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In re Mitchell


June 15, 2007


On appeal from Merit System Board, Docket No. 2005-1112.

Per curiam.


Argued May 30, 2007

Before Judges Skillman and Lisa.

This is an appeal from a final decision of the Merit System Board upholding the Department of Corrections' removal of appellant from the position of corrections sergeant for neglect of duty, conduct unbecoming a public employee, intentional abuse or misuse of authority and other sufficient causes.

On October 5, 2003, in response to a call for emergency medical response made at approximately 12:20 p.m., an inmate at South Woods State Prison was found dead in his cell of an apparent heart attack. The correctional officer who called for the emergency medical response, Boyd Myers, initially submitted a report that stated he had made the call immediately after being informed by the deceased inmate's cellmate that the inmate was "having problems" and observing the inmate in his cell apparently not breathing.

However, for several months following the original investigation of the inmate's death, the investigators received anonymous letters alleging that the death had resulted from the correctional staff's refusal to render assistance.

These allegations eventually resulted in a re-interview of Myers on April 5, 2004, at which time he informed the investigators his original report had been falsified and that he and appellant, who was his supervisor at the time, had entered the deceased inmate's cell on two occasions before he made the call for an emergency medical response. According to Myers, around 12:05 p.m., the cellmate of the inmate came to the desk and told appellant and him that the inmate "was having medical problems, and he had to pick him up off the floor a couple of times." Myers and appellant went to the cell to check on the inmate's condition. On the way, appellant said to Myers that the inmate is "probably faking" to avoid responding to a disciplinary charge the next day. When the officers arrived at the cell, appellant kicked the inmate's foot a couple of times and said, "Get the fuck up." The inmate did not get up. Appellant and Myers then left the cell.

After appellant made a telephone call to determine the inmate's medical condition, appellant and Myers returned to the cell. Appellant then said to the inmate, "If you don't tell me what's wrong, I can't help you." The inmate did not respond. As appellant and Myers were leaving the cell, appellant said, "Fuck him." Appellant then left the area.

According to Myers he returned to the cell a third time and discovered that the inmate was not breathing. Myers then called appellant, who told him to call a "Code 53," which is a medical code. The emergency medical response unit arrived a short while later and found the inmate dead.

According to Myers, appellant directed him to file a report which stated that the deceased inmate's cellmate had first reported his medical condition around 12:20 p.m. and that Myers had immediately called the Code 53, without any mention of the two prior visits to the cell by appellant and Myers, and Myers complied with this directive. Thereafter, appellant told Myers approximately five or six times "to stick to my story and stuff like that." Myers felt "intimated" by appellant's comments.

According to Myers, he and correctional officers Nardelli and Scarlato went to a bar called the Fairfield Inn on March 9, 2004. Appellant was already sitting at the bar. Myers and Nardelli sat down near appellant, and Nardelli said to him: "That's fucked up . . . what you did to Myers. . . . Alls it took was a [Preliminary Incident Report], and none of this would have been happening." Myers subsequently overheard appellant say: "If Myers takes immunity, him and his wife and kids won't be safe in New Jersey." Myers took this as a threat and became very angry. He walked to the other side of the bar and told Nardelli and Scarlato what appellant had said to him.

Sometime thereafter, Myers called Scarlato at home. Appellant answered the telephone and said, "What the fuck's up?" Although Myers did not recognize appellant's voice, Scarlato told him that appellant had been the one who had answered the telephone. Myers then heard appellant say to Scarlato in the background, "tell him it's his co-conspirator" or his "partner in crime."

Myers testified that one of the reasons he told the investigators what had really happened on the day of the inmate's death was that he felt intimidated by appellant's comments at the Fairfield Inn and when he called Scarlato's house.

Appellant denied that he ever entered the deceased inmate's cell before Myers called the emergency medical response unit. Appellant claimed that he was in the Center Control area for the entire period of time from around 11:30 when he relieved another sergeant for lunch and 12:25 p.m. when Myers made the call for the emergency medical response. Appellant also denied talking about the incident when he saw Myers, Nardelli and Scarlato at the Fairfield Inn in March 2004. According to appellant, the only conversation he had with them related to "karaoke."

