June 1, 2010
IN THE MATTER OF MICHAEL SOTTILARE, DEPARTMENT OF CORRECTIONS HUDSON COUNTY
On appeal from an administrative action of the New Jersey Civil Service Commission, Docket No. 2007-3435.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued April 26, 2010
Before Judges Lisa and Alvarez.
Petitioner Michael Sottilare appeals from the Civil Service Commission decision affirming the Hudson County Division of Personnel's termination of his employment with the county's Department of Corrections. The Commission adopted the findings of fact and conclusions of law contained in the initial decision of the Administrative Law Judge (ALJ) who heard the contested case. We affirm the determination that petitioner had engaged in such egregious conduct unbecoming a public employee as to warrant his removal from employment effective June 12, 2006.
Petitioner, after more than ten years as a corrections officer, received four preliminary notices of disciplinary action arising from events commencing on November 30, 2005, through December 23, 2005. The final incident resulted in his termination; only that adjudication is appealed.
While on leave due to an "on-the-job" injury, petitioner was videotaped working at a construction site in contravention of Hudson County's policy requiring persons on leave to remain at home unless they are receiving medical care or purchasing medication. A disciplinary charge of malingering issued as a result. Shortly thereafter, on December 23, 2005, petitioner made a telephone call to the New Jersey Policemen's Benevolent Association Local 109 (PBA Local 109) office in order to obtain legal representation for the hearing scheduled on the malingering charge and to request a postponement. Officer Shaara Marie Green, then the Vice-President of PBA Local 109, answered petitioner's phone call.
When Green testified before the ALJ, she said she told petitioner that the union could not provide him with legal representation because the Internal Affairs Unit (IAU) officers were no longer members. Petitioner had been assigned to IAU since 1995 or 1996. Green also told petitioner to obtain his own attorney, and gave him the name of the person that his attorney should contact in order to request a postponement of the disciplinary hearing.
Green also testified that after she told petitioner that PBA Local 109 could not provide him with counsel, petitioner informed her that she was under investigation, saying: "by the way, I heard your name mentioned over there." When Green asked him to elaborate, he told her that "surveillance [is] being set up on you next week by Ricky and Lenora," a reference to Sergeant Ricardo Aviles and another IAU investigator. Petitioner explained to Green that the surveillance was being initiated because she was reportedly living with an ex-inmate in violation of departmental policy. Green then asked, "why would they do that," and petitioner told her that he did not know, but advised her to "[k]eep your eyes up," and that "Lenora is the one pushing the issue."
Green immediately telephoned Aviles, then petitioner's supervisor at IAU, to report the conversation. Shortly after the call, Green went off-duty and did not file her report on the incident until she came back to work a few days after Christmas on December 28, 2005.
When Aviles testified, he confirmed that he received a call from Green about the complaint that had been filed against her; that petitioner had told Green she was the subject of an IAU investigation. Deputy Warden David Krusznis confirmed that Green was being investigated and said that disclosure of the existence of a pending IAU investigation is a violation of departmental policies and procedures, as well as of guidelines promulgated by the Office of the Attorney General.
Petitioner acknowledged having called the union office and having spoken to Green. He denied ever disclosing the pending investigation to Green, however. He claimed that Green became verbally abusive when he requested representation, asking him to explain why officers from the IAU were "always watching" her home and demanding that he tell her what was going on. Additionally, he alleged that he had been embroiled in a longstanding feud with both Green and Aviles, whom he characterized as "very, very, very good friends." He characterized Green as a liar and insisted that he had investigated her several times over the years, although he could not remember precise dates.
One of petitioner's witnesses was Ralph Green, a former Hudson County Corrections director who had supervised petitioner for some years ending with his retirement in 2004. He claimed that petitioner had investigated Green due to her relationships with former inmates on at least two occasions but he could not recall the dates or the number of these investigations. Former director Green stated that he believed that there was bad blood between Green and petitioner. Aviles, in contrast, testified that when he checked an IAU computer database he learned that petitioner had never been formally assigned to investigate Green.
Petitioner also claimed that he had an ongoing feud with Aviles. His attorney explained that it arose from an investigation he conducted into the alleged gang involvement of Aviles's brother and that Aviles's brother was arrested as a result. Petitioner later testified that another officer told him "that they decided to let [Aviles's brother] resign." Aviles denied this history and said that his brother resigned from corrections because he did not like the work and wanted to obtain other employment.
