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In re Rivera


March 30, 2009


On appeal from the Department of Personnel, Merit System Board, DOP Docket No. 2006-2546.

Per curiam.


Argued February 24, 2009

Before Judges Skillman, Graves and Ashrafi.

Richard J. Rivera, a county corrections officer assigned to the Monmouth County Correctional Institute (MCCI), appeals from a final decision of the Merit System Board*fn1 (Board) suspending him for ten days without pay for violating Rule 4.1.28 of the Monmouth County Sheriff's Department, which provides as follows:


Members and employees shall not maintain social, emotional, sexual, business, or financial associations with current offenders or offenders discharged in the past two years. They shall not knowingly frequent places of bad reputation, nor associate with any persons convicted of a crime or of bad reputation, except as may be required in the course of duty.

On appeal, Rivera contends the rule is unconstitutionally vague, both on its face and as applied to him. We reject these arguments and affirm the Board's final decision.

The essential facts are undisputed and were summarized by the Administrative Law Judge (ALJ) as follows:

In 2002 [Rivera] purchased a home with Renee Davis, who it develops was on probation between September 1999 and September 2004 for various criminal offenses. A credit history completed during closing on the home revealed to [Rivera] that Ms. Davis had outstanding fines stemming from her probation. It is at this point at the latest that he became aware of her criminal history. [Rivera] did not report the matter and testified that he did not know this was required. He acknowledged receiving the MCCI rules, but thought that the rule in question, 4.1.28 applied only to persons that had been incarcerated. [Rivera] and Ms. Davis had a child together in 2003.

Lt. Glenn Bong[i]ovi testified that MCCI policy requires corrections officers to disclose relationships with "current offenders" which includes probationers. The rule is intended to give the Institution notice of potentially problematic associations so that any necessary steps can be taken.

In assessing Rivera's claim that the rule in question is void for vagueness, the ALJ noted that "[p]robation is a sentence short of incarceration," and he concluded that "a reasonable corrections officer" would understand that the rule includes "anyone convicted of a crime that has yet to complete their sentence." Similarly, the Board determined that the rule clearly refers not only to those offenders who are presently incarcerated, but also to those who are serving probationary sentences.

The void for vagueness doctrine invalidates legislation or regulatory action that fails to provide adequate notice to those individuals who are subject to it. State v. Cameron, 100 N.J. 586, 591 (1985). "[T]he vagueness doctrine is essentially a procedural due process concept grounded in notions of fair play." State v. Emmons, 397 N.J. Super. 112, 124 (App. Div. 2007), certif. denied, 195 N.J. 421 (2008) (internal quotations omitted).

"The degree of vagueness that the Constitution tolerates---- as well as the relative importance of fair notice and fair enforcement----depend in part on the nature of the enactment." Cameron, supra, 100 N.J. at 591. For example, "[p]enal laws... are subjected to sharper scrutiny and given more exacting and critical assessment under the vagueness doctrine than civil enactments." Id. at 592; see also State v. Lee, 96 N.J. 156, 166 (1984) ("A defendant should not be obliged to guess whether his conduct is criminal. Nor should the statute provide so little guidance to the police that law enforcement is so uncertain as to become arbitrary."). Several other factors must also be considered:

In either a facial or as-applied vagueness attack, the level of judicial scrutiny and degree of required clarity will depend on the purpose of the statute, the context in which the law is challenged, the conduct that is subject to its strictures, the nature of the punishment that is authorized, and, finally, the potential impact of the statute upon activities and interests that are constitutionally protected. [Cameron, supra, 100 N.J. at 594.

To successfully assert a facial vagueness challenge, a party must demonstrate that the rule or regulation "is impermissibly vague in all of its applications." Village of Hoffman Estates v. Flip-side, Hoffman Estates, Inc., 455 U.S. 489, 497, 102 S.Ct. 1186, 1193, 71 L.Ed. 2d 362, 371 (1982); accord Cameron, supra, 100 N.J. at 593 ("A statute that is challenged facially may be voided if... there is no conduct that it proscribes with sufficient certainty."). In this case, the rule is not facially vague because it clearly and unequivocally applies to a number of situations. For example, Rivera concedes that the rule "regulates Corrections Officers' relationships with those who are or were incarcerated at MCCI or, potentially, another facility."

Rivera also claims that the second sentence of the rule is facially vague "due to the failure of the County to define, with sufficient clarity, persons and places of bad reputation." But Rivera lacks standing to challenge that part of the rule because he was not disciplined under the "bad reputation" clause of the rule. See City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 796, 104 S.Ct. 2118, 2124, 80 L.Ed. 2d 772, 781 (1984) (noting "the general rule that a litigant only has standing to vindicate his own constitutional rights"); see also State v. Chepilko, ___ N.J. Super. ___ (App. Div. 2009) (slip op. at 8) (concluding that defendant lacked standing to challenge the constitutionality of municipal ordinances governing the issuance of "special events" permits because defendant never applied for such a permit).

In his as applied vagueness challenge, Rivera argues that the rule is unconstitutionally vague with respect to his particular conduct. According to Rivera, he reasonably believed that the rule was inapplicable to his situation because Davis was never incarcerated at the MCCI, where he worked. Nevertheless, the ALJ and the Board both concluded that "a reasonable corrections officer viewing the rule as a whole" would have known that the rule clearly applied to Rivera's situation because he was "living with an individual with a known criminal conviction," who was "serving part of her sentence for that conviction." We agree that the rule clearly applied to Rivera's circumstances. As every corrections officer knows, or should know, a serious conflict of interest could arise if a corrections officer maintained a close relationship with a probationer who violated his or her probation and became incarcerated. See Bowden v. Bayside State Prison, 268 N.J. Super. 301, 305-06 (App. Div. 1993) ("The need for proper control over the conduct of inmates in a correctional facility and the part played by proper relationships between those who are required to maintain order and enforce discipline and the inmates cannot be doubted.").

"Whether a regulation is valid is a question of law." In re Six Month Extension of N.J.A.C., 372 N.J. Super. 61, 93 (App. Div. 2004). Consequently, our review of the Board's final decision is de novo. See Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85, 93 (1973) (holding that appellate court is not bound to an "agency's interpretation of a statute or its determination of a strictly legal issue"). Nevertheless, we find no fault with the Board's findings and conclusions, and we affirm substantially for the reasons set forth in the Board's final decision.


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