On appeal from Merit System Board, Docket No. 2005-1112.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...