ERIC LANGE, CSC Docket No. 2021-1426

BackgroundThe appeal of Eric Lange, Correctional Police Lieutenant, Edna Mahan Correctional Facility, Department of Corrections, removal effective August 27, 2020, on charges, was heard by Administrative Law Judge Susan G. Olgiati, who rendered her initial decision on October 8, 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 replies, the Civil Service Commission (Commission), at its meeting on November 17, 2021, accepted and adopted the Findings of Fact and Conclusion as contained in the attached Administrative Law Judge’s initial decision. However, it did not adopt her 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 and other sufficient cause. The appointing authority asserted that the appellant posted inappropriate material on Facebook on multiple occasions. 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 the appellant acknowledged making numerous Facebook posts, including ones depicting violent images and symbols, as well as racially insensitive or derogatory images or narrative. The exact nature and subjects of the posts are discussed in detail in the initial decision. After finding that the posts did indeed support the charges levied against the appellant, the ALJ determined that the proper penalty, rather than the originally imposed removal, was a six-month suspension and further training. In essence, the ALJ found that the appellant’s 23-year career with no prior discipline and one commendation mitigated against imposing the removal sought by the appointing authority. Specifically, the ALJ stated:

As an initial matter, the fact that the respondent did not have a social media policy at the time the posts were made, does not wholly excuse appellant’s actions. The offensive, racially insensitive, derogatory, discriminatory, and violent nature of the images and content of the posts should have alerted appellant, a Correctional Police Lieutenant since 2018 and with over twenty-three years of employment experience with the DOC, that his posts/reposts had the potential to adversely affect morale and impede the operations of the DOC, and that they were violative of DOC rules and regulations and standards of conduct. Appellant’s conduct demonstrates a significant lack of judgment. However, based upon the totality of the evidence, including the fact the appellant’s Facebook page was private, that all but one of his posts were repost of existing images and content without any further comment, and that while he is identified as a Lieutenant and as law enforcement on his Facebook page, he did not identify himself as same in any of the posts themselves, and with due consideration to the concept of progressive discipline including appellant's lack of any discipline over the course of twenty-three years of employment with the DOC and his commendation for charitable work benefiting another DOC employee, I CONCLUDE that the original penalty of removal should be MODIFIED to a 180 day suspension without pay. I further CONCLUDE that as a condition of reinstatement, the appellant be required to submit to training including but not limited to diversity, inclusion, and equity training, anti-discrimination training, and other training which respondent deems to be 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. If further states that the inmate population is predominately African- American, and 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. Moreover, it argues that since the appellant posted or shared multiple offensive images and comments, his actions were egregious and that this matter is most similar to other recent Commission decisions where it did impose removal for similar offensive social media postings. See eg., In the Matter of Wayne Pearson (CSC, decided September 22, 2021) and In the Matter of Ernest Farley (CSC, decided October 6, 2021).

In his reply, the appellant states that based on his 23-year unblemished career the ALJ appropriately reduced the penalty. He further contends that the cases cited by the appointing authority in its support of the removal are factually different. Rather, it contends that the ALJ’s determination is more in line with a recent Commission decision where a superior officer with a long, mostly unblemished record had a removal modified to a 90 working day suspension. See e.g., In the Matter of Robert Curry (CSC, decided June 2, 2021).

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 regarding the charges. However, for the reasons set forth below, the Commission determines that the 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 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.Jj.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). Even when a Correctional Police Lieutenant 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 facihty 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, supra. In this regard, the Commission emphasizes that a Correctional Police Lieutenant is a higher-level 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.dJ.

Initially, the Commission notes that it has recently decided several cases regarding correctional custody employees where the issue was social media postings. In those decisions, the Commission has, based on the facts and circumstances presented, imposed penalties ranging from a 90 working day suspension to removal. Regardless, the Commission's determination of the proper penalty in any matter is necessarily guided by the facts of the case before it, and its prior determinations are not precedential, but may be used as guidance in arriving at the penalty in a current matter.

In this matter, the appellant posted or reposted many offensive and inflammatory postings. In this regard, while somewhat factually similar to the Farley, supra, matter, this matter is most factually similar to the recent case In the Matter of Samantha Chirichello (CSC, decided October 6, 2021). In that case, Chirichello posted or reposted several offensive and discriminatory items on Facebook. In that case, the ALJ sought to modify the removal to a six-month suspension. However, the Commission upheld the removal. The Commission stated in upholding the removal:

Clearly, the appellant’s behavior in making these multiple posts could adversely affect the more and safety of the facility and undermine the public respect in the services provided. Moreover, the appellant was a very short-term employee at the time of her removal, having only been employed for less than two years. Perhaps, had the appellant had a lengthy and relatively unblemished record of service, the matter of the ALJ’s recommended reduction in penalty could have been considered. See e.g., In the Matter of Douglas Burkholder (CSC, decided June 30, 2021). However, that is not the facts of this matter.

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.

In this matter, the appellant’s misconduct is quite similar to the misconduct in Chirichello, and even where different, is extremely egregious since he displayed numerous inappropriate posts spanning several categories. In fact, absent mitigating factors, the Commission would have no pause in imposing the removal. However, different from Chirichello, and more akin to Curry, supra, and Burkholder, supra, the appellant has a long history of service with no discipline as well as one commendation. Thus, the Commission weighed those mitigating factors against his egregious misconduct to decide whether the lesser penalty recommended by the ALJ was appropriate. In the regard, the Commission finds that, in weighing those factors, the appellant’s misconduct is not sufficiently mitigated by his record of service to support a reduction of the penalty. The Commission is extremely disturbed that the appellant, a high-level superior officer, would act in such an irresponsible and reprehensible manner on a medium that can be easily accessed by the public.' The fact that the appellant posted or shared numerous inappropriate

Administrative Law Judge1 The ALJ’s decision indicates that the appellant had approximately 750 Facebook friends who could access his postings and that several of the postings were “shared.” However, there is nothing in the decision indicating how many of his Facebook friends actually viewed the postings or how many other individuals viewed the postings that were ultimately shared. For example, there is posts is different from the misconduct engaged in by Curry, also a superior officer with a long, mostly unblemished record, who “liked” one offensive post. In that matter, the Commission found that Curry’s record of service did serve as sufficient mitigation to permit a reduction in penalty. Such is not the case here. Moreover, while Burkholder’s penalty was reduced based on his long record of mostly unblemished service, Burkholder, who was not a superior officer, made only one offensive post. 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 Eric Lange.

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