SAMANTHA CHIRICHELLO, CSC Docket No. 2021-872

ee

BackgroundThe appeal of Samantha Chirichello, Senior Correctional Police Officer, Edna Mahan Correctional Facility, removal effective December 4, 2020, on charges, was heard by Administrative Law Judge Elia A. Pelios, who rendered his initial decision on August 26, 2021. Exceptions were filed on behalf of the appointing authority and 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 October 6, 2021, did not adopt the ALd’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, violation of the State Policy Prohibiting Discrimination in the Workplace (State Policy) and other sufficient cause. The appointing authority asserted that the appellant posted inappropriate material on Facebook on multiple occasions and violated policy regarding carrying a visible firearm. 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 his initial decision, the ALJ found that on an unspecified date, the appellant posted on Facebook a photo depicting a group of people lying across a two- lane highway with their hands behind their back. In the comments section, the appellant’s mother wrote “I would run them over no problem lol (laughing tears of joy emoji) didn’t see it.” The appellant shared another post on an unspecified date that quotes “if the police are going to be defunded, so should welfare, food stamps, and free medical care. If you don’t need police, you can take care of yourself at every level.” Additionally, the appellant shared a Facebook post that depicted a character that resembled “Elmer Fudd” with a confederate flag on his hat and chest while holding a black AR type rifle. Also in the picture was a fictional character resembling “Chase” from “Paw Patrol” and Elmer Fudd is captioned stating “I Got a New Gun & Friend”. She also shared the post of a picture of George Floyd and captioned in the text is “The media and the left have made George Floyd into a martyr. But who is he really?” After the quote is a list of criminal offenses dated from 1998 to 2017. Further, the appellant shared another post on Instagram depicting a picture of the appellant kneeling on one knee wearing a black t-shirt with a NJDOC badge on the left chest area. The background of the picture has graffiti, including a dominant quote “lives matter” outline with an arrow pointing down to the word “sike”. Below the picture of the appellant is the quote “if you are testing my water, you better know how to swim”. On another Facebook post, the appellant shared a picture of a male looking down at a head with a mask. Below the mask is the quote “pedophilia is a sexuality”. There is another picture of a male looking at the head and mask with a baseball bat smashing the head and blood splattering. The appellant shared a posted-on Twitter “Newark for a game! Ghetto time” (sic) “Washington heights is the worst show! So ghetto smh” (sic), Finally, an investigation revealed, and the appellant admitted that on or about June 20, 2020, she possessed a partly visible concealed firearm while purchasing alcoholic beverages.

The ALJ indicated that the appellant admitted posting the post containing the confederate flag but claimed she was not aware the flag was there and took it down within minutes. She expressed that she understood that people associate the confederate flag with racism and racist attitudes and understood that the post could be offensive. She explained that her intent in sharing the other internet posts was in support of people’s right to protest. The appellant did not have a recollection of purchasing alcohol while wearing a duty weapon and the ALJ determined there was an absence of direct witness testimony and clear visual evidence to uphold the charge regarding her firearm. However, the ALJ found that the appellant’s posts, regardless of her intent, exposes and ties together the appellant, her employment, and the sentiment reflected in the posts, to which she added no comment or context for countless people te see. Thus, any viewers of the post not familiar with the appellant or her personal views or thoughts on the sentiment of her intention in posting could reasonably presume that the sentiment expressed in the posts were a good measure of her ability to treat the people she serves in a fair and impartial manner. Accordingly, the ALJ concluded that the appointing authority sustained the charges associated with her postings of social media but dismissed the charges regarding the firearm. However, given that the appellant had never been charged with or been the subject of any prior complaints regarding discrimination, and the appointing authority’s lack of a social media policy, 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 that it cannot take the chance that the appellant will hopefully realize the gravity of her actions and how they jeopardized the safety of the prison. Further, the appointing authority states that the facts of the appellant’s case are different than other matters where the Commission modified the removals of employees that made comments on Facebook. Specifically, the appellant posted or shared multiple offensive images and comments, not merely “liked” one post.

In her exceptions, the appellant states that her conduct does not rise to the level to meet the threshold to be deemed conduct unbecoming a public employee. In this regard, she argues that although it is plausible that her posts could be interpretive as conveying a discriminatory message, it is also plausible that her actions could not be interpreted as such. The appellant suggests that the ALJ may have been unduly influenced by the backdrop of national events concerning social injustice and discrimination that occurred during the past year and is wrongfully presupposing the content of the appellant’s conduct while the conduct itself does not rise to an unlawful level. She also states that she was raised by her African- American father and works with employees who are diverse members of various protected classes. Accordingly, the appellant maintains that the ALJ’s findings were not supported by sufficient, competent and credible evidence in the record. Further, she has no disciplinary history and there was no evidence presented that she could not do her job in a fair and unbiased manner. Therefore, the appellant states that all the charges against her should be dismissed and/or the penalty significantly reduced.

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 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.JAR. 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 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 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 Senior Correctional Police Officer is a 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 NJ.

In this case, removal is the proper penalty. In this regard, it is noted that in In the Matter of Tammy Herrmann, 192 N.J. 19 (2007), the State Supreme Court upheld the removal of Herrmann, a Family Service Specialist Trainee with the Department of Youth and Family Services, who, during an investigation of alleged child abuse, flicked a lighted cigarette lighter in front of a special needs child. Herrmann had been employed 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.” Jd. at 38.

As noted in the appointing authority's exceptions, the appellant did not merely “like” one offensive post. Rather, she reposted and made many offensive and inflammatory comments and posts about those supporting defunding the police, those receiving public assistance, criminals, rioters, George Floyd’s criminal history and one with confederate flags on her public Facebook page. As noted by the ALJ, regardless of her intent in making the posts, the appellant’s posts expose and tie the appellant, her employment, and the sentiment reflected in the posts, to which she added no comment or context, for countless people to see. The Commission agrees that any viewer not familiar with the appellant or her personal views on the sentiment or intention in posting could reasonably presume that the sentiment expressed in the posts were a good measure of her ability to treat the people she serves in a fair and impartial manner. 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.

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 Samantha Chirichello.

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