Decided As Amended March 9 1989.: January 30, 1989.
On appeal from the final decision of the Merit System Board in the New Jersey Department of Personnel.
Brody, Ashbey and Skillman. The opinion of the court was delivered by Ashbey, J.A.D. Skillman, J.A.D. dissenting.
[230 NJSuper Page 376] Appellant James Moore was a senior corrections officer at the Youth Correctional Institution at Annandale.*fn1 The Merit System Board (Board) of the Department of Personnel determined that, pursuant N.J.S.A. 2C:51-2, he had forfeited his entitlement to that employment.*fn2 Moore appeals and we affirm.
The record reveals that on December 24, 1985, Moore was initially suspended and removed from his position as a senior corrections officer by the Department of Corrections (Department), effective February 18, 1986. Moore contested this suspension and removal with the Department of Personnel, resulting in a contested hearing before an administrative law judge (ALJ). On October 14, 1986, the ALJ recommended to the Board that Moore be disciplined, but that the Department's removal be vacated and that he be suspended without pay for 30 days. On November 25, 1986, the Board, at its public meeting, accepted the recommendation of the ALJ and reversed the Department's order of removal, ordering that Moore be suspended for 30 days beginning on December 24, 1985 and that he receive back pay for the period following his suspension to the date of his actual reinstatement. That order was reduced to writing on December 5, 1986.
On January 14, 1987, Moore was convicted of the harassment of his Department supervisor, in violation of N.J.S.A. 2C:33-4, in White Township Municipal Court. On February 4, 1987, the Department reinstated Moore to the payroll at the institution and simultaneously again suspended him from his position. This accorded with a preliminary notice of disciplinary action which referred to the harassment conviction and to N.J.A.C. 4:1-16.9(a)(11)*fn3 (conduct unbecoming an employee in public service). On February 17, 1987, Moore was given a departmental hearing which again resulted in his being removed from his position. The Department's final notice of disciplinary action stated:
The following charge(s) was sustained:
N.J.A.C. 4:1-16.9(a)11. Conduct unbecoming an employee in public service.
The following disciplinary action has been taken against you:
Moore again appealed to the Board. The matter was again referred as a contested matter to an ALJ, who initially decided that petitioner's "employment terminated as of January 14, 1987 [the date of his conviction]." On January 12, 1988, the Board accepted the ALJ's initial decision that the forfeiture statute applied, and that by his conviction, Moore forfeited his employment.
On appeal, Moore challenges the application of the forfeiture statute on two grounds. He first claims that he could not forfeit employment at a time when he was not employed by the Department. In the alternative, he asserts that his municipal court conviction did not "involve" or "touch" that employment. N.J.S.A. 2C:51-2 provides as follows:
a. A person holding any public office, position, or employment, elective or appointive, under the government of this State or any agency or political subdivision thereof, who is convicted of an offense shall forfeit such office or position if:
(1) He is convicted . . . of an offense involving dishonesty or of a crime of the third degree . . .;
(2) He is convicted of an offense involving or touching such office, position or employment;
We first address the question of whether Moore was employed on November 26, 1986, when the complaint which formed the basis of the conviction was filed. That date was one day after the Board had ruled at its public meeting that Moore was entitled to reinstatement and to back pay. Moore contends that he was not employed by the Department on that date for several reasons: (1) because he was employed elsewhere, (2) because the Department did not regard him as an employee, and (3) because his reinstatement was not effective until December
5, 1986, the date when the Board mailed the decision to him, relying on N.J.S.A. 52:14B-10(e) and Belleville v. Coppola, 187 N.J. Super. 147 (App.Div.1982).
