Opinion
DOCKET NO. A-5346-10T2
12-07-2012
IN THE MATTER OF JAMIE SKINNER, DEPARTMENT OF CORRECTIONS.
The Law Offices of Malcolm Blum, attorneys for appellant Jamie Skinner (Jennifer M. Blum, on the brief). Jeffrey S. Chiesa, Attorney General, attorney for respondent New Jersey Department of Corrections (Lewis Scheindlin, Assistant Attorney General, of counsel; Donna Arons, Deputy Attorney General, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad, Nugent and Haas.
On appeal from the Civil Service Commission, Docket No. 2010-8.
The Law Offices of Malcolm Blum, attorneys for appellant Jamie Skinner (Jennifer M. Blum, on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondent New Jersey Department of Corrections (Lewis Scheindlin, Assistant Attorney General, of counsel; Donna Arons, Deputy Attorney General, on the brief). PER CURIAM
Jamie Skinner appeals from a final determination of the Civil Service Commission (Commission) terminating his employment with the Department of Corrections (DOC). The Commission adopted the findings of fact of the Administrative Law judge (ALJ) upholding the charges of conduct unbecoming a public employee, undue familiarity, and other sufficient cause, but rejected the ALJ's conclusion that the DOC had not met its burden on the falsification charges, and upheld the removal initially imposed by the DOC rather than the six-month suspension recommended by the ALJ. We affirm.
I.
The following facts were adduced at the hearing under review. Appellant was a Senior Corrections Officer (SCO) assigned to East Jersey State Prison in Rahway since December 2005. On April 2, April 22, and May 4, 2009, the DOC issued Preliminary Notices of Disciplinary Action (PNDA) alleging appellant had engaged in conduct unbecoming a public employee, N.J.A.C. 4A:2-2.3(a)(6); other sufficient cause, N.J.A.C. 4A:2-2.3(a)(11); and various violations of the Human Resources Bulletin 84-17 (the Bulletin), including improper or unauthorized contact with an inmate and providing false statements to DOC investigators. Following Loudermill hearings, the DOC suspended appellant without pay and sought his removal.
Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 105 S. Ct. 1487, 84 L. Ed. 2d 494, 504 (1985).
In the first PNDA, the DOC charged that appellant had failed to report that his mother, Lexine Skinner, had applied for a mortgage on his behalf with Dina Shafran, the wife of an inmate, Pedro Solar, who was incarcerated at Mid-State Correctional Facility with appellant's brother Jason Skinner, in violation of the Bulletin. In the second PNDA, the DOC charged that appellant had provided false statements to investigators when he claimed he had no knowledge that Shafran was Solar's wife until his mortgage was denied in August 2008, directly contradicted by a May 24, 2008 phone conversation between appellant and Jason. In the third PNDA, the DOC charged that appellant had provided a favor to Solar on July 5, 2008, at Jason's request, by facilitating unauthorized phone calls on Solar's behalf to Shafran and Solar's father-in-law. Appellant was also charged with providing false information to investigators on March 31, 2009. In the videotaped interview, he denied knowing Solar or having any contact with Solar's family members, in contradiction of the July 5, 2008 phone conversation.
For ease of reference, in this opinion we refer to appellant's brother and mother by their first names; we mean no disrespect.
--------
The DOC issued three Final Notices of Disciplinary Action (FNDA) on June 15, 2009, sustaining the charges and removing appellant from his position. Appellant appealed, and the matter was transmitted to the Office of Administrative Law (OAL) for a hearing.
Appellant filed a motion to dismiss the disciplinary charges, arguing, in part, that the investigation against him was biased and could not be cured. The case was heard over five days from October to December 2010. The ALJ denied appellant's motion, after which the following persons testified for the DOC: Senior Investigators Christopher Birardi and Kevin Koch of the Special Investigations Division (SID), and Chief James Keil, Director of Custody Operations. Appellant presented his brother Jason, his mother Lexine, and his former supervisors, Lieutenants Thomas Olson and James Jones. Appellant also testified on his own behalf.
Inv. Birardi testified that while investigating an incident concerning Solar, he and Inv. Koch listened to recordings of telephone calls Solar made from prison. During a call Solar made to Shafran on March 20, 2009, he complained about being placed in "lock up" and asked her to contact "Skinner's mother" and "[t]ell her Skinner better do something for me[.]" Unsure of whether Solar was referring to appellant or Jason, Inv. Birardi contacted Shafran and Lexine. Shafran, who works as an underwriter for a mortgage company, told Inv. Birardi that Lexine had applied for a mortgage on behalf of appellant.
