On appeal from the Superior Court, Appellate Division, whose opinions are reported at 230 N.J. Super 374 (1989).
The opinion of the Court was delivered by Garibaldi, J. Wilentz, C.J., and Clifford, Handler, Pollock, O'Hern and Stein, JJ., join in this opinion.
This appeal concerns the interpretation of N.J.S.A. 2C:51-2(a)(2), which provides that a person holding public employment shall forfeit public employment if he or she "is convicted of an offense involving or touching such office, position or employment." Moore, a senior prison corrections officer, was convicted in municipal court of harassing his supervisor, a petty-disorderly-persons offense. His employer, the New Jersey Department of Corrections ("DOC"), determined that he had forfeited his employment as a result of his conviction. The Merit System Board of the Department of Personnel ("Merit Board") and a majority of the Appellate Division also affirmed Moore's removal from his employment. Moore appeals as of right by reason of a dissent in the Appellate Division. R. 2:2-1(a)(2).
In 1975 DOC employed James Moore as a corrections officer at the Youth Correctional Institute at Annandale ("YCIA"). Moore's present employment woes began on the evening of December 23, 1985, when correctional officers looked out their windows and observed an odd spectacle. A figure covered with a white sheet was waving its arms from the courtyard. Within a few seconds inmates came to look out the windows. The words "Ku Klux Klan" sounded among the inmates. About twenty to twenty-five inmates expressed their concern at the sight of the white-sheeted figure.
The sergeant in charge commenced an investigation of the incident by calling into his office the only other correctional officers on duty. He told them that if either of them had been involved in the incident he better "fess up now or there would be big trouble." Moore then admitted to having thrown a sheet
over himself. Moore left the room and returned with a sheet, which he gave to the sergeant. Moore denies admitting that he did anything with the sheet besides throwing it over his shoulder.
The day after the incident Moore was suspended without pay. Captain Michael J. Morris, Moore's immediate supervisor, took charge of the investigation of the incident. He drafted seven charges against Moore: neglect of duty, creating a disturbance, mental abuse of inmates, intentional misstatement of a material fact, intentional abuse or misuse of authority or position, notoriously disgraceful conduct and leaving an assigned work area without permission, thereby creating a danger to persons or property. At a departmental hearing, Captain Morris acted as the prosecutor. Following the departmental hearing, Moore was removed from his position.
Moore appealed his removal to the Merit Board, which referred the matter to the Office of Administrative Law. During the time the appeal was pending, the Department forbade Moore from entering the Annandale facility and granted him no pay or benefits. Moore obtained employment as a laborer with a local trucking company.
At the hearing conducted before an Administrative Law Judge (ALJ), Captain Morris assisted the Deputy Attorney General who prosecuted Moore. The ALJ found that Moore had thrown one or more sheets over his head and had walked through the courtyard in full view of the inmates. The ALJ concluded that the evidence supported a finding of guilt on all charges except notoriously disgraceful conduct and creating a danger to persons or property by leaving an assigned work area without permission.
Nonetheless, after considering Moore's work record and concluding that Moore's conduct was not malicious, criminal, inherently evil, or committed with intent to injure, the ALJ recommended that the appropriate sentence was suspension without pay for a period of thirty days not removal. The Merit Board
announced that it accepted and adopted the findings of the ALJ. Specifically it reversed the earlier decision to remove Moore and instead imposed a thirty-day suspension on Moore and ordered that he receive back pay for the period following his suspension to the date of his actual reinstatement.
The events that led to Mr. Moore's municipal court conviction for harassing his supervisor occurred on the morning of November 26, 1986, the day after the Merit Board orally issued its order of reinstatement. Captain Morris testified that on the morning of the 26th he received a call at home from a man he identified as Moore. "You like to play with people's lives, I'm gonna . . . fuck with your life," the voice said. Later, Mr. Moore arrived at Captain Morris' home. He drove his truck onto Morris' lawn and parked it in front of the house. Thereafter, Moore drove his truck into Morris' driveway, raced his motor, spun his tires, and drove away. Moore returned in a short while and parked across the street from Morris' house. Captain Morris emerged from his house to tell Moore to stop harassing him and to warn him that he should leave because he had reported him to the police and he could get in trouble. Moore responded that "he would do what he'd have to do."
Captain Morris later went to the White Township police and signed a complaint charging Moore with two petty disorderly complaints of harassment. Specifically he charged that Moore had harassed him: (1) "by telephoning complainant using offensively coarse language, and threatening to do harm, contrary to 2C:33-4(a)," and (2) "by repeatedly committing acts with purpose to harm or seriously annoy complainant to wit: came to home and remained in automobile racing his engine, sped off at high rate of speed and returned contrary to the provisions of 2C:33-4(c)."
After Captain Morris had returned home, Moore drove slowly past his home, turned around at the end of Morris' property line, drove up, got out of his car, and just stood and watched. Captain Morris called the State police, but Moore left before the
police arrived at Morris' house. Morris then drove to work where he again spotted Moore sitting in his truck at the entrance to the Annandale prison, observing him.
After a hearing in White Township Municipal Court, in which Moore appeared pro se, he was found guilty of both charges of harassment. The court merged the second conviction into the first and assessed Moore a fine of $100.00, costs of $25.00, and a Violent Crimes Compensation Board penalty of $30.00. Moore did not appeal that conviction.
On February 4, 1987, the DOC reinstated Moore to the payroll of YCIA. Shortly thereafter, the Department served him with a Preliminary Notice of Disciplinary Action announcing that it would seek his removal for conduct unbecoming a State employee (N.J.A.C. 4:1-16.9(a)9(ii)*fn1 and for his municipal-court convictions under N.J.S.A. 2C:33-4(a) and 2C:33-4(c). After a departmental hearing Moore once again was removed from his position. The Department's final notice of disciplinary action stated: "The following charges were sustained: N.J.S.A. 2C:33-4A, N.J.S.A. 2C:33-4c, ...