NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
Petitioner Gary Victor appeals from a December 17, 2015 final administrative action of the Civil Service Commission (Commission) upholding his ten-day suspension. We affirm.
Petitioner began working as a correction officer in Mercer County in 1993, and was promoted to sergeant in 2007, a position he held when this matter arose. On January 24, 2011, petitioner was the Receiving and Discharge (R&D) Sergeant. On that night, he mistakenly discharged an inmate instead of turning him over to the Plainsboro Police Department as required by the inmate's discharge paperwork.
On or about May 11, 2011, the County of Mercer (County) served petitioner with a preliminary notice of disciplinary action, in accordance with
We discern the following from the hearing record. Lieutenant Steven Boseke was shift commander at the correctional facility on January 24, 2011. Boseke testified three different individuals review an inmate's record to ensure the particular inmate is to be discharged. Here, Boseke, Mary Gales, a civilian employee, and
Lieutenant P.A. Barber signed the inmate's discharge paperwork. Boseke testified the inmate's paperwork stated, "Turned over to Plainsboro Township," however, on the top right corner there was a handwritten note, which read, "No ride, Annex." Boseke did not recall seeing the handwritten note prior to signing the discharge paperwork and stated, if he had seen it, he would have questioned it, because it meant the inmate was to be released to the street.
Boseke identified a body receipt form used when officers from another municipality come to retrieve an inmate. The retrieving officer must sign the form to demonstrate he has taken custody of the inmate. The body receipt should be attached to the discharge paperwork. Once all forms are collected and signed, the paperwork is sent to the R&D Sergeant, who on January 24, 2011, was petitioner. Petitioner's signature appears at the bottom of the inmate's discharge paperwork dated January 24, 2011.
That night, petitioner called Boseke and told him he mistakenly discharged the inmate to the streets.
Mary Gales works in the records department and prepared the inmate's discharge paperwork. Boseke testified Gales crossed out "This certified that I, Plainsboro, received" because she had written it in the wrong place. Additionally "No ride, Annex" was written on the right side of the document, indicating the inmate needed to be transported by van. Boseke testified Officer Curtis Diaz, working in Control Room 3 on January 24, also reviewed the inmate's paperwork to ensure all information was correct. Boseke stated he did not review the log book entry from January 24, which states the inmate was "Turned over to the Street."
Styles was a transportation officer on January 24, 2011. Styles transported four discharges, including the inmate in question, to downtown Trenton to be dropped off and her way back, she received a phone call from petitioner advising the inmate needed to be returned to the correctional facility. Her partner, Officer Gary Vannozzi, turned their vehicle around and they spotted the inmate walking. When they called out to the inmate asking him to come back to the van, the inmate shook his head no and began to run. A Trenton Police car was in a nearby parking lot and after Styles ran over to explain the situation, the officer got on their radio and Trenton Police apprehended the inmate.
Styles testified the inmate was on the street for about ten minutes. Styles and Vannozzi returned the inmate to the correctional facility, where petitioner told Styles, "[i]t was a mistake, mistakes happen."
Lieutenant Farah Fioravanti, a Mercer County corrections officer, authored an investigation report about the January 24 incident. As part of her investigation, Fioravanti interviewed petitioner, Boseke, Officers Jeffrey Lane, Steven Rinz Diaz, Styles, and Vannozzi. According to Fioravanti, petitioner admitted he wrote "No ride, Annex" on the discharge paperwork and only became aware he mistakenly discharged the inmate when the Plainsboro Police Department arrived to pick him up.
Fioravanti concluded petitioner violated Standard Operating Procedure (SOP) 210: "Post Orders — Sergeant (General)." SOP 210 D.2. provides: "`R&D' Sergeant includes management and supervision of Detention Floor, Property Storage, Control Room 3, and the receiving and discharge of inmates. The R&D Sergeant is required to coordinate efforts closely with the Classification/Records Lieutenant." Fioravanti rejected petitioner's allegation someone altered or switched the discharge paperwork after the inmate had left.
Petitioner's internal affairs statement recounted the discharge paperwork he received showed the inmate was to be released to the street; though he reported, "it was possible" he overlooked the fact the discharge paperwork said "Turn over to Plainsboro Township." In his statement, petitioner recounted he did not see the inmate's active charge in the computer system until after the inmate was discharged and in the transportation van.
Lane, a property officer at the correctional facility reviewed the inmate's discharge paperwork and did not notice the inmate was supposed to be discharged to Plainsboro Police Department but he could not rule out the discharge paperwork did say, "Discharge to Plainsboro."
Diaz was working as the Control Room 3 officer on January 24, 2011. Diaz testified as R&D receives discharge paperwork for various inmates, he would check their picture cards to verify the correct inmate was being discharged, as well as check their jail number. Diaz did not notice the inmate was supposed to be turned over to the Plainsboro Police Department. Petitioner was Diaz's supervisor on January 24, 2011.
Petitioner testified he learned the inmate was mistakenly discharged when the Plainsboro police arrived to pick up the inmate. According to petitioner, he asked Diaz for the inmate's discharge paperwork, which then had "Plainsboro" written on it. Petitioner testified the discharge paperwork Diaz handed him was not the original paperwork he saw for the inmate and it now included a body receipt not attached previously. On cross-examination, petitioner acknowledged he never attempted to locate the original discharge paperwork. He also testified he wrote "No ride, Annex" on the discharge paperwork and the discharge paperwork from Diaz said the same thing. The only difference between what petitioner saw originally and what he received from Diaz was the body receipt.
Following the testimony, the administrative law judge (ALJ) issued his initial decision on November 5, 2015, finding the County established, by a preponderance of the evidence, petitioner violated the rules and regulations charged in the final notice of disciplinary action, except
Petitioner filed exceptions with the Commission, and on December 17, 2015, the Commission issued its final administrative action accepting and adopting the ALJ's findings of fact and conclusions. This appeal followed.
Petitioner argues the Commission's findings are arbitrary, capricious, and unreasonable, as the County failed to establish by a preponderance of the evidence the charges cited against him in the final notice of disciplinary action. We disagree.
Our review of agency action is limited. "An appellate court ordinarily will reverse the decision of an administrative agency only when the agency's decision is `arbitrary, capricious or unreasonable or is not supported by substantial credible evidence in the record as a whole.'"
Petitioner argues the County did not meet its burden of proof as to
Conduct unbecoming an officer has been defined as "any conduct which adversely affects the morale or efficiency of the [correctional facility] . . . which has a tendency to destroy public respect for municipal employees and confidence in the operation of municipal services."
Petitioner argues he relied in good faith on the "No ride, Annex" note on the discharge paperwork and believed the inmate was to be transported to the street. However, at the hearing, petitioner admitted he wrote "No ride, Annex" on the paperwork. Petitioner could not have relied in good faith on the paperwork if he was the one who wrote the note. Additionally, the ALJ did not find petitioner's testimony credible. Based upon our deference to the ALJ's credibility determination,
Petitioner argues the County did not meet its burden of proof as to
Petitioner also argues the County did not meet its burden of proof for the charge of other sufficient cause,
After careful review of the record, we do not consider the Commission's decision to adopt the ALJ's findings of fact and conclusions arbitrary, capricious, or unreasonable.
As to the penalty, we find the ten-day working suspension to be consistent with our case law. In
Viewing the record in light of our Supreme Court's discussion in