On appeal from a Final Administrative Decision of the Merit System Board, Docket No. 2006-381; and Superior Court of New Jersey, Law Division, Cape May County, Docket No. L-93-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Carchman, Lihotz and Ashrafi.
These two appeals, argued back-to-back and consolidated for the purposes of our opinion, relate to the dismissal of Dean J. Spencer from his employment with the County of Cape May (the County). In the first matter (A-0239-08T2), the County appeals from an August 28, 2008 final administrative action denying reconsideration of a February 28, 2008 decision by the Civil Service Commission (the Commission), which affirmed an ALJ determination downgrading the charges against Spencer, reinstating his County employment, awarding him back pay, and granting counsel fees.*fn1 Spencer cross-appeals from that portion of the determination mitigating his back pay.
In the second matter (A-5344-08), Spencer appeals from two Law Division orders granting summary judgment in favor of defendants and dismissing his complaint, which alleged negligence, malicious prosecution, interference with contractual benefits, and intentional infliction of emotional distress by defendants Ocean City Board of Education (BOE), BOE employees Dr. Donald Dearborn, Dr. Joanne Walls and Kathy Sykes, and County employees Diane Lanzetta and Eileen Maguire.
We have considered the arguments made in light of the record and applicable legal standards. We affirm.
We relate the facts relevant to Spencer's termination. In 1999, Spencer began working full-time for Ocean City High School (OCHS) as an instructional, one-on-one student aide.*fn2 On September 1, 2004, he was hired as one of the school's two security officers. Spencer's principal function was to monitor the security control booth of the school's state-of-the-art digital surveillance system. The booth contains monitors for sixty-four security cameras installed throughout the school. Spencer's normal work day was from 7:30 a.m. to 3:30 p.m. When he was hired, OCHS knew Spencer worked for the County and gave him permission to make limited telephone calls during the OCHS work-day.
Spencer was also employed by the County in the titled position of "social worker juvenile rehabilitation," more commonly referred to as a juvenile Intensive Supervision Program (JISP) officer. JISP monitors juvenile offenders on a daily basis as an alternative to detention. Each juvenile receives two telephone calls per day and two face-to-face visits per week from an assigned JISP officer. In addition to responding during designated daily times, each of the five County JISP officers were required to respond to any emergency calls regarding juveniles assigned to their charge twenty-four hours per day, seven days per week. The County knew Spencer was employed at OCHS and believed his interaction with the students was beneficial, as he would know whether JISP clients were attending school. Spencer's County work schedule was nineteen hours each week as follows: 6:00 p.m. to 10:00 p.m. Monday, Tuesday, Wednesday and Friday; and 7:00 p.m. to 10:00 p.m. on Thursday.
On February 2, 2005, Spencer was asked to work an extra shift the following day, a Thursday, because the OCHS night shift security officer was unavailable. Spencer agreed he would work from 4 p.m. to 8 p.m., leaving as soon as the varsity basketball game ended.
Later that week, in a conversation with Sykes, the assistant varsity cheerleading coach, Spencer mentioned he saw Margaret DeFelice, the head cheerleading coach, "shimmying" during the team's pre-game practice. Spencer told Sykes he watched the practice while in the surveillance booth via the security cameras. Sykes requested a different security officer review footage of the practice. A duplicate of the security video was given to Sykes covering the February 3, 2005 practice from 4:15 p.m. to 5:48 p.m.
After reviewing the video, notifying DeFelice and the teachers' union representative, Sykes submitted a written statement to OCHS Principal Walls. Walls viewed the tape and concluded there was no reason for Spencer to be watching the cheerleaders "the way that he did." Walls referred the matter to BOE Superintendent Dearborn. On February 10, 2005, Dearborn met with Spencer, two teachers' union representatives, and Walls. At the conclusion of that meeting, Dearborn terminated Spencer's OCHS employment based on his "misuse of public property, infringement of privacy rights and betrayal of the trust of his position."
Over that weekend, the Atlantic City Press published a story regarding Spencer's termination for improper use of the school's security system. Based on the contents of the article, the County suspended Spencer as a JISP officer the following Monday. Formal action was taken on February 15, 2005, charging Spencer with conduct unbecoming a public employee. An amended preliminary notice of disciplinary action specified these charges:
While employed at [OCHS] you misused security equipment during the course of your employment, neglected your required duties, breached the trust of the students and faculty, as well as invading the privacy of said students by utilizing security equipment to surreptitiously record their activities and inappropriately zooming in on body parts without their knowledge, thereby engaging in conduct unbecoming a public employee.
During the course of your employment at [OCHS], you did inappropriately perform duties of a [J]ISP Worker and received payment from both entities for the same time-period.
