Shamil Davis, CSC Docket No. 2022-545

BackgroundThe appeal of Shamil Davis, Senior Correctional Police Officer, William H. Fauver Youth Correctional Facility, Department of Corrections, removal, effective August 27, 2021, on charges, were heard by Administrative Law Judge Susan L. Olgiati (ALJ), who rendered her initial decision on April 24, 2023. 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, including a thorough review of the exceptions, the Civil Service Commission (Commission), at its meeting on June 7, 2023, adopted the ALJ’s Findings of Facts and her recommendation to uphold the removal. The Commission notes that it does not adopt the ALJ’s conclusion that the appellant violated the appointing authority’s policy regarding divulging confidential information, as the Commission is unclear as to how the information provided would be considered confidential in nature. Nevertheless, regardless of whether the information was confidential, it agrees that the divulging of that information to inmates was improper and was properly upheld by the ALJ under the conduct unbecoming a public employee charge. Additionally, the Commission agrees that all of the other charges should be upheld, and that based on those infractions, the penalty or removal is appropriate.

Upon its de novo review of the ALJ’s thorough and well-reasoned initial decision as well as the entire record, including the exceptions filed by the appellant, the Commission, aside from as noted above, agrees with the ALJ’s determinations regarding the charges, which were substantially based on her assessment of the credibility of the witnesses. In this regard, 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 NJ. 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.J. 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(¢); Cavalieri u. Public Employees Retirement System, 368 N.J. Super. 527 (App. Div. 2004). In this matter, the exceptions filed by the appellant 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. In this regard, the ALJ found the appointing authority's witnesses credible, but notably, as to the appellant’s testimony, the ALJ concluded that:

his testimony concerning his fleeting or incidental contacts with

Cromedy and Sherman was internally inconsistent, not fully consistent with his June 6, 2022, certification, and inconsistent with the competent documentary evidence in the record. Thus, I do not accept this portion of his testimony as reasonable, or reliable. Similarly, appellant’s explanation that he advised the inmates that he would be returning to complete his cell search because he was concerned he might be accused of planting evidence is not reasonable. Finally, I do not accept appellant’s explanation for failing to report that he had again been interviewed and Mirandized by the NBPD and that his phone had been seized/searched. While I appreciate that appellant may have been deeply affected by the loss of grandmother, his failure to report his additional interactions with the NBPD appears not to be an oversight but rather part of a pattern of a lack of candor in connection with the investigation. Thus, overall, I do not accept appellant’s testimony as reliable or credible.

Administrative Law JudgeThe ALJ made numerous detailed determinations based on her assessment of the credible evidence and presented logical and reasonable explanations for each. Upon its review, the Commission finds nothing in the record or the appellant’s exceptions, aside from what was noted previously, to question those determinations or the findings and conclusions made therefrom.

AnalysisSimilar to its assessment of the charges, the Commission’s review of the penalty 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 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.J.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 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 is held to a higher standard than a civilian public employee. See Moorestown v. 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).

Clearly, the appellant's egregious misconduct in this matter warrants removal from employment. As indicated by the ALJ:

the charges here are sufficiently serious to warrant appellant’s removal.

As set forth herein, appellant’s actions, including failing to disclose his relationships with parolees and being unduly familiar with them, advising the inmates of his plan to return and re-search the cell, mocking the inmates in texts with others concerning the contraband he found during the cell search, encouraging the inmates to strike, and texting about being drunk at work, compromised the safety and security of the DOC’s operations, its staff, and its inmates and violates the public trust. Further, his actions in failing to notify the DOC of his second interview with the NBPD violated the DOC’s rules and regulations.

Appellant’s actions also demonstrate a pattern of lack of candor anda lack of judgment expected of a law-enforcement officer. Appellant acknowledged that he did not think to report Cromedy and Sherman on his application for renewal of his DOC security clearance; did not think to report his relationship with Cromedy after his release because he beheved their relationship had changed; did not advise the DOC that he was again interviewed by the NBPD, that he had been Mirandized, or that his phone was seized; and thought it appropriate to advise the inmates of his plan to return and complete the cell search because he did not want to be accused of planting evidence. These actions demonstrate a serious lack of appropriate judgement and are contrary to the high standards of good conduct and judgment required of a law- enforcement officer

The Commission wholeheartedly agrees that the appellant’s actions in this matter fall well short of what is expected of a law enforcement employee and certainly are likely to undermine the public trust. As such, the Commission finds the penalty of removal neither disproportionate to the offenses nor shocking to the conscious.

ORDER

The Civil Service Commission finds that the action of the appointing authority in removing the appellant was justified. The Commission therefore upholds that action and dismisses the appeals of Shamil Davis.

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