Inv. Birardi interviewed appellant on March 31, 2009 regarding the mortgage application and his relationship with Solar and Shafran. Also present at the interview were Inv. Koch, union representative Keith Gargone, and Lt. Tracy Diaz of the Union County Prosecutor's Office. Appellant admitted he had called Shafran on her cell phone on August 4, 2008, and authorized her mortgage company to run a credit check in connection with his mortgage application. He denied, however, that he physically made the application. Appellant also claimed he was unaware of Shafran's relationship with Solar until after the mortgage application was denied in August 2008. Appellant did admit, however, that he did not report to the DOC the fact he had a mortgage application processed with the wife of an inmate. He also denied that at any time "this guy Pedro [Solar] or his wife contacted me for any type of personal help . . . ."
Inv. Birardi continued the investigation and discovered two additional telephone calls connecting appellant, Solar, and Shafran, which were played for the ALJ. On May 24, 2008, Jason called appellant and explained he knew someone who had a mortgage company and gave him the phone number of that person's wife so Lexine could contact her to help their sister obtain a mortgage. Jason referred to his contact as "the guy here" and "one of the buddies I talk to[,]" but never specifically mentioned his name, and referred to his contact's wife solely as "his wife."
Jason asked appellant to conference Lexine into the call, which he did. Jason repeated what he had just told appellant, referencing his contact as "this guy Peter I'm here with[.]" While Jason was speaking with Lexine, appellant interjected that he may be able to use "Peter" to refinance his own home. Toward the end of the conversation, Jason identified "Peter's" wife as Shafran. Solar then got on the telephone that Jason was using, and informed Lexine that his wife was an underwriter who could help her obtain a mortgage. Inv. Koch acknowledged that he could not "ascertain whether or not [appellant was] on the line at that point."
On July 5, 2008, Jason called appellant to ask for a "favor." Jason told appellant he was going to put "Dina's husband" on the phone because "[h]e can't get a hold of her" and would explain who he wanted appellant to call for him. Solar got on the phone, explained the situation to appellant, and appellant attempted to facilitate a three-way call to Solar's wife. Solar expressed concern that appellant could get "in trouble" for making the conference call. Appellant apparently understood how to circumvent the prison phone system from disconnecting the prohibited three-way call.
Appellant could not reach Shafran so he informed Solar that he had left a message for her. At Solar's request, appellant then placed a three-way call to Solar's father-in-law, during which Solar explained to his in-laws that he was concerned because he could not get in touch with Shafran. At one point, appellant interjected that if Shafran "calls and leaves me a message and my brother calls me, I'll let you know."
Appellant testified that after he was placed on the undesirable third shift, he began to file grievances about various problems within the prison. He filed about thirty grievances in twenty days. In January 2008, appellant filed a report with the Occupational Health and Safety Administration identifying hazardous areas within the prison, which resulted in an OSHA inspection. Appellant also served as a union representative. Appellant felt the DOC considered him "a pain in their ass."
Lieutenants Jones and Olson opined that the DOC disliked appellant and were biased in how they treated him. Lt. Jones said he never had any problem with appellant, who was a "joy to work with[,]" and he had twice recommended appellant for letters of commendation. He viewed the DOC's investigation of appellant as a "witch hunt" and claimed Inv. Birardi had a bad reputation for "not being straightforward" and "manipulating evidence[.]" Similarly, Lt. Olson opined that appellant "had a target on his back" and that the administration "want[ed] to get rid of that annoyance."
II.
The ALJ issued an initial decision on March 4, 2011. He denied appellant's motion to dismiss the charges based on the allegations that the DOC did not provide him with an unbiased investigator, adequate notice of the charge, or a departmental hearing. The ALJ explained that the standard of review is de novo and any procedural irregularity at the departmental level is cured by the OAL hearing. Henry v. Rahway State Prison, 81 N.J. 571, 579 (1980); Ensslin v. Twp. of N. Bergen, 275 N.J. Super. 352, 361 (App. Div. 1994), certif. denied, 142 N.J. 446 (1995). He also substantively rejected appellant's attempt to exclude the recording of his March 31, 2009 interview on Fifth Amendment grounds, noting the exclusionary rule is inapplicable to administrative proceedings. See, e.g., Delguidice v. N.J. Racing Comm'n, 100 N.J. 79, 89-92 (1985).
