On appeal from the Civil Service Commission, Docket No. 2010-1042.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 28, 2011
Before Judges Sapp-Peterson and Ostrer.
Rhoda Livingston appeals from the January 28, 2010 final administrative decision of the Civil Service Commission (CSC) denying reconsideration of its August 5, 2009 order, in which it accepted and adopted the June 25, 2009 initial decision of the Administrative Law Judge (ALJ) that sustained the charges the Department of Corrections (DOC) lodged against Livingston, but rejected the ALJ's recommendation for a 180-day suspension and instead upheld Livingston's removal as a senior corrections officer at Northern State Prison. We affirm.
On June 27, 2008, the DOC served Livingston with a preliminary notice of disciplinary action seeking her removal based upon the following violations: (1) conduct unbecoming a public employee, N.J.A.C. 4A:2--2.3(a)(6) and Human Resources Bulletin (HRB) 84--17 as amended, Offense Number C11; (2) other sufficient cause, N.J.A.C. 4A:2--2.3(a)(11); (3) improper or unauthorized contact with inmates - undue familiarity with inmates, parolees, their families or friends, Offense Number D4; and (4) violation of a rule, regulation, policy, procedure, order or administrative decision, Offense Number E1.
Three days earlier, DOC investigators interviewed Livingston, during which she admitted that she and Andre Nix, an inmate at Bayside State Prison, had previously lived together for about four years, until he was incarcerated. She told the investigators that she reported her relationship with Nix to Superintendent Lydell Sherrer (Sherrer), a former administrator with Northern State Prison, when she approached him to speak about her "fiance." At that time, she asked Sherrer whether she could take Nix's son and grandchildren to visit Nix at the county jail. Sherrer told her "okay, that's your fiance; no, I'm not going to allow you to go over there, but do not marry him." She had no further conversation with Sherrer about Nix.
Sherrer did not advise her to write a report, and she did not submit a written report on her own.
Livingston did not request a hearing. A final notice of disciplinary action, sustaining all charges and removing her from her position, was issued on August 26, 2008. She appealed her removal and the matter was transferred to the Office of Administrative Law (OAL) as a contested case where a hearing was conducted on May 26, 2009. N.J.S.A. 52:14B-2(b).
Following the hearing, the ALJ issued an initial decision. He first noted there was no dispute that Livingston "was involved in a paramour relationship with Nix before he was an inmate, while he was an inmate at Bayside State Prison and subsequent to his release from Bayside State Prison" and that throughout that relationship Livingston "was employed as a [s]enior [c]orrections [o]fficer with the [DOC]." The ALJ noted further that a disputed issue surrounded Livingston's contention that she verbally informed Sherrer of the relationship. Part of the record before the ALJ included a memorandum from Sherrer denying Livingston reported the relationship to him and also stating that he, at no time, gave Livingston "verbal or written approval to visit her boyfriend[.]"
In his findings, the ALJ concluded the weight of the evidence clearly showed that Livingston "did not report her relationship with inmate Nix in writing at any time." He also rejected her contention she verbally notified Sherrer of her relationship with Nix and found that she was aware of her reporting obligations because she had received the DOC Law Enforcement Personnel Rules and Regulations during her orientation and "properly reported her son's incarceration." Finally, the ALJ noted Livingston "admitted that she attempted to conceal her identity on letters to Nix because she thought she would get into trouble for writing to him."
While concluding that DOC had sustained the charges against Livingston, the ALJ found two mitigating factors. First, he considered that Livingston was employed at Northern State Prison while Nix was imprisoned at Bayside State Prison, and this fact lessened the chance of Livingston compromising her integrity. Second, other than the underlying incident, Livingston had an unblemished career during her twelve-year employment with DOC. Additionally, he referenced several cases where corrections officers had engaged in inappropriate contact with inmates but received penalties other than removal. Based upon the mitigating factors he considered, as well as his review of the penalties imposed against corrections officers similarly involved in inappropriate contact with inmates, the ALJ recommended a 180-day suspension.
The DOC filed exceptions to the ALJ's initial decision, contending the ALJ erred in reducing the penalty. The CSC conducted its independent review of the record and issued a Final Administrative Action, in which it accepted and adopted the factual findings of the ALJ but rejected the ALJ's recommendation that Livingston's removal be modified to a 180-day suspension.
In finding removal appropriate, the CSC determined that the nature of Livingston's relationship with Nix was "surreptitious, as [Livingston] engaged in actions to conceal the relationship from her superiors." Additionally, as distinguished from other cases involving inappropriate contact with ...