On appeal from Departmental Hearing-- Department of Corrections.
King, Deighan and Bilder.
[200 NJSuper Page 508] Appellant Charles Stowman, a lieutenant in the Department of Corrections (Department), assigned to Leesburg State Prison, appeals from a five-day suspension imposed upon him after a departmental hearing. On February 1, 1983, appellant was served with a notice of minor disciplinary action charging him with a violation of administrative regulations involving safety and security. The notice contained the following specification of the charges:
On 1/18/83 your [sic] turned over an incorrect institution count to the second shift. Approximately 12:10 p.m. it was reported to you by Off. Blystone that inmate Sharme 68446 was discharged and asked you to sign the discharge papers [which you did]. You never dropped him from the master count book nor did you tell Off. Sokolov to drop him from his Unit Count.
Appellant was informed that he would be suspended for five-days.
Appellant appealed the determination and a departmental hearing was held on February 5, 1983. The hearing officer, Lawrence Ashton, sustained the charges against appellant and sustained the five-day suspension. Appellant appealed to this court. We reversed appellant's suspension and remanded for further proceedings because of the absence of evidence that appellant had a continuing duty on the day of the incident to prepare an inmate count report. In an unpublished opinion we stated:
On remand, the same hearing officer, Lawrence Ashton, conducted another informal hearing.
Chief James Ucci, the deputy keeper of Leesburg State Prison, testified that on January 18, 1983, beginning at 11:30 a.m. appellant was the center keeper. The center keeper supervises the operation of a shift. He receives inmate counts from various areas of the institution and maintains a log showing the number of inmates in the prison. If an inmate is released or enters the prison, it is his responsibility to ensure that this is recorded in the log. At 11:30 a.m. on January 18, 1983, Chief Ucci relieved Lieutenant Parsons, the center keeper, from that duty and told him to have appellant replace him as center keeper. Chief Ucci stated that he went to the center area several times after this and saw appellant acting as center keeper.
From the reports entered into evidence, at 12:10 p.m. on January 18, 1983, while appellant was serving as center keeper, he signed a discharge form for the release of inmate Sharme. Although the 11:30 a.m. count listed Sharme as being out, the 4 p.m. count listed him as present. Sharme had in fact been released, but the count did not reflect this until 8 p.m.
The Department entered into evidence a memorandum from Edward O'Lone, superintendent of the Leesburg State Prison, outlining the duties of a center keeper. Also entered was the interoffice memorandum of Lieutenant Preston Hoffman to Chief Ucci stating that the court log prepared by appellant for his shift on January 18, 1983, did not properly account for inmate Sharme's release.
When the hearing convened on February 23, 1984, appellant's attorney called Lieutenant Hoffman as his first witness and requested that he be sworn. The hearing officer refused to have the witness sworn, and stated it was unnecessary in an administrative hearing. Further, all other witnesses were not sworn. Upon counsel's refusal to present testimony from any witness who was not sworn, the hearing officer terminated the hearing. Ashton issued a decision upholding the charges and sustaining the original sanction.
Appellant contends that the hearing officer erred by refusing to permit appellant to have witnesses sworn thereby denying him due process of law. He also contends that the decision of the hearing officer is not supported by sufficient credible evidence. The latter contention concerning an insufficiency of credible evidence is totally without merit. The decision is supported by sufficient credible evidence ...