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In re Rivera

March 30, 2009

IN THE MATTER OF RICHARD J. RIVERA, MONMOUTH COUNTY.


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

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

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:

PERSONS AND PLACES OF BAD REPUTATION.

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 ...


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