Following departmental hearings conducted to review the charges against Spencer, dismissal was sustained. Spencer was served with a Final Notice of Disciplinary Action on June 14, 2005, and immediately removed from his JISP position. Spencer timely appealed his termination to the Commission, which designated the matter as a contested case and referred it to the Office of Administrative Law (OAL). N.J.S.A. 52:14B-1 to -15 and N.J.S.A. 52:14F-1 to -13.
The County's appeal centers on the hearing conducted by an Administrative Law Judge (ALJ). Several OCHS employees testified, during the administrative hearing,*fn3 including four who had viewed the videotape depicting Spencer's view of the security monitors that recorded the cheerleaders' practice from two separate cafeteria camera angles.*fn4 Sykes stated she "felt like a peeping-Tom" while watching the video tape. She admitted that the portions of the report she submitted to the principal alleging the camera zoomed-in on students' private parts were not substantiated by the tape footage. Sykes acknowledged the cheerleaders' practice was public and that other students were simultaneously present in the cafeteria, but equated Spencer's camera-viewing to staring.
DeFelice expressed her opinion that the filming of the cheerleaders was inappropriate and violated the students' personal privacy. She admitted her personal dislike for Spencer based on past comments he had made.
Walls agreed it was acceptable to watch the cheerleaders practice in the cafeteria, yet maintained the students would be embarrassed if they knew they were being watched on the surveillance camera. Moreover, she asserted Spencer should have been watching the whole school, not just the cheerleaders.
The Assistant Principal Nicholas Salvia agreed Spencer had no reason to move the security camera from its default position to view all the cheerleaders. However, he admitted OCHS had no written protocol regarding the operation of the cameras and confirmed a paintball gun incident had occurred in the cafeteria five days earlier. Salvia stated Spencer was "a good employee."
Lanzetta, the County Director of Human Services charged with oversight of the JISP, also testified. After viewing the tape, she did not initially form an opinion as to whether Spencer's behavior was improper. Then, after reviewing the tape several times, she concluded Spencer must have enjoyed watching the cheerleaders practice, and such conduct, performed in his official capacity, "represent[ed] an inappropriateness" that posed a problem for someone supervising juveniles. She expressed a JISP officer "should not be entertained by looking at an adolescent [for] who[m he has] supervisory control" and must not look at a juvenile "for pleasurable purposes." Lanzetta identified those panned shots devoid of security concerns that she found objectionable, including a zoomed shot showing the lower-body of two cheerleaders, then the floor. She recognized that during his seven years working as a JISP officer, Spencer's record was devoid of disciplinary actions or complaints of inappropriate conduct.
Dale Allen Roach, a JISP officer, testified that while attending a meeting, he heard Lanzetta state she saw no basis for Spencer's firing. Further, Roach insisted Lanzetta agreed with him that Spencer was the "victim of a witch hunt." Retaking the stand, Lanzetta clarified the statements she recalled making at the meeting. She stated Spencer had done nothing "illegal" or possibly nothing "inappropriate," and she denied agreeing with Roach, suggesting her statement was, "I would not exactly call it a witch hunt."
Blake Moore, a retired Middle Township Police Department detective, was the coordinator of the County's JISP and Spencer's immediate supervisor. Moore testified he watched approximately thirty minutes of the tape. He stated that although he could not offer an opinion as to whether the tape showed anything improper because he did not know Spencer's duties at OCHS, the images made him "uncomfortable." When the ALJ asked why, he responded, "unless I was specifically designated and told by my supervisor, that  my job was to view the cheerleaders, I do not believe I would do it."
Spencer testified on his own behalf. He stated the BOE had no rules or regulations regarding how a security officer was to operate the security system. Generally, he learned on his own. He believed his primary function was simply to monitor the school, and he decided what to monitor using common sense.
Discussing the events of February 3, 2005, Spencer stated it was the second time he worked the night shift at OCHS. He was unaware the cheerleaders were practicing until he went to the cafeteria for a soda at approximately 4:15 p.m. Spencer was concerned because he had not noticed the practice while looking at the monitors and made a mental note to be sure he could view the students.
Spencer knew many of the current squad members because his daughter had been an OCHS cheerleader. That evening, the cheerleaders practice was the single largest group activity, in addition to the basketball games. Spencer made surveillance of the practice and the cheerleaders' protection "a priority," and adjusted a single freestanding camera away from the school's front entrance to the cheerleaders' cafeteria practice area. Spencer justified his decision by stating: 1) concerns were high following a male student being caught targeting female students with a paintball gun in the cafeteria on January 29, 2005; 2) the west wall exit door was located next to the cheerleaders; and 3) any injury suffered by a practicing cheerleader might require an immediate call to the rescue squad.
Spencer described the procedure he followed that evening when monitoring the eight security screens in the booth. He stated one screen always contained a "map of the school" showing all the monitoring spots. One viewer was a split-screen showing one-inch-by-one-inch pictures of sixteen camera views. Another showed four-split-screen camera views displaying images of the basketball games. The remaining cameras were single views aimed on the ...