Nardelli and Scarlato both corroborated Myers' version of his conversation with appellant at the Fairfield Inn. Nardelli testified that he said to appellant in a joking manner, "you messed up. If you would have just did the two minute PIR, you and [Myers] wouldn't be in this ordeal[,]" in response to which appellant said jokingly, "you're about to get your ass kicked." Nardelli also testified that Myers told him a short time thereafter, "I can't believe [appellant] just threatened me and my family. [Appellant] said to him, 'If I don't stick to my report, there's no place I could go or hide.'" Nardelli indicated that Myers was angry and "upset" when he recounted what appellant had allegedly just said to him.

Similarly, Scarlato testified that when Myers walked over to him shortly after he saw Myers talking to appellant on the other side of the bar:

He was visibly upset, slammed his beer down, and stated that [appellant] threatened him and his family if he changed the story on the case at the prison.

He was grinting and grinding his teeth, slammed his beer down. He was just -- he was just tremble in his voice, just being angry. It's a side of him I've never seen before.

Scarlato also corroborated Myers' version of his telephone call to Scarlato's house, when appellant answered the telephone, and then told Scarlato to tell Myers that it was his "partner in crime." Appellant testified that he did not have any recollection of this alleged telephone call.

To support his claim that he never entered the deceased inmate's cell, appellant presented the testimony of Jennifer Curnutte, a communications operator, who testified that appellant was with her in the "Center Control" room for the entire period of time between 11:20 a.m., when appellant relieved another sergeant, until Myers made the call for an emergency medical response.

In addition, Lieutenant Jeffrey Smith testified that he too was in Center Control when appellant allegedly went to the deceased inmate's cell and that appellant remained in the Center Control that entire time. However, the first time Smith claimed to have been in Center Control when the incident occurred was at the hearing before the ALJ on November 3, 2005, more than two years after the incident. Moreover, neither appellant, Curnutte nor the sergeant that appellant relieved testified that they saw Smith in Center Control at that time.

After hearing this evidence, the Administrative Law Judge (ALJ) to whom the case was assigned found that there was "no totally credible fact witnesses to rely upon[,]" but that "the most believable fact witness was Curnutte, and her testimony exonerates appellant." In the absence of evidence he found credible, the ALJ concluded that the Department of Corrections had failed to carry its burden of proof with respect to the charges against appellant.

The Merit System Board concluded that the ALJ's factual findings were unreasonable and contrary to credible evidence in the record. The Board concluded based on its own review of the record in light of the ALJ's findings that the Department of Corrections had proven the charges against appellant.

In concluding that the ALJ's findings were unreasonable, the Board assigned heavy weight to Nardelli's and Scarlato's testimony. Although the ALJ characterized that testimony as "inconsequential," the Board disagreed. It also found no reason to discredit their testimony:

The testimony of the appellant, Myers, Nardelli, and Scarlato demonstrates that all four were friends and socialized frequently. . . . The appellant could articulate no reason why any of them would fabricate numerous incidents that implicated him in E.M.'s death. Yet, Nardelli partially corroborated Myers' account of the conversation at the Fairfield Inn, noting that the appellant threatened to harm him, albeit jokingly, if he continued to speak of the rumors that Myers and the appellant failed to timely render medical aid to E.M. Although Nardelli and Scarlato did not hear any further statements of the appellant that evening, they testified that Myers later appeared "pissed off," and he related that the appellant had threatened his family. Nardelli also recalled trying to calm Myers down by assuring him that the appellant was not serious. Scarlato verified that the appellant was present in his garage when Myers telephoned, and he specifically recalled the appellant referring to Myers as his "partner in crime." The ALJ found that Scarlato's body language and demeanor suggested that he was credible and believable. The Board agrees with this assessment and finds no reason to discredit Scarlato's testimony. Further, the ALJ afforded Nardelli's testimony little weight because of his obvious friendship with the appellant. However, this reasoning is illogical when Nardelli's testimony actually did not support the appellant's case. A witness' partiality to a party should only serve to discredit testimony presented in support of that party. Here, Nardelli, the appellant's close friend, did not substantiate the appellant's claim that there was no discussion of E.M.'s death at the Fairfield Inn. On the contrary, Nardelli confirmed that the topic of conversation was, indeed, E.M.'s death and the involvement of the appellant and Myers, and more significantly, Nardelli corroborated Myers' claim that a threat to do bodily harm was made by the appellant. Therefore, based on the credible testimony presented by Nardelli and Scarlato, the Board finds that there was a conversation regarding E.M.'s death at the Fairfield Inn, resulting in a threatening remark by the appellant, and that the appellant referred to Myers as his "co-conspirator" or "partner in crime" during a telephone conversation between Myers and Scarlato.

