Wayne Pearson ; Bayside State Prison, CSC Docket No. 2021-1250

BW/ACM

BackgroundThe appeal of Wayne Pearson, Senior Correctional Police Officer, Bayside State Prison, Department of Corrections, removal effective February 24, 2021, on charges, was heard by Administrative Law Judge Catherine A. Tuohy, who rendered her initial decision on August 9, 2021. 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 Administrative Law Judge'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 September 22, 2021 did not adopt the ALJ's recommendation to modify the removal to a six-month suspension. Rather, the Commission upheld the removal.

DISCUSSION

The appellant was removed on charges of conduct unbecoming a public employee, other sufficient cause and violation of the New Jersey Department of Corrections Policy Proh:biting Discrimination, Harassment or Hostile Environment in the Workplace. The appointing authority asserted that the appellant made a post on Facebook that depicted inappropriate racial content. Specifically, the appellant posted on Facebook a scene depicting an African American male on the gallows surrounded by ‘Caucasian males and a crowd of onlookers with the written comment. “We need to bring this back.” Upon the appellant’s appeal, the matter was transmitted to the Office of Administrative Law (OAL) for a hearing as a contested case.

Administrative Law JudgeIn her initial decision, the ALJ found that on June 22, 2020, the appellant, off duty, posted on his personal Facebook page a scene depicting an African American male on the gallows surrounded by Caucasian males and a crowd of onlookers, and added the typed comment “We need to bring this back.” The appellant’s Facebook page was set on “Public” and he listed his occupation with South Woods State Prison as “Animal Carevaker at Magic Forest.” Robert Curry, a Correctional Police Sergeant who worked at Bayside State Prison “liked” the appellant’s post and a civilian member of tke public saw the post and was so offended that he communicated with Cu:ry and called him a racist for liking the post and that he had zero business guarding bleck inmates. The appellant removed the post after approximately two days and he acknowledged that his post and his description of his job as animal caretaker could cause the impression in the minds of the public, of inmates or staff members that le harbors racist beliefs.

The ALJ indicated that the appellant’s public Facebook posting is an electronic communication that displayed and distributed racially derogatory and demeaning language and images in the workplace. She emphasized that even if it was posted while he was off duty using his personal computer in his home, the very nature of the communication publishes the image and comments for all the world to see, anywhere and everywhere. Moreover, even if he did not intend to convey racially derogatory and demzaning messages and comments, the appellant acknowledged that his lack of explanation or context as to why he made the posting could tend to convey to the viewers that he held racist beliefs. Accordingly, the ALJ concluded that the appointing authority sustained the charges. However, given that he had never been charged with or been the subject of any prior complaints regarding discrimination, the eppointing authority's lack of a social media policy, and the remoteness in :ime of his prior major disciplinary actions, the ALJ found that a six-month suspension was appropriate.

AnalysisIn its exceptions, the appointing authority states that the appellant’s actions in this matter were so egregious that removal is the only appropriate penalty. In this regard, it maintains that significant deference should be given to correctional officials in matters of determining an appropriate penalty for disciplinary infractions. In this case, as the inmate population is predominately African- American, if correction officers or other staff are perceived as biased against one race or another, it will compromise the safety and security for everyone involved. Of concern would be a potential demonstration or rebellion by inmates against staff, which would endanger everyone in the facility. The appointing authority emphasizes the appellaat’s actions occurred in the wake of George Floyd’s murder by a police office and the resulting social unrest that was occurring throughout the country at the time. Further, the appointing authority states that the facts of the appellant’s case are diferent taan other matters where the Commission modified the removals of emplovees that made comments on Facebook. Specifically, the appellant posted the offensive image, not merely “liked” it, and he described his position with South Woods Stzte Prison as “Animal Caretaker at Magic Forest.” Further, it argues that lhe had ¢. prior six-month suspension for improperly securing a weapon.

In response, the appellant states that it was proper for the ALJ not to consider his prior major discipline as it did not occur within a reasonable period prior to the offense beirig considered. He also states that the mitigating factors in his case were addressec\ meticulously by the ALJ that resulted in her finding that removal was not appropriate. Specifically, the fact that he had no major discipline since March 17, 2007, that he never was charged with or been the subject of a discrimination complaint, and the appointing authority’s lack of a social media policy supported the reduction in penalty. Additionally, the appellant argues that the ALJ’s recommendation is consistent with the Commission’s prior decisions involving disciplinary actions involving social media.

Upon an independent review of the record, the Commission agrees with the Findings of Fact of the ALJ and concludes that the appointing authority has met its burden of proof in this matter. However, for the reasons set forth below, the Commission determines that th2 penalty of removal should be upheld.

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 determining the propr.ety of the penalty, several factors must be considered, including the nature of che appellant’s offense, the concept of progressive discipline, and the employee's prior recorc.. George v. North Princeton Developmental Center, 96 NJ.A.R. 2d (CSV) 463. However, it is well established that where the underlying conduct is o{' an egregious nature, the imposition of a penalty up to and including removai is appropriate, regardless of an individual's disciplinary history. See Henry v. Rahway Siate 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.. 474 (2007).

In this case, removal is the proper penalty. In this regard, it is noted that in In the Matter of Tammy Herri.ann, 192 N.dJ. 19 (2007), the State Supreme Court upheld the removal of Herrmann, a Family Service Specialist Trainee with the Department of Youth and Famly Services, who, during an investigation of alleged child abuse, flicked a lighted cigarette lighter in front of a special needs child. Herrmann had been einployed for approximately six months at the time of the incident and had no prior discipline but her conduct “divested her of the trust necessary for her position” and “progressive discipline [was not] appropriate in this matter.” Id. at 38. Evea when a 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 penaity of removal where it compromises the safety and security of the institution, or has the potential to subvert prison order and discipline. See Henry, supra. In this regard, tte Commission emphasizes that a Senior Correctional Police Officer is a law enforcerient officer who, by the very nature of his job duties, is held to a higher standard o? conduct than other public employees. See Moorestown v. Armsirong, 89 N.J. Super. 560 (App. Div. 1965), cert. denied, 47 N.J.

As noted in the appointing authority’s exceptions, the appellant did not merely “like” the offens:ve post Rather, on June 22, 2020, not even a month after the George Floyd murder by a police officer, the appellant posted! on Facebook a scene depicting an African American male on the gallows surrounded by Caucasian males and a crowd of o.lookers: with the written comment, “We need to bring this back.” As noted by the ALJ, given the climate that existed at the time he made his Facebook postings, it is strains credulity to believe his explanation that he was advocating for the return of public executions of criminals in general, and not the lawless lynching of African Arnericans that previously occurred in our country’s history. He also indicated on Facebook that his occupation was “Animal Caretaker at Magic Forest.” Therefore, the Commission agrees with the appointing authority that the appellant’s actions are sufficiently egregious to warrant his removal. Moreover, the appellant's disciplinary history, while remote in time, is significant, as it contains a six-mon:h suspension — the highest penalty an appointing authority can impose short of removal. Accordingly, the Commission finds that the penalty imposed by the appointing authority was neither unduly harsh nor disproportionate to the offense and should be upheld.

ORDER

The Civil Service Commission finds that the action of the appointing authority in imposing the removal was justified. Therefore, the Commission dismisses the appeal of Wayne Pearson.

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

1 The fact that the appellant was the actual poster of the material is an important fact. In this regard, his affirmative action was the impetus for anything that may have followed. Essentially, such an action is inherently more egregious than an individual viewing and “liking” such material, as was the case in In the Matter of Robert Curry (CSC, dev:ided June 2, 2021).