Based on the recordings and testimony adduced at trial, the ALJ found the DOC proved, by a preponderance of the evidence, the charges contained in the first PND, that appellant failed to report he had applied for a mortgage with the wife of an inmate. The ALJ nonetheless found credible appellant's testimony that he was not on the phone during the part of the recorded conversation on May 24, 2008, during which Solar's and Shafran's identities were revealed. He thus concluded that appellant did not make any intentional misstatements of material fact in connection with the March 31, 2009 investigation and found the DOC was unable to prove the charges alleged in the second PND.
The ALJ also found appellant facilitated unauthorized three-way calls to Shafran and Solar's father-in-law, both on behalf of Solar and as a favor to his brother Jason. He also found that appellant knew the person his brother was with when he made the call was an inmate and that Shafran was the inmate's wife. Nevertheless, the ALJ found the July 5, 2008 phone conversation did not contradict statements that appellant made to investigators on March 31, 2009. The ALJ noted that appellant thought it was permissible for correction officers to "bend the rules" and facilitate three-way calls for inmates who were in distress. Accordingly, the ALJ sustained the charges of conduct unbecoming a public employee and other sufficient cause as they related to the third PND, but found insufficient the charges of making an intentional misstatement of facts in connection with an investigation.
In recommending a penalty, the ALJ determined that progressive discipline should apply. In light of appellant's lack of "significant prior discipline" and exemplary record at the Academy, the ALJ recommended a three-month suspension for each infraction, for a total of six months. Both parties filed exceptions.
The Commission issued its final decision on June 1, 2011. Following a de novo review of the record, the Commission adopted the ALJ's findings of fact, but concluded the DOC "met its burden of proof regarding all of the charges." In rejecting the ALJ's inferences and sustaining the charges regarding falsification during the March 31, 2009 investigation, the Chairperson reasoned:
The appellant's application for a mortgage was denied in August 2008. Clearly, the ALJ found that the appellant's brother called him on May 24, 2008 and explained that he knew someone ("the guy here," where the word "here" obviously refers to the prison where the appellant's brother was incarcerated) who had a mortgage company and requested that the appellant write down the phone number of this person's wife so that their mother could call her to help his sister get a mortgage. Moreover, the ALJ found that on July 5, 2008, the appellant facilitated unauthorized three-way calls to Dina Shafran and Marc Shafran, both on behalf of Solar as a favor to his brother. Thus, it is evident that the appellant must have known that Shafran was the wife of an inmate prior to August 2008.
The Commission also disagreed with the ALJ as to the seriousness of appellant's infractions, noted that a law enforcement officer is held to a higher standard than a civilian public employee, and determined that the DOC's penalty of removal was justified and should be upheld. The Chairperson explained:
An individual in the appellant's position is entrusted with the supervision of inmates in a secured facility. Any relationship, be it with an inmate or a parolee, or a family member of an inmate, must be disclosed and reported to the appropriate authority in order to maintain the safety and security of the facility. In this case, it is evident that the appellant repeatedly violated the policy: he clearly failed to report that he had applied for a mortgage with the wife of an inmate, he facilitated unauthorized three-way calls to the wife and father-in-law of the same inmate and he lied to staff investigating the matter. Such inappropriate behavior cannot be tolerated and is worthy of severe sanction.This appeal ensued.
III.
Established precedents guide our task on appeal. Appellate review of an administrative agency decision is limited. In re Herrmann, 192 N.J. 19, 27 (2007). A strong presumption of reasonableness attaches to the Commission's decision. In re Carroll, 339 N.J. Super. 429, 437 (App. Div.), certif. denied, 170 N.J. 85 (2001). Appellant has the burden to demonstrate grounds for reversal. McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 563 (App. Div. 2002); see also Bowden v. Bayside State Prison, 268 N.J. Super. 301, 304 (App. Div. 1993) (holding that "[t]he burden of showing the agency's action was arbitrary, unreasonable, or capricious rests upon the appellant"), certif. denied, 135 N.J. 469 (1994).