We reject this position. Our review of the record persuades us that Moore was an employee on the date in question. The Department's attempt to remove him had been declared ineffective the day before. Although there were ancillary disputes about the extent of his right to back pay, none of them challenged his entitlement to pay as an employee of the Department on November 26, 1986. While N.J.S.A. 52:14B-10(e) refers to the date of mailing as the effective Board decision date, under N.J.S.A. 52:14B-10(d), the Board's public oral decision was its final decision. In Belleville v. Coppola, supra, 187 N.J. Super. at 152 we stated that the Board's oral timely decision was effective, despite an untimely delivery of the Board's written decision. Appellant does not contend that the law would permit the administrative oral final ruling to be modified in any substantive way by the subsequent written memorandum.*fn5 Our review of the apparent conflict between N.J.S.A. 52:14B-10(d) and N.J.S.A. 52:14B-10(e) persuades us that the latter section was designed to preserve the right to move for reconsideration and to appeal following receipt of notice. See N.J.A.C. 4A:2-1.6. While Moore's appeal to the Board was pending, the Department's removal was "major discipline", N.J.A.C. 4A:2-2.2, of an "employee", N.J.A.C. 4A:2-2.1. Nothing in the Administrative Procedure Act or its rules or in either Civil Service Act, the one in effect when Moore was initially disciplined or the one in effect when the Board issued its decision, describes someone in Moore's position as anything but an "employee", so long as service with the Department has not
been effectively terminated by a Board final ruling to that effect. See N.J.S.A. 11:15-4,-5; Matter of Morrison, 216 N.J. Super. 143, 151 (App.Div.1987); N.J.S.A. 11A:2-6a.
We now come to what we regard as the more difficult issue, whether Moore's conviction for a petty disorderly offense against his departmental supervisor "involv[ed] or touch[ed]" his employment. The victim of the "harassment", Michael Morris, was a corrections captain and had been Moore's long-time immediate supervisor at the time of his 1985 suspension. The municipal court merged two complaints. Morris' first complaint was that Moore made a harassing telephone call to Morris, N.J.S.A. 2C:33-4a, "using offensively coarse language and threatening to do harm". His second was that Moore harassed him by coming to his home, racing his car engine, speeding away from the house and returning, as a "course of alarming conduct or of repeatedly committed acts" whose purpose was "to alarm or seriously annoy" Morris. N.J.S.A. 2C:33-4c. Moore conceded before the ALJ that he could not challenge the fact of the conviction which followed a trial. He urged the ALJ to find that the conviction was unrelated to Moore's employment, although "part of an employment situation."
The genesis of the conviction was a claimed animosity held by Moore against Morris stemming from the 1985 disciplinary proceedings which had been the subject of the Board's reinstatement of Moore the day before Morris made his complaint. Morris had investigated the 1985 allegation that Moore was waving his arms visibly in the institution's public areas covered in a white sheet, leading inmates to believe that he was disguised as a Ku Klux Klan figure. In the administrative law hearing on this charge, Moore denied doing anything but carrying white sheets, but the ALJ concluded that Moore was guilty as charged of various disciplinary infractions: neglect of duty, creating a disturbance on State property, mental abuse of inmates, intentional misstatement of a material fact and intentional
abuse or misuse of authority or position. (These findings were never modified on appeal.)
Morris had taken a leading prosecutorial part in these proceedings. While there was no testimony concerning any confrontation between Moore and Morris from the time of the 1985 suspension and November 26, 1986, it was a fair inference from the record that Morris had complained to departmental superiors when Moore appeared on the grounds of the institution during that time, even though his presence was in connection with other employment. Whether Moore knew about that complaint was not clear. Moore testified that he kept in touch with institutional developments through his brother and by frequenting a bar also frequented by correction officers from the institution.
Our record of the harassment conviction consists of the words of the complaint, the fact of the conviction, and the testimony of Moore and Morris before the ALJ. Morris testified that on the day after the Merit System Board reinstated Moore, Moore called Morris on the telephone. According to Morris, Moore said, "oh, you like to fuck with people's lives, I'm gonna fuck with your life." Approximately 10 minutes later, Moore drove in front of Morris's home, and parked on the front lawn. Moore waited a few minutes, pulled into the driveway, raced his motor, spun his tires and sped away. Moore returned "a few moments later" parked across the street and "just sat in his truck." Morris then left his house, went to his front porch and spoke to Moore. He told Moore to stop doing what he was doing because he (Morris) had reported Moore to the authorities and he could get into trouble. Moore responded by saying "he [Moore] would do what he'd have to do." Morris testified that when Morris went to work, he found Moore's truck parked at the entrance to the institution, with Moore "observing" him.
Before the ALJ Moore testified that he made no telephone call, no threats, and never saw Morris on the day in question. He said that rain had ...