Robert Curry, CSC Docket No. 2021-326

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BackgroundThe appeal of Robert Curry, a Correctional Police Sergeant with Bayside State Prison, Department of Corrections, of his removal effective September 3, 2020, on charges, was heard by Administrative Law Judge Dorothy Incarvito- Garrabrant (ALJ), who rendered her initial decision on April 26, 2021. Exceptions were filed on behalf of the appellant, and a reply to exceptions 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, the Civil Service Commission (Commission), at its meeting on June 2, 2021, accepted and adopted the Findings of Fact as contained in the attached ALJ’s initial decision. However, the Commission did not adopt the recommendation to uphold the removal. Rather, the Commission modified the penalty to a 90-working day suspension.

DISCUSSION

The appellant was removed, effective September 3, 2020, on charges of conduct unbecoming a public employee, other sufficient cause, violation of the State Policy Prohibiting Discrimination in the Workplace, and a violation of a rule, regulation, policy, procedure, order or administrative decision. Specifically, the appointing authority alleged that the appellant “liked” a Facebook post from another employee that depicted inappropriate racial content. Upon the appeliant’s appeal, the matter was transmitted to the Office of Administrative Law for a hearing as a contested case.

Administrative Law JudgeIn her initial decision, the ALJ set forth that on June 22, 2020, while not physically in his workplace at Bayside State Prison, the appellant saw a link to a 1936 image in his Facebook timeline, of an African-American man being publicly hung at the gallows surrounded by Caucasian law enforcement and civilian males. The image was posted on the Facebook page of a Senior Correctional Police Officer who works at South Woods State Prison. The appellant clicked on the image, which was a hyperlink to a webpage, and he educated himself in depth about the historical significance of the event. After educating himself in depth, the appellant reflected on the image’s impact and significance in the climate and environment of 2020 society. He associated the media's efforts to change law enforcement actions and policies in 1936 to the media’s efforts in 2020 to reform law enforcement and the justice system. However, the appellant did not provide any explanatory comment on the post for his “like.” The ALJ noted that, despite this knowledge, and with his 19 years of experience in the Department of Corrections, after reviewing the image, with its complex, sensitive, and emotionally charged history, the appellant hit the “like” button and was published on the Senior Correctional Police Officer's post. Although the Senior Correctional Police Officer commented in his post that “[w]e need to bring this back,” it could not be determined that the appellant liked the post before or after the comment was made.

The ALJ concluded that the appellant’s act of “liking” the image alone, without reasonable explanation, and publishing his “like” knowing that it would be made public via the timelines of his Facebook friends with public settings, was sufficiently egregious to serve as a basis on which to pursue disciplinary charges. The ALJ noted that two members of the public saw that the appellant “liked” the image and the Senior Correctional Police Officer's post. In this regard, the ALJ determined at least one member of the public clearly associated the appellant’s “like” with his position as a Correctional Police Officer and called into question the appellant’s ability to fulfill his job responsibilities fairly and without bias. Moreover, the appellant acknowledged that inmates’ friends and relatives could have seen the “like” and conveyed that information to inmates, thus bringing the impact of the post into the inmate population. Additionally, the ALJ found that the appellant did not report the Senior Correctional Police Officer's post, as he is required, and that his lack of reporting further enhanced and defined his “like” of the image’s content. Therefore, as the appellant never disavowed his post or the comment until he was confronted with a Special Investigations Division (SID) interview, the ALJ determined that the appellant acted in a discriminatory manner.

AnalysisAlthough the appellant argued that his liking the post was constitutionally protected speech, the ALJ noted that law enforcement agencies have the ability to regulate speech under certain circumstances. Therefore, even when it occurs outside of the workplace, Correctional Police Officers may be disciplined for their spoken words should those words be egregious, offensive, violative of a policy, or bring disrespect to the speaker or the department. The ALJ found the appellant’s argument that a “Pickering/Garcetti” analysis was required to evaluate his speech and guarantee his First Amendment Constitutional protections was unpersuasive. See Pickering v. Board of Education 391 U.S. 563 (1968); Garcetti v. Ceballos 547 U.S. 410 (2006). In that regard, the ALJ determined that the appointing authority’s interest in maintaining a professional, nonbiased, and fair relationship with the inmates trusted to its care outweighs the appellant’s right to support, like, and perpetuate discriminatory content and prejudice. Accordingly, the ALJ sustained all of the charges against the appellant. While the appellant had an insignificant disciplinary history during his 19 years of employment with the appointing authority and multiple witnesses attested to his character, the ALJ determined that based on the egregiousness and severity of the sustained charges, the appellant’s removal should be upheld.

