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In the Matter of Stephen Cesare.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


December 2, 2010

IN THE MATTER OF STEPHEN CESARE.

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted: May 26, 2010

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 surprise, when I arrived at Parvin[], [M.D.] was standing in the parking lot. I pulled up to him and he apologized for escaping." This statement was also false.

Subsequently, Cesare admitted that he falsified his report, explaining that he was afraid that he was the object of an investigation. He thought that if it was perceived that he apprehended M.D. in his vehicle with his wife and without backup, a weapon, or handcuffs, it would be a violation.

PI Rossi concluded that Cesare failed to keep the Fugitive Unit properly apprised of his activities. Cesare's relationship with M.D. caused him to relax or violate serious security measures, such as not having a weapon, backup, or handcuffs, and he should not have apprehended an escapee while he was with his wife.

On May 4, 2006, SID investigators obtained subscriber information for Cesare's personal cellular phone. From that information, SID determined that Cesare had provided his personal phone number to M.D. and M.D.'s girlfriend in violation of Department of Corrections policy. The SID investigators also determined that Cesare had made thirty-five calls during working hours to the Bayside employee whom PI Davis told him not to contact.

Two preliminary notices of disciplinary action were issued on March 14 and June 14, 2006. Cesare was charged in all with insubordination, contrary to N.J.A.C. 4A:2-2.3(a)(2); conduct unbecoming a public employee, contrary to N.J.A.C. 4A:2-2.3(a)(6); neglect of duty, contrary to N.J.A.C. 4A:2-2.3(a)(7); other sufficient cause, contrary to N.J.A.C. 4A:2-2.3(a)(11); "[n]eglect of duty, loafing, idleness or willful failure to devote attention to tasks which could result in danger to persons or property," contrary to Human Resource Bulletin (HSB) 84-17(B-2); "[i]ntentional mis-statement of material fact in connection with work, employment, application, attendance, or in any record, report or other proceeding," contrary to HSB 84-17(C-8); "[i]ntentional disobedience or refusal to accept order, assaulting or resisting authority, disrespect or use of insulting or abusive language to supervisor," contrary to HSB 84-17(C-9); conduct unbecoming an employee, contrary to HSB 84-17(C-11); "[i]mproper or unauthorized contact with inmate -undue familiarity with inmates, parolees, their families, or friends," contrary to HSB 84-17(D-4); "[v]violation of administrative procedures and/or regulations involving safety and security," contrary to HSB 84-17(D-7); and "[v]violation of a rule, regulation, policy, procedure, order or administrative decision," contrary to HSB 84-17(E-1).

On June 26, 2007, Cesare received an amended Final Notice of Disciplinary Action suspending him for thirty days and demoting him to his previous position as a Senior Corrections Officer. On July 3, 2006, Cesare received his second Final Notice of Disciplinary Action removing him from employment effective June 19, 2006. The matters were docketed by the Office of Administrative Law (OAL) on September 8 and 12, 2006. A pre-hearing conference was held on December 5, 2006, at which time the matters were consolidated, and hearings were conducted before an Administrative Law Judge (ALJ) on October 4 and 16, 2007. The ALJ confirmed the removal and issued his Initial Decision on November 2, 2007. On December 20 and 27, 2007, Cesare filed exceptions to the Initial Decision. Thereafter, the MSB issued its Final Administrative Action on January 30, 2008, affirming Cesare's removal from his position at Bayside. The MSB dismissed Cesare's appeal of his thirty-day suspension and demotion as moot. This appeal followed.

Cesare contends that the decision of the MSB was arbitrary, capricious and unreasonable and not supported by substantial evidence in the record. He further contends that the decision to terminate his employment was inconsistent with the absence of any prior disciplinary history and the concept of progressive discipline.

The judicial role in reviewing decisions of administrative agencies is restricted to the following four inquires:

(1) whether the agency's decision offends the State or Federal Constitution; (2) whether the agency's action violates express or implied legislative policies; (3) whether the record contains substantial evidence to support the findings on which the agency based its action; and (4) whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors. [George Harms Constr. Co. v. N.J. Tpk.

Auth., 137 N.J. 8, 27 (1994) (citations omitted).]

Accordingly, "[o]ur function is to determine whether the administrative action was arbitrary, capricious or unreasonable." Burris v. Police Dep't, W. Orange, 338 N.J. Super. 493, 496 (App. Div. 2001) (citing Henry v. Rahway State Prison, 81 N.J. 571, 580 (1980)). The precise issue is whether the findings of the agency could have been reached on the credible evidence in the record, considering the proofs as a whole. Close v. Kordulak Bros., 44 N.J. 589, 599 (1965).

The burden of demonstrating that the agency's action was arbitrary, capricious or unreasonable rests upon the person challenging the administrative action. McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 563 (App. Div. 2002); Barone v. Dep't of Human Servs., Div. of Med. Assistance & Health Servs., 210 N.J. Super. 276, 285 (App. Div. 1986), aff'd, 107 N.J. 355 (1987).

After carefully reviewing the record in light of the written arguments advanced by the parties, we conclude that the issues presented by Cesare are without sufficient merit to warrant discussion in this opinion, R. 2:11-3(e)(1)(E), and we affirm substantially for the reasons expressed by the ALJ and the MSB in their written opinions. Their findings and conclusions are supported by substantial, credible evidence in the record, and the imposition of the discipline of termination was not arbitrary, capricious or unreasonable given the facts of this case. See Burris, supra, 338 N.J. Super. at 496; Close, supra, 44 N.J. at 599.

Affirmed.

20101202

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