Having found that the above incidents occurred, it follows that the appellant's contradictory testimony is not credible.

Finding that the appellant is not credible regarding these two incidents also calls into question his credibility regarding his whereabouts in the time frame immediately preceding E.M.'s death.

In concluding that the testimony of Smith (who the ALJ also found to be incredible) and Curnutte was incredible, the Board stated:

[Captain Harry] Chance confirmed that Curnutte was the Communications Operator on duty at the time of the incident, and Smith was present in the unit in which the [October 5, 2005] incident occurred. Chance recalled having a discussion with Smith regarding the movement of several inmates to the detention unit after the incident. Smith and Curnutte were unable to recall that this significant event even occurred. Yet, they recalled their precise location during one hour of the day of October 5, 2003, and that the appellant was in their presence for that one hour. . . . Further, other than the appellant's whereabouts during one hour on October 5, 2003 Curnutte seemed to have little recollection of anything: she had no recollection of how she came to testify at the departmental hearing, she was unable to articulate whether she was ever interviewed by an Investigator prior to the departmental hearing, and she did not remember if she was required to provide a written report.

On appeal, appellant presents the following arguments:




We reject these arguments and affirm the Board's final decision substantially for the reasons set forth therein. We add the following supplemental comments.

N.J.S.A. 52:14B-10(c) provides in pertinent part:

The agency head may not reject or modify any findings of fact as to issues of credibility of lay witness testimony unless it is first determined from a review of the record that the findings are arbitrary, capricious or unreasonable or are not supported by sufficient, competent, and credible evidence in the record. In rejecting or modifying any findings of fact, the agency head shall state with particularity the reasons for rejecting the findings and shall make new or modified findings supported by sufficient, competent, and credible evidence in the record.

Although this section of the Administrative Procedure Act, N.J.S.A. 52:14B-1 to -25, requires an agency head to extend substantial deference to an ALJ's recommended findings of fact, it does not require the agency head, here the Merit System Board, simply to rubber stamp factual findings that are not reasonably supported by the record considered as a whole.

We agree with the Board that the ALJ erred in describing Nardelli's and Scarlato's testimony as "inconsequential." One of the charges against appellant was that he had abused and misused his authority as a corrections sergeant by intimidating Myers to keep him from reporting what actually happened in the death of the inmate. One of the primary alleged acts of intimidation was the threats appellant made to Myers at the Fairfield Inn. Although neither Nardelli nor Scarlato heard the alleged threats, they did testify that Myers reported the threats to them immediately after they were allegedly made and that Myers was angry and upset at the time. Moreover, Nardelli testified that he discussed the subject of the inmate's death with appellant that night. Although appellant denied having this discussion with Nardelli, we agree with the Board that there was no basis for discrediting the testimony of Nardelli, who was one of appellant's close friends at the time. Therefore, Nardelli's and Scarlato's testimony provided substantial support for the Board's finding that appellant threatened to harm Myers and his family if Myers changed his original report indicating that appellant had not been in the inmate's cell before the call to the emergency medical response unit. It was also reasonable for the Board to infer that if appellant's testimony regarding the incident at the Fairfield Inn was false, so was his testimony that he had not entered the inmate's cell two times before Myers went to the cell a third time and found the inmate not breathing. See State v. Fleckenstein, 60 N.J. Super. 399, 408 (App. Div.), certif. denied, 33 N.J. 109 (1960).



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