In his exceptions, the appellant maintains that the ALJ's findings were not supported by sufficient, competent, and credible evidence in the record. In this regard, despite the appellant’s testimony that he was a “history buff’ who educated himself about various domestic and international histories, the ALJ indicated that his testimony “lacked sincerity” and disabled his credibility. He also states that SID did not undertake any forensic analysis of the Facebook post at all, but the ALJ afforded the testimony proffered in this regard substantial weight. However, there was no demonstrable proof as to when the appellant “liked” the post in relation to the Senior Correctional Police Officer’s comment “[w]e need to bring this back,” The appellant also notes that he was unaware of any Equal Employment Division (EED) investigation and he was never interviewed by EED. Significantly, the appellant states that the ALJ failed to offer the same weight to the testimony submitted by the appellant’s five witnesses regarding the quality of his employment over his 19-year career and his service to the community.

In response, the appointing authority submits that there was sufficient evidence to support the ALJ’s determination. It also maintains that the ALJ’s credibility determinations were correct and that the penalty of removal is not excessive.

Upon its de novo 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 the appellant’s removal should be modified to a 90- working day suspension.

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 In re Taylor, 158 N.J. 644 (1999) (quoting State v. Locurto, 157 Nid. 463, 474 (1999)). Additionally, such credibility findings need not be explicitly enunciated if the record as a whole makes the findings clear. Jd. 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 the 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 case, the ALJ specifically found that the appellant's pride in his interest in history and his desire to educate himself about it lacked sincerity, as he did not appear to appreciate the content, feelings, emotions, and concerns that would be evoked by “liking” the image and its content without explanation, with or without the inclusion of the Senior Correctional Police Officer’s comment. She further explained that the appellant’s lack of understanding about and appreciation of the painful feeling embodied in and conveyed by the shocking image regarding social injustice and discrimination were inconsistent with the thoughtful, inquisitive, and considerate persona of an amateur historian that he attempted to portray of himself. Further, the ALJ did in fact accept the brief statements made by the appellant's character witnesses to be their general impressions about the appellant in response to the limited questions asked of them. However, these witnesses did not testify specifically regarding the appellant’s “like” of the image or about his interest in history. Therefore, the Commission finds that the appellant has not presented any evidence to disturb the ALJ’s credibility determinations or her Findings of Fact. Accordingly, the Commission upholds all of the charges against the appellant.

AnalysisIn determining the proper penalty, the Commission’s review is also 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 relation 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).

In this case, the appellant’s conduct displayed a significant lack of judgment when he “liked” a posted discriminatory image. This action raised concerns that he could not fairly discharge his duties to those he supervised and the inmate population without bias and with respect and fairness. However, other than a five- day suspension for turning in a questionnaire Jate, and a few written reprimands, the appellant has never received major discipline in his 19-year career. Moreover, it cannot be ignored that the appellant has received commendations for providing basic and advanced life support aid to an African-American female officer until paramedics arrived and transported her to a hospital in 2017, a commendation for performing CPR on an unresponsive African-American male inmate in 2015 until his pulse returned, and has served in a voluntary capacity as an EMT in various municipalities for over 30 years. While the Commission is cognizant of the seriousness of the sustained charges, these factors certainly bear on the severity of the penalty. Accordingly, the foregoing circumstances provide a sufficient basis to modify the appellant’s removal to a 30-working day suspension. See N.J.S.A. 11A:2- 19 and N.J.A.C. 4A:2-2.9(d). This penalty should impress upon the appellant that further infractions will not be tolerated and could lead to more severe disciplinary penalties, up to and including removal.

Since the removal has been modified, the appellant is entitled to mitigated back pay, benefits and seniority pursuant to N.JA.C. 4A:2-2.10 from 90 working days after his initial removal date to the date of actual reinstatement. However, the appellant is not entitled to counsel fees. Pursuant to N.J.A.C. 4A:2-2.12(a), an award of counsel fees is appropriate 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 any disciplinary appeal is the merits of the charges, not whether the penalty imposed was appropriate. See Johnny Walcott v. City of Plainfield, 282 N.J. Super. 121, 128 (App. Div. 1995); James L. Smith v. Department of Personnel, Docket No. A-1489-02T2 (App. Div. Mar. 18, 2004); In the Matter of Robert Dean (MSB, decided January 12, 1993); In the Matter of Ralph Cozzino (MSB, decided September 21, 1989). In this case, the Commission upheld the charges against the appellant and imposed major discipline. Therefore, the appellant has not prevailed on all or substantially all of the primary issues of the appeal. Consequently, as the appellant has failed to meet the standard set forth at N.J.A.C. 4A:2-2.12(a), counsel fees must be denied.

This decision resolves the merits of the dispute between the parties concerning the disciplinary charges and the penalty imposed by the appointing authority. However, in light of the Superior Court of New Jersey, 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, as the court states in Phillips, supra, if it has not already done so, upon receipt of this decision, the appointing authority shall immediately reinstate the appellant to his permanent position.

ORDER

The Commission finds that the action of the appointing authority in removing the appellant was not justified. The Commission therefore modifies the removal toa 90-working suspension. The Commission further orders that the appellant be granted back pay, benefits and seniority following his 90-working day suspension through the day of his actual reinstatement. The amount of back pay awarded is to be reduced and mitigated as provided for in N.J.A.C. 4A: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 should be pursued in the Superior Court of New Jersey, Appellate Division