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In re Johnson

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 28, 2010

IN THE MATTER OF TERRENCE JOHNSON.

On appeal from a Final Administrative Action of the Civil Service Commission, Agency Docket No. 2008-3582-I.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted June 9, 2010

Before Judges Cuff and Payne.

Terrence Johnson, a Senior Corrections Officer employed by the Department of Corrections (DOC) with approximately twenty years of service, appeals from his termination for falsifying two reports regarding incidents in which he was observed to be talking on a cell phone and for utilizing a cell phone, contrary to DOC regulations, within the facility to which he was assigned, the Jones Farm satellite unit of the DOC's Central Reception and Assignment Facility (CRAF).

The record supports the conclusion that, on September 28, 2007, Johnson was assigned to supervise a work crew cutting weeds outside the perimeter of the New Jersey State Prison. Lieutenant Brian Schmelia, a DOC employee responsible for the supervision of work details throughout the State, tried to reach Johnson by two-way radio to discuss a traffic safety concern at the work site, but he was unsuccessful. Schmelia then drove to Johnson's work location, where he observed Johnson on his cell phone for an extended period of five to ten minutes, during which time the inmates participating in the work detail were unsupervised. Believing the practice to be prohibited, Schmelia asked Johnson "what the deal was with the cell phone." According to Schmelia, Johnson responded that he was speaking to his sister, and he facetiously invited Schmelia to speak with her as well. Johnson claims that he told Schmelia that he was speaking to his sister regarding an emergency. In any event, Schmelia instructed Johnson that he should not be on the phone.

Schmelia wrote a report regarding the incident. Additionally, he reported it to Sergeant Allen Glenn, Johnson's supervisor, who had arrived at the work site after the initial conversation between Schmelia and Johnson. In response, Glenn questioned Johnson as to why he was on the phone, and he was told by Johnson that he was speaking to his sister regarding an emergency. At the conclusion of the conversation between Glenn and Johnson, Glenn ordered Johnson to "pack his crew up and go back to Jones Farm, and to write me a report about what happened."

Once back at CRAF, Johnson did so, stating in his report:

Sir on this date and approx time I spoke to Lt. Shamilia [sic] when he arrived on sight [sic] about a procedure that changed on the Route[.] [A]t no time was anything mentioned of a cell phone.

Johnson was observed by Lieutenant Clarence Van Pelt, then the Jones Farm supervisor, to be on his cell phone while sitting in the officer's dining room (ODR) at CRAF writing his report. When Van Pelt instructed Johnson to take the cell phone to his car, Johnson instead merely placed it in his pocket. According to Van Pelt, there is a big sign near the door of the CRAF facility stating that electronic devices beyond that point are not permitted. Additionally, the DOC has a written policy prohibiting personally owned electronic communication devices, which states:

Personally owned electronic communication devices are not permitted in any location in the Farm, and all Departmental employees are required to secure their personally owned electronic communication devices in their locked personal vehicle.

Van Pelt wrote up the incident at CRAF. Additionally, at the direction of Captain J. Keil, Johnson wrote a report regarding the dining room incident, which stated:

Sir on this date & approximate time when I SCO T. Johnson Sr. returned to Jones Farm with my detail, I went to my vehicle and put my personal items and my phone in my car. I ran into Sgt. Van Pelt[. H]e said don't forget to fill out my report on the incident that happened earlier that day while out on my detail. While writing my report in the ODR Sgt. Van Pelt came in and we spoke about the earlier incident[. A]fter completing my report, I gave my report to Sgt. Van Pelt and went to CRAF to work overtime[. A]t no time did I have a phone in the ODR.

On October 19, 2007, Johnson was charged with violations of the DOC's regulations as set forth in its Human Resource Bulletin (HRB), consisting of careless control of a cell phone, HRB 84-17 as amended 6(a); violation of administrative procedures and/or regulations involving safety and security, HRB 84-17, as amended 7; and falsification, HRB 84-17 as amended C8. The charges were sustained at a departmental hearing, and on March 3, 2008, the DOC issued a Final Notice of Disciplinary Action removing Johnson from his position as a Senior Corrections Officer. Johnson then appealed to the Civil Service Commission, which referred the matter to the Office of Administrative Law (OAL) for a hearing as a contested matter.

