On appeal from a Final Administrative Action of the Civil Service Commission, Agency Docket No. 2008-3582-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...