On appeal from a Final Administrative Decision of the Merit System Board, DOP Docket Nos. 2007-92-I and 2007-508-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff and C.L. Miniman.
The opinion of the court was delivered by MINIMAN, J.A.D.
Appellant Stephen Cesare (Cesare) appeals from final agency action of the Merit System Board (MSB) affirming Cesare's removal from his position as a Senior Investigator (SI) in the Special Investigations Division (SID) at Bayside State Prison (Bayside). We now affirm.
In January of 2006, SID was investigating another Bayside employee for undue familiarity with an inmate. On January 12, 2006, Principal Investigator (PI) Cherry Davis, Cesare's immediate supervisor, gave Cesare a direct order not to have contact with that employee during business hours because the employee was under investigation.
Unrelated to that SID investigation, on January 27, 2006, inmate M.D. escaped from Bayside at about 5:18 p.m. About an hour later, members of SID contacted Cesare because they knew Cesare had a special relationship with M.D. dating back to high school. Cesare knew M.D.'s family and girlfriend. In 1984, Cesare worked for the Franklin Township Police Department, and in 1995 he worked for the Buena Borough Police Department. While Cesare was an officer with these police departments, M.D. was a confidential informant for Cesare, but M.D. engaged in criminal activity of his own over the course of many years. M.D. would often confess to Cesare, who would turn him over to the authorities. Cesare was considered a significant resource in apprehending M.D. based on this special relationship.
On January 27, 2006, PI Davis gave Cesare the opportunity to work with SID's Fugitive Unit in apprehending M.D., but he declined the opportunity due to other commitments. Although not officially working on the case, Cesare continued to provide SID members with information by phone. That night he contacted M.D.'s former girlfriend, who lived near Cesare. He also reviewed some notes he had regarding M.D. Whatever information Cesare had, he relayed to various SID members. Throughout the night he continued to receive and make telephone calls.
PI Davis believed that Cesare was becoming too active in the fugitive investigation because he seemed to be "knocking down doors." Because he had refused assignment to the investigation, Davis prohibited him from being active in it since she had concerns over command and control.
The investigation continued into the following day, and Cesare continued to receive telephone calls from SID members and PI Davis. He drove SID members around the area where M.D. might have sought shelter. At 3:00 p.m., Cesare met SI Scott McConnell of the Fugitive Unit, who asked for his assistance. Cesare, who was only a few minutes away from O'Connell's location, met him and took him past some locations where M.D. might seek shelter with his friends and family. These locations were near Cesare's personal residence. After assisting SI McConnell, Cesare went to the home of M.D.'s girlfriend again, but no one was home. Cesare then contacted Detective Ray Cavagnaro of the Vineland Police Department for more information because Cavagnaro and M.D. had a close relationship dating back many years, and M.D. had been a confidential informant for Cavagnaro.
On Sunday, January 29, 2006, at approximately 7:00 a.m., M.D. contacted Cesare at his home. They spoke for about thirty minutes, M.D. indicating that he was cold, tired, and hungry. At about 7:30 a.m., Cesare contacted PI Davis and advised her of his conversation with M.D. Then, he contacted Chief Mueller of the Fugitive Unit. In addition, Cesare relayed this information to a variety of SID investigators. He continued to receive and generate numerous telephone calls during the morning.
Around mid-morning, Cesare and his wife went to a friend's house in Millville to look at some personal items. On leaving Millville around noon, Cesare received a telephone call from M.D., who agreed to turn himself in. To entice him to do so, Cesare agreed to provide M.D. with food, take him to see his family and friends, and take him to his mother's gravesite. Cesare picked up M.D. at an industrial park in Vineland. Mrs. Cesare remained in the front seat of the vehicle while the inmate sat in the back seat. Cesare did not have his weapon or handcuffs. He took M.D. to a drive-through restaurant, stopped at his relative's house for about an hour, and took him to visit his mother's gravesite. Cesare characterized this conduct as "no big deal." He knew M.D. for years, used him as a confidential informant, and concluded that he did not pose a threat.
Sometime between 1:00 and 2:00 p.m. that Sunday, Cesare contacted SI Joseph Williams and advised him that M.D. would turn himself in at approximately 2:00 p.m. at Parvin State Park. When SI Williams arrived at the park, he was surprised to see Cesare and his wife already there with M.D. SI Williams secured the inmate, contacted the Fugitive Unit to report his apprehension, and took him to the nearest prison facility. Cesare accompanied Williams while his wife drove off.
Thereafter, an investigation ensued regarding Cesare's conduct. PI Davis directed Cesare to immediately prepare a report. He did so, but submitted it to Assistant Chief Investigator Richard McCourt, rather than PI Davis. In his report, Cesare inaccurately and falsely described how M.D. ultimately turned himself in to Cesare. He claimed that he was contacted by M.D.'s girlfriend at 1:45 p.m. on January 29, 2006. His report further stated that M.D. would turn himself in at Parvin State Park. This was untrue because M.D. was already in the custody of Cesare and his wife at 1:45 p.m. Cesare also stated in his report, "[t]o my ...