On appeal from the Civil Service Commission, Docket No. 2010-1210.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Carchman and Baxter.
Appellant Toshena Griffin, a senior corrections officer (SCO), appeals from a final decision of the Civil Service Commission (CSC) sustaining disciplinary charges of conduct unbecoming a public employee, N.J.A.C. 4A:2-2.3; and a violation of a rule, regulation, policy, procedure, order or administrative decision, namely the prohibition of electronic communication - devices within designated areas of New Jersey Correctional facilities, HRB 84-17, and PSM.001.017. As a result, the CSC imposed the penalty of removal from her public employment as a Senior Corrections Officer at Bayside State Prison. We affirm.
We briefly set forth the relevant facts emerging from the record developed at the hearing before the Office of Administrative Law.
Griffin was employed as an SCO by the Department of Corrections (DOC) from 2001 until September 24, 2009. During this period, Griffin worked a general assignment, including daily assignments to fill in for corrections officers who were not on duty, at Bayside State Prison in Leesburg.
On June 24, 2009, Wilburt Little, an inmate at Bayside, alleged that he had been assaulted by Bayside staff members, including Griffin and Dawn Linthicum, another female corrections officer and personal friend of Griffin. Little alleged that Griffin had shown him her cell phone and said she was going to call other officers and "get him." DOC investigated Little's complaint and assigned DOC Senior Investigator Edward Soltys to determine whether Griffin had brought a cell phone into the secured facility.
DOC had previously promulgated a cell phone policy, PSM.001.017, providing in relevant part, that "all persons, both employees and non-employees of the New Jersey Department of Corrections" are prohibited from bringing electronic communication devices, including cell phones, within specified secured perimeters of New Jersey's correctional facilities. The cell phone policy states that its purpose is "[t]o establish policy and guidelines to address the security threat posed to the New Jersey Department of Corrections, its employees and the public at large . . . ." Finally, the policy establishes the penalty for violation of its terms by employees: "First Offense
-- Five days to removal; Second Offense -- Thirty days to removal; Third Offense -- Removal."
On August 14, 2009, Griffin was served with a Preliminary Notice of Disciplinary Action (the First PND) by the DOC. The First PND charged Griffin with conduct unbecoming a public employee and violation of the cell phone policy.
Griffin contested the First PND at an intra-departmental hearing. Griffin received a Final Notice of Disciplinary Action (FND) with the penalty of removal, effective September 24, 2009.*fn1
Griffin appealed the disciplinary action, and on October 2, 2009, the matter was transferred to the Office of Administrative Law (OAL) for a hearing, N.J.S.A. 52:14B-1 to -15 and 14F-1 to -13.*fn2
At the hearing, the Administrative Law Judge (ALJ) considered the testimony of Soltys, Linthicum, Scott Derby -- an administrative captain at Bayside, Amber Stubbs -- Griffin's daughter, Betty Bowman -- Griffin's mother, and Griffin. Throughout the hearing, Griffin maintained that she did not use the cell phone at Bayside, and that it was possible that Stubbs or Bowman may have used the phone.
According to Soltys, he was assigned to investigate the events surrounding inmate Little's complaint. During the course of the investigation, he conducted interviews with Bayside staff, including Griffin, and inmate witnesses; additionally, Soltys subpoenaed Griffin's cell phone records from her cell phone provider, Sprint. Soltys described his investigation into the cell phone records, including how he analyzed the records and identified the calls and texts sent from and received by Griffin's cell phone. Soltys determined, and the ALJ found that on June 24, 2009, while Griffin was working General Assignment at Bayside, four text messages were sent between Griffin's and Linthicum's cell phones, and two texts were sent from Griffin's cell phone to her boyfriend's cell phone.
Soltys stated that the cell phone policy applies to all DOC correctional facilities in New Jersey and that bringing a cell phone in a secured area is a "serious security breach" that "could cause an array of problems." Griffin, herself, acknowledged the ...