strictly adhere to the policies and procedures in a correctional setting and the ramifications that can occur when such policies are ignored. The Commission cannot condone such actions. Nevertheless, the appellant is a long-term employee, and the infraction, in and of itself, is not so serious as to support the imposition of a six-month suspension, which is the highest suspension permitted. As such, the Commission finds that a two-month suspension will suffice to send a clear message to the appellant as to the inappropriateness of his actions and signify that any future misconduct will likely result in more severe penalties up to or including removal from employment.!

In its exceptions, the appointing authority argues that back pay should be reduced for the period from when the record closed to the issuance of the initial decision since there was a long, unexplained delay by the ALJ and extensions for said

' The Commission notes that the penalty imposed is appropriate based on the misconduct and is not based on a progressive discipline analysis. In that regard, the appellant’s disciplinary history in the record shows prior major discipline. However, the last such action was in 2010.

issuance were not promptly secured. The Commission rejects this contention. While the record does evidence such a delay, the remedy is not to reward the appointing authority and penalize the appellant where the delay cannot be attributed to him.

Since the removal has been modified, the appellant is entitled to be reinstated. Normally, the appellant would also be entitled to mitigated back pay, benefits, and seniority pursuant to N.J.A.C. 4A:2-2.10 from two months after the first date of separation without pay until the date of actual reinstatement. However, there is information in the record indicating that the appellant was reinstated to pay status on April 2, 2020, pursuant to N.Jd.S.A. 40A:14-201. This presumes that he was previously immediately suspended without pay for 180 days based on this incident. Assuming the accuracy of this information, the appellant, therefore, will have already received any pay that he would be entitled to in this matter from April 2, 2020, until his reinstatement and should also receive any concomitant seniority and benefits for that time period. See also, N.J.A.C. 4A:2-2.10(d)5. Per N.J.A.C. 4A:2-2.10, the appellant is also entitled to mitigated back pay, benefits, and seniority pursuant from two months after the first date of separation without pay until April 2, 2020.

However, the appellant is not entitled to counsel fees. NiedJ.A.C. 4A:2-2.12(a) provides for the award of counsel fees only where an employee has prevailed on all or substantially all of the primary issues in an appeal of a major disciplinary action. The primary issue in the disciplinary appeal is the merits of the charges. See Johnny Walcott v. City of Plainfield, 282 N.J. Super. 121,128 (App. Div. 1995): In the Matter of Robert Dean (MSB, decided January 12, 1993); In the Matter of Ralph Cozzino (MSB, decided September 21, 1989). In the case at hand, although the penalty was modified by the Commission, charges were sustained, and major discipline was imposed. Consequently, as appellant has failed to meet the standard set forth at N.J.A.C. 4A:2-2.12, counsel fees must be denied.

As the appellant is entitled to back pay per above from two months after the first date of separation without pay until April 2, 2020, pursuant to N.J.A.C. 4A:2- 2.10, per the Appellate Division’s decision, Dolores Phillips v. Department of Corrections, Docket No. A-5581-01T2F (App. Div. Feb. 26, 2003), the Commission's decision will not become final until any outstanding issues concerning back pay are finally resolved. In the interim, the appointing authority is required to immediately reinstate the appellant to his permanent position.

ORDER

The Civil Service Commission finds that the action of the appointing authority in removing the appellant was not justified. The Commission therefore modifies that action to a two-month suspension. The Commission further orders that the appellant be immediately reinstated to his permanent position. As the appellant has already served the two-month suspension without pay and has received pay since April 2, 2020, pursuant to N.J.S.A. 40A:14-201, no back pay is awarded from April 2, 2020, to his actual reinstatement. See also, N.J.A.C. 4A:2-2.10(d)5. The Commission further orders that, pursuant to N.J.A.C. 4A:2-2.10, the appellant is entitled to back pay, benefits, and seniority from two months after the first date of separation without pay to April 2, 2020, as well as benefits and seniority from that date to his actual reinstatement. The amount of back pay awarded is to be reduced and mitigated as provided for in N.dA.C. 4A4:2-2.10. Proof of income earned, and an affidavit of mitigation shall be submitted by or on behalf of the appellant to the appointing authority within 30 days of issuance of this decision. Pursuant to N.J.A.C, 4A:2-2.10, the parties shall make a good faith effort to resolve any dispute as to the amount of back pay. However, under no circumstances should the appellant’s reinstatement be delayed pending resolution of any potential back pay dispute.

Counsel fees are denied pursuant to N.J.A.C. 4A:2-2.12.

The parties must inform the Commission, in writing, if there is any dispute as to back pay within 60 days of issuance of this decision. In the absence of such notice, the Commission will assume that all outstanding issues have been amicably resolved by the parties and this decision shall become a final administrative determination pursuant to R. 2:2-3(a)(2). After such time, any further review of this matter shall be pursued in the Superior Court of New Jersey, Appellate Division.