Following an administrative hearing in the OAL, the Administrative Law Judge (ALJ) found that competent evidence provide by Schmelia, Glenn and Van Pelt supported the two charges of falsification and the charge that Johnson utilized a cell phone within the CRAF facility - a prohibited practice. The ALJ found that Johnson had not violated any regulation prohibiting cell phone use while outside New Jersey State Prison, since such use was not prohibited.

In reaching his factual conclusions, the ALJ rejected Johnson's explanation of his statement in the first report that "at no time was anything mentioned of a cell phone." At the hearing Johnson had stated he was rushed when writing the report and didn't think his cell phone use was significant. The ALJ stated:

I do FIND that Johnson did fabricate the report (R-6) regarding his conduct with the cell phone at the State Prison. Johnson's statement that "at no time was anything mentioned of a cell phone" is completely false. His explanation that he was rushed and did not think the cell phone was much of an issue does not excuse this falsification. He testified to knowing that Schmelia was "pissed" about his using the cell phone, and Johnson testified that he told Van Pelt he had to write a report about the cell phone. He clearly was on notice that the cell phone issue was the central part of the report being sought by Glenn and Schmelia. To say that nothing was mentioned of a cell phone during his interaction with Schmelia defies the facts.

Additionally, the ALJ rejected Johnson's denial that he utilized a cell phone while at CRAF. The ALJ held:

I further FIND that Johnson was on the cell phone in the ODR as testified to by Van Pelt. Van Pelt, like respondent's other witnesses, was credible. They all got along well with Johnson and had no reason or motivation to fabricate their testimony. Van Pelt's testimony about seeing Johnson in the ODR on the cell phone was detailed and consistent with his report. He testified to being only two feet away from Johnson when he saw him on the phone. It also is clear from the evidence that the Jones Farm facility had a policy prohibiting cell phones on site and a big sign at the entrance advising that cell phones are prohibited.

Johnson's testimony denying his use of a cell phone in the ODR did not seem credible at all. His testimony was hesitant and seemed fabricated. Further, at the time he was alleged to be on the cell phone he was writing a report where he was falsifying information about what happened earlier with Schmelia. As noted above, I FIND that he did fabricate that report. I further FIND that he was on the cell phone in the ODR based on the very credible testimony of Van Pelt.

Noting Johnson's extensive prior disciplinary history, the ALJ recommended removal.

The Civil Service Commission adopted the ALJ's recommendations in a final decision dated December 5, 2008. Johnson then appealed.

On appeal, Johnson challenges the ALJ's factual findings, and he argues that his termination was contrary to principles of progressive discipline. We reject Johnson's position and affirm.

In a similar disciplinary matter, the Supreme Court held:

Courts have a limited role in reviewing a decision of an administrative agency. Ordinarily, an appellate court will reverse the decision of the administrative agency only if it is arbitrary, capricious or unreasonable or it is not supported by substantial credible evidence in the record as a whole. Campbell v. Department of Civil Service, 39 N.J. 556, 562 (1963). [Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980).]

We are of course bound by that standard in our review of this case and, having carefully reviewed the record, we find no grounds for reversal, there being ample evidence to support the conclusions of the ALJ and the Commission, which cannot in the circumstances presented be deemed arbitrary, capricious or unreasonable.

We likewise find no basis for disturbing the Commission's determination to remove Johnson from his employment by the DOC. Johnson wrote two reports that were patently false, and he violated DOC regulations pertaining to the use of cell phones after an incident earlier in the day when his use of a phone was called into question. In addition to these offenses, Johnson had been disciplined on thirty-three prior occasions, receiving counseling on one occasion, sixteen official reprimands, three fines in lieu of suspension, and thirteen suspensions: one of ninety days; one of thirty days; three of fifteen days; three of ten days; one of three days; one of two days; and three of one day. Johnson's offenses included leaving his post, several instances of insubordination, sexual harassment, several violations of regulations, neglect of duty, and multiple instances of absence without permission and unsatisfactory attendance.

Johnson's past record "may be resorted to for guidance in determining the appropriate penalty for the current specific offense." West New York v. Bock, 38 N.J. 500, 523 (1962). We find that both the ALJ and the Commission utilized Johnson's record appropriately in that fashion. Further, we accord substantial deference to the Commission's sanction. In re Herrmann, 192 N.J. 19, 36 (2007). As a consequence, we find no legal basis for reversal and reinstatement in this case.

Affirmed.

20100728

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