Appellate courts generally defer to final agency actions, only "reversing those actions if they are 'arbitrary, capricious or unreasonable or [if the action] is not supported by substantial credible evidence in the record as a whole.'" N.J. Soc'y for the Prev. of Cruelty to Animals v. N.J. Dep't of Agric., 196 N.J. 366, 384-85 (2008) (quoting Henry, supra, 81 N.J. at 579-80) (alteration in original). Under the arbitrary, capricious, and unreasonable standard, our scope of review is guided by three major inquiries: (l) whether the agency's decision conforms with relevant law; (2) whether the decision is supported by substantial credible evidence in the record; and (3) whether in applying the law to the facts, the administrative agency clearly erred in reaching its conclusion. In re Stallworth, 208 N.J. 182, 194 (2011).
When an agency decision satisfies such criteria, we accord substantial deference to the agency's fact-finding and legal conclusions, acknowledging the agency's "'expertise and superior knowledge of a particular field.'" Circus Liquors, Inc. v. Middletown Twp., 199 N.J. 1, 10 (2009) (quoting Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992)). We will not substitute our judgment for the agency's even though we might have reached a different conclusion. Stallworth, supra, 208 N.J. at 194; see also In re Taylor, 158 N.J. 644, 656 (1999) (discussing the narrow appellate standard of review for administrative matters).
Our deference to agency decisions "applies to the review of disciplinary sanctions as well." Herrmann, supra, 192 N.J. at 28. "In light of the deference owed to such determinations, when reviewing administrative sanctions, the test . . . is whether such punishment is so disproportionate to the offense, in light of all the circumstances, as to be shocking to one's sense of fairness." Id. at 28-29 (internal quotation marks omitted). "The threshold of 'shocking' the court's sense of fairness is a difficult one, not met whenever the court would have reached a different result." Id. at 29.
With those principles in mind, we turn to appellant's contentions. He first claims the investigation of the charges against him was so tainted that the charges cannot be sustained, and the ALJ erred in denying his motion to dismiss the charges on that basis. He alternatively argues the Commission's findings that he violated all of the charges, bypass of progressive discipline, and sanction of termination were arbitrary and capricious. Specifically, appellant argues that if we determine the evidence from the investigation should have been presented to the ALJ, we should give extraordinary deference to that factfinder, who concluded appellant did not violate all of the initial charges and who recommended he receive a six-month suspension rather than termination.
Appellant first urges that the charges should be dismissed "[b]ecause the investigation was utterly devoid of any fundamental fairness or an ounce of credibility," citing O'Rourke v. City of Lambertville, 405 N.J. Super. 8 (App. Div. 2008), certif. denied, 198 N.J. 311 (2009). Specifically, appellant contends the DOC had a vendetta against him because of his role as a union representative, and Inv. Birardi was biased against him, depriving him of a fair investigation. Based on our review of the record, we are not persuaded by this argument.
In O'Rourke, we held that the reinstatement of a public employee was necessary where the agency that employed him failed to adhere to the rules it promulgated, which required the agency to implement guidelines concerning the investigation of its own employees for disciplinary infractions. Id. at 23. There, a police officer's misconduct was investigated by his own supervisor, who was not permitted pursuant to agency rules to conduct the investigation. Id. at 20-21. Although the officer had, in fact, engaged in conduct unbecoming a public employee, in reinstating the officer, we reasoned: "Our decision turns upon the fact that [the supervisor] undertook an investigation that he was not authorized to undertake, failed to conduct the investigation in a fair and objective manner, and issued a report recommending disciplinary action that is replete with his opinions, conclusions and personality." Id. at 23.
Although irregularities in an agency's disciplinary process can be cured by a subsequent de novo evidentiary hearing, Ensslin, supra, 275 N.J. Super. at 361, a court must consider the degree to which the employee has been biased. O'Rourke, supra, 405 N.J. Super. at 22. When the agency's deviation "undermine[s] the fairness of the process at its inception and taint[s] the entire proceeding[,]" reinstatement is appropriate. Ibid.
Here, however, the alleged bias against appellant is based on speculation and opinion. Appellant suggests he had a "target on his back" because of the grievances he filed and because of his efforts as a union representative, and therefore the disciplinary process "was never going to be handled fairly." The case against appellant, however, rested primarily on his own statements, made in the recorded calls, rather than on the testimony of any biased agency investigators that implicated him in the misconduct. Even appellant's own witnesses conceded that the charges brought, if proven, constituted a serious infraction of departmental rules.
Moreover, unlike in O'Rourke, where the officer's supervisor conducted the investigation contrary to the agency's guidelines, Inv. Birardi was an SID member who was authorized to conduct this investigation. Although Inv. Birardi candidly admitted he did not like appellant based on his experience investigating appellant's actions in another matter, the record contains no evidence of bias or improper behavior by Inv. Birardi or other members of the investigatory staff.