The ALJ specifically found Green to be "more believable and persuasive and more credible" than petitioner. Citing In re Phillips, 117 N.J. 567, 576-77 (1990), she explained that corrections officers, who serve in a capacity "analogous to police officers," are held to a high standard of conduct because of their sensitive positions. As a result, a conduct unbecoming charge, she opined, may be based upon "violation of the implicit standard of good behavior" to which corrections officers are expected to adhere, citing In re Emmons, 63 N.J. Super. 136, 140 (App. Div. 1960). In her view, a violation of the policies and procedures regarding confidentiality by a member of an IAU was clearly conduct unbecoming an officer. Furthermore, it was conduct explicitly prohibited in the Attorney General guidelines related to such investigatory units. Because the ALJ found Green's testimony credible and petitioner's testimony incredible, and because disclosure of the pending investigation was a serious violation of his job responsibilities, she concluded that the appropriate penalty for his conduct was removal from office. As she explained, "removal is the proper penalty based upon the egregious nature of the offenses and the fact that appellant as a law enforcement officer is held to a higher standard than other public employees."
We review administrative agency action deferentially. See In re Carter, 191 N.J. 474, 482 (2007). An administrative agency's final decision will be affirmed unless it is proven to be "'arbitrary, capricious, or unreasonable,'" or lacking in "'fair support in the evidence.'" Ibid. (citing Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963)). In other words, such a determination will be affirmed so long as it does not violate express or implied legislative policies, is based on substantial evidence, and is not clearly erroneous. See In re License Issued to Zahl, 186 N.J. 341, 353-54 (2006) (citation omitted). This deference is particularly appropriate when the agency has adopted the findings of the ALJ because the ALJ and not the agency has the opportunity to hear "live testimony" and "judge the witnesses' credibility." See Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 587-88 (1988).
Administrative agency action is entitled to this deference with respect to "disciplinary sanctions as well." In re Herrmann, 192 N.J. 19, 28 (2007) (citations omitted). We sustain the agency decision so long as there is sufficient credible evidence in the record even where we may have reached a different result. In re Taylor, 158 N.J. 644, 657 (1999). Furthermore, any sanctions imposed should be modified only if "necessary to bring the agency's action into conformity with its delegated authority." In re Polk, 90 N.J. 550, 578 (1982). The test is whether, "'in light of all the circumstances,'" the sanction is "'shocking to [the court's] sense of fairness.'" In re Herrmann, supra, 192 N.J. at 28-29 (citing In re Polk, supra, 90 N.J. at 578). As stated in Herrmann, "[t]he threshold of 'shocking' the court's sense of fairness is a difficult one, not met whenever the court would have reached a different result." Id. at 29.
On appeal, petitioner contends that even if Green's testimony is credited, and he breached the applicable confidentiality rules, termination was too severe a penalty. We do not agree. As the ALJ noted, the very purpose of an IAU is to "monitor and investigate complaints made by citizens" about the behavior of law enforcement officials. Such investigations require the highest degree of confidentiality, as they are extremely sensitive in nature and expose members of the public and officers to harm. The disclosure of a pending investigation to the target is indeed egregious conduct. In the ALJ's words, it "strikes to the heart of the officer's ability to be trusted to function appropriately in his position."
Because petitioner's breach of confidentiality displays such a fundamental lack of trustworthiness, the sanction is warranted. The termination does not shock our sense of fairness.
It is not necessary that a single instance of misconduct which constitutes the basis for a public employee's termination be criminal in nature. See In re Herrmann, supra, 192 N.J. at 36-39 (upholding an agency determination terminating an employee for non-criminal conduct). Termination is warranted whenever the employee's conduct "is unbecoming to the employee's condition or renders the employee unsuitable for continuation in the position." Id. at 33.
Lastly, petitioner contends that the ALJ erred when she refused to allow him to cross-examine Green as to any improper romantic relationships she may have engaged in while employed as a police officer. To cross-examine Green in that fashion does not establish bias against petitioner. Moreover, the ALJ did allow petitioner's attorney to cross-examine Green about the purported bad blood between the officers, which Green simply denied. Petitioner's attorney did explore the issue of bias with Green, albeit not as to her personal life. Hence, the limitation the ALJ placed on counsel's cross-examination is not a basis for reversal either.
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