On appeal from the Civil Service Commission, Docket No. 2007-4566.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad and Fisher.
Linda Reid appeals from the final determination of the Civil Service Commission (the Commission) sustaining the charges of conduct unbecoming a public employee, N.J.A.C. 4A:2-2.3(a)(6), and other sufficient cause, i.e., filing a false report, N.J.A.C. 4A:2-2.3(a)(11), and the sanction of removal from her position as a Senior Corrections Officer (SCO) at Riverfront State Prison. We affirm substantially for the reasons set forth in the Administrative Law Judge's (ALJ) initial decision of November l4, 2008.
Appellant began working as a corrections officer at Riverfront State Prison on July 26, 2002. As a result of an incident occurring on August 6, 2005, appellant was charged with assaulting an inmate and filing a false report in which she represented she had been the victim. The charges were sustained at a departmental hearing and on April 25, 2007, appellant was removed from employment. Following an appeal, the contested case was transmitted to the Office of Administrative Law and a hearing was conducted on April 30, 2008. Testimony and evidence were presented by Captain Tommy Stahl regarding the internal affairs investigation, which concluded that appellant had assaulted an inmate and misrepresented that she was the victim; SCOs Cherril Davis and Dyshella Kee who were eyewitnesses to the incident and reported that the inmate used profanity towards appellant but did not strike her, and that appellant beat the inmate and falsely claimed he assaulted her; and nurse Evelyn Mamuyac who observed only a slight swelling on appellant's right cheek and lower lip. Appellant testified that the inmate used profanities indicating he had to use the restroom after which an argument ensued and the inmate pushed her and hit her in the face, causing swelling to the right side of her face and lip and resulting in a scar under her right eye. She further testified to her exemplary performance assessment review from June l5, 2004 through June l4, 2005. Appellant also presented as a character witness the testimony of Lieutenant Chaney, a former sergeant at Riverfront.
On November l4, 2008, ALJ James-Beavers issued an initial decision, making express credibility assessments and finding appellant engaged in the charged conduct. The ALJ found SCOs Davis and Kee testified credibly that they observed the entire incident, saw appellant strike the inmate, and neither saw the inmate assault appellant. Based on several inconsistencies in appellant's testimony, set forth in detail, the ALJ discredited appellant's version of the events as self-serving. The ALJ concluded that appellant was not hit by the inmate and, therefore, intentionally misstated a material fact in connection with the incident and falsified her report, supporting the charge of "other sufficient cause." ALJ James-Beavers also found that appellant struck the inmate in anger at being disrespected and thus engaged in "conduct unbecoming a public employee."
In determining the appropriate sanction, the ALJ considered appellant's status as an SCO, which "subjects her to a higher standard of conduct and responsibility than is required of other public employees." See Moorestown Twp. v. Armstrong, 89 N.J. Super. 560, 566 (App. Div. l965) (recognizing that a law enforcement officer is "a special kind of public employee"), certif. denied, 47 N.J. 80 (1966). The ALJ found this conduct so egregious as to warrant removal despite the absence of a disciplinary history, stating:
A correction officer must be trusted to give accurate accounts of occurrences at the prison. [Appellant] is not constantly watched by a supervisor and may be required to give testimony. With this incident, she has created a situation in which her fellow officers do not trust her to tell the truth.
Thus, this is the type of conduct that is so egregious as to warrant removal despite the absence of a disciplinary history.
On January l6, 2009, the Commission issued a final determination adopting the ALJ's initial decision as to the charges and the sanction of removal. This appeal ensued.
Appellant challenges the agency's determination on the charges as not based on sufficient credible evidence in the record. She further contends the penalty of removal is not reflective of progressive discipline and requests we exercise original jurisdiction, R. 2:10-5, and reduce the sanction.
Given our limited standard of review and the deference afforded an administrative agency, see In re Taylor, 158 N.J. 644, 656-57 (1999); Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980), we conclude that appellant's arguments are without merit. We defer to the credibility determinations of an ALJ. Clowes v. Terminix Int'l, Inc., l09 N.J. 575, 587 (1988). We will not reverse an agency's decision unless it is "arbitrary, capricious, or unreasonable, or . . . it lacked fair support in the evidence. . . ." Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963).
ALJ James-Beavers clearly articulated her reasons for finding the testimony of SCOs Davis and Kee credible and for disbelieving appellant's testimony. The witnesses consistently said they observed appellant punching the inmate but did not see the inmate hit appellant. The ALJ found neither officer had any resentment of appellant or any reason to fabricate testimony. In contrast, the ALJ found appellant's testimony to be inconsistent and self-serving, commenting, for example, that no previous report by appellant or any medical personnel noted any broken skin that would lead to a scar. The fact appellant had some minor injury to her lip and face did not require a finding that she was struck by the inmate. The slight swelling could easily have occurred during appellant's confrontation with the inmate prior to SCO Davis pulling appellant off of him. ...