We are satisfied the five-day trial conducted by the ALJ afforded appellant sufficient opportunity for the ALJ to assess the potential bias and credibility of the testifying investigators. Appellant presented no credible factual basis for his claim that the evidence presented at the OAL was "manipulated or manufactured." In fact, the ALJ expressly rejected appellant's claim that the voice on the July 5, 2008 tape was not that of Solar. The ALJ compared that voice with Solar's voice on the March 20, 2009 recorded phone call that precipitated the investigation. He concluded that contrary to the testimony of appellant, Lexine, and Jason, Solar did not have a heavy accent and did not roll his R's. The ALJ further noted that Inv. Koch had heard Solar speak on countless calls and had identified the speaker as Solar. Accordingly, there was ample basis for the ALJ's conclusion that the recording of the July 5, 2008 call was authentic and the voice the DOC identified on the recordings as Solar was, in fact, him.
Appellant next challenges the Commission's decision to overturn the ALJ, and sustain the DOC's decision to remove him from his position as an SCO as arbitrary and capricious. He contends there were no facts that demonstrated he made false statements to Inv. Birardi during the March 31, 2009 interview or that appellant was unduly familiar with Solar or his family. Based on our analysis of the record within the perspective of our limited standard of review, we are not persuaded appellant has carried his burden of demonstrating the Commission's decision was arbitrary or capricious. We are satisfied the Commission's findings with respect to the charges and its determination of the penalty are based on substantial credible evidence in the record.
Under the Administrative Procedure Act, N.J.S.A. 52:14B-1 to -30, "an ALJ, who has been assigned to review a disputed matter involving a State agency, is charged with issuing a decision that contains recommended findings of fact and conclusions of law that are 'based upon sufficient, competent, and credible evidence.'" In re Taylor, supra, 158 N.J. at 655 (quoting N.J.S.A. 52:14B-10(c)). The agency is the "primary factfinder[,]" and has the "ultimate authority, upon a review of the record submitted by the ALJ[,] to adopt, reject or modify the recommended report and decision of the ALJ." N.J. Dep't of Pub. Advocate v. N.J. Bd. of Pub. Utils., 189 N.J. Super. 491, 507 (App. Div. 1983).
Here, the ALJ found appellant failed to report that his mother applied for a mortgage on his behalf with the wife of an inmate, facilitated unauthorized three-way calls between an inmate and his family, and was familiar with both Solar and Shafran when he placed the improper phone calls on July 5, 2008. He nonetheless concluded that appellant did not intentionally make false statements to the investigators during the March 31, 2009 interview. He reasoned that appellant had only been asked during the interview if he ever met Solar or any other inmate when visiting his brother, which appellant denied, but he was not asked whether he ever spoke to Shafran on the phone. The ALJ also noted that the interview did not provide a time frame, thus it was not clear from the interview whether appellant knew Shafran was the wife of an inmate before or after she ran his credit report on August 5, 2008.
The issue on appeal is whether we should defer to the inferences drawn by the Commission that appellant knew who "Dina" and Solar were prior to August 2008. Although the Commission departed from the inferences and conclusions drawn by the ALJ in regard to those facts, the agency was well within its discretion to do so and drew a reasonable inference that appellant did, in fact, provide false statements to investigators. See Cavalieri v. Bd. of Tr. of Pub. Emps. Ret. Sys., 368 N.J. Super. 527, 537 (App. Div. 2004) (holding that for an agency to reverse the ALJ's factual findings of lay witnesses, it must "explain why the ALJ's findings are unsupportable by the record, not simply that [it] disagree[s] with the judge or would have decided differently from the evidence that was presented"). We are satisfied the Chairperson sufficiently provided such explanations.
Even assuming appellant did not remain on the call or pay attention to the entire call on May 24, 2008, as noted by the Chairperson, Jason's reference to "the guy here" clearly was to someone in prison, and appellant asked for assistance with his own mortgage from his brother's contact. The ALJ also found that by July 5, 2008, appellant was familiar with both Shafran and Solar. This clearly contradicts appellant's statements that he did not know Shafran or Solar until August 2008, and that he had "at no time" been contacted by or provided help to Solar. Thus, as the Commission's final decision is not "clearly . . . mistaken" or "plainly unwarranted[,]" Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 588 (1988), we discern no basis to second-guess it.
Regarding appellant's contentions that his conduct was not egregious enough to warrant removal, and that progressive discipline was required, our Supreme Court has said, "courts should take care not to substitute their own views of whether a particular penalty is correct for those of the body charged with making that decision." In re Carter, 191 N.J. 474, 486 (2007). "[W]hen reviewing administrative sanctions, the test . . . is whether such punishment is so disproportionate to the offense, in light of all the circumstances, as to be shocking to one's sense of fairness." Herrmann, supra, 192 N.J. at 28-29 (internal quotation marks omitted).
The concept of "progressive discipline" has long been utilized when determining the appropriate penalties for the misconduct of public employees. Herrmann, supra, 192 N.J. at 29-30. That is, an employee's "past record[,]" including the reasonably recent history of promotions, commendations, and formally or informally adjudicated disciplinary actions "may be resorted to for guidance in determining the appropriate penalty for the current specific offense." West New York v. Bock, 38 N.J. 500, 523-24 (1962). Under this system, an employee's past record can support the imposition of a more severe penalty, or, conversely, can be used to mitigate the penalty of a present offense. Herrmann, supra, 192 N.J. at 30-33.
However, "progressive discipline has been bypassed when an employee engages in severe misconduct, especially when the employee's position involves public safety and the misconduct causes risk of harm to persons or property." Id. at 33. For instance, in Henry, supra, the New Jersey Supreme Court reversed the Commission and reinstated the penalty of removal of a prison employee who was found to have falsified a report. 81 N.J. at 580. There, the Court upheld the Commission's factual findings but concluded the Commission "did not consider adequately the seriousness of the charges." Ibid. Thus, while "progressive discipline is a worthy principle[,] . . . it is not subject to universal application when determining . . . [the] quantum of discipline." Herrmann, supra, 192 N.J. at 36.
Moreover, maintaining discipline and order over both inmates and employees is critical to properly operate prison facilities. Bowden v. Bayside State Prison, 268 N.J. Super. 301, 305-306 (App. Div. 1993), certif. denied, 135 N.J. 469 (1994) (citing Henry, supra, 81 N.J. at 579). In Bowden, the appellant prison guard was removed from his position for gambling with inmates. Id. at 303. The Merit System Board reduced the guard's penalty to a six-month suspension; however, we reversed and reinstated the removal. Id. at 306. We reasoned, "[t]he appraisal of the seriousness of [a guard's] offense and degree to which such offenses subvert discipline at [a prison] are matters peculiarly within the expertise of the corrections officials." Ibid.
In sustaining the DOC's decision to remove appellant, the Commission concluded:
[T]he appellant attempts to mitigate the seriousness of his infraction, arguing that he thought it was permissible for correction officers to bend the rules in situations where an inmate is perceived to somehow be in distress. The Commission disagrees. Not only did the appellant fail to report that his mother had applied for a mortgage with the wife of an inmate, he also facilitated three-way phone calls for the same inmate to his wife and father-in-law. Moreover, during the investigation into these matters, the appellant gave misleading statements to the investigators.These concerns are consistent with the testimony and evidence presented to the ALJ. For instance, Directive #COM.03.002 states that "[o]ver-familiarity with inmates is destructive in every sense. It dishonors oneself, one's family, and the badge."
An individual in the appellant's position is entrusted with the supervision of inmates in a secured facility. Any relationship, be it with an inmate or a parolee, or a family member of an inmate, must be disclosed and reported to the appropriate authority in order to maintain the safety and security of the facility. In this case, it is evident that the appellant repeatedly violated the policy . . . .
Chief Keil elaborated on the consequences of a breach of this rule: "Once an employee compromises him or herself and participates in activities related to undue familiarity, they compromise the safety of not only themselves but their fellow correction officers, their supervisors, the inmates and the public at large." As he noted, such a relationship between an SCO and inmate or their family can lead to improper favors between guards and inmates. In fact, by embarking on a financial transaction with Solar's wife, appellant made himself vulnerable to demands for recompense from the inmate. Solar did subsequently seek special treatment from appellant - requesting assistance in facilitating unauthorized calls in July 2008, and in March 2009 attempting to obtain relief from his lock-up situation. Thus, by his actions, appellant imperiled not only himself, but his colleagues, inmates, and the public at large. Appellant's removal from his public position as an SCO as a result of his conduct does not shock our sense of fairness.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION