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In the Matter of

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


May 14, 2012

IN THE MATTER OF ANTHONY MCIVER, SOUTH WOODS STATE PRISON DEPARTMENT OF CORRECTIONS.

On appeal from the Civil Service Commission, Docket No. 2011-1967.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 1, 2012

Before Judges Fisher and Baxter.

Appellant Anthony McIver appeals a final decision of the Civil Service Commission removing McIver as a corrections officer because he engaged in "conduct unbecoming a public employee," N.J.A.C. 4A:2-2.3(a)(6), and violated a departmental policy by failing to properly report his arrest and conviction for refusal to submit to a breathalyzer test, N.J.S.A. 39:4-50.2(a). We find no merit in McIver's arguments and affirm. McIver was employed by the Department of Corrections (DOC) for fourteen years. By the time of the events in question, McIver was a Senior Corrections Officer at South Woods State Prison (South Woods). On November 26, 2009, McIver was arrested for driving while intoxicated, N.J.S.A. 39:4-50, and for refusing to submit to a breathalyzer examination, N.J.S.A. 39:4-50.2(a). On June 16, 2010, McIver pleaded guilty in Vineland Municipal Court to refusing a breathalyzer and was sentenced as a third-time DUI offender, resulting in: the revocation of his driver's license for ten years; twelve days of treatment at the intoxicated driver resource center; one year required use of an interlocking device upon the reinstatement of his license; and $1139 in fines and court costs.

As a corrections officer, McIver was subject to Human Resource Bulletin 84-19, a written policy that required him, upon being summoned, arrested or incarcerated, to:

1. . . . contact his/her supervisor before reporting to duty or within 48 hours whichever is less [and] provide the supervisor with complete information concerning the nature of the offense and the name of the involved law enforcement agency.

2. . . . follow up the above verbal communication . . . [with a] written report [that] must contain the nature and circumstances of the incident, date of the offense, law enforcement agency involved, date of court appearance and the court's decision, if any. When circumstances do not permit an employee to report the court's disposition of the matter at the time of the original submission, he/she will be required to file a subsequent report within 48 hours of the court appearance and final disposition of the issue.

This same policy declared that "[i]f an employee fails to follow the above steps, appropriate disciplinary action may be taken."

On August 25, 2010 -- nine months after his arrest and more than two months after his conviction -- McIver finally submitted a written report informing the DOC that his "court appearances for failure to submit to a [b]reathalyzer ha[d] concluded," and he was "found guilty . . . and ordered to surrender [his] driver's license for a period of ten years."

McIver was charged administratively with conduct unbecoming a public employee and for failing to properly report his arrest and conviction. An intra-departmental hearing officer listened to the testimony of the DOC's investigator, McIver, and a union representative, who testified on McIver's behalf, and issued a final notice of disciplinary action, sustaining the charges against McIver and recommending removal. The hearing officer stated, among other things:

McIver has indicated he verbally communicated . . . information [of his arrest] to retired Chief Connie Lloyd. [However,] [t]he policy further requires that not only must this verbal communication be followed up in writing but the employee must also report, in writing, any final court disposition within 48 hours of the issue. . . . McIver failed to provide written documentation of both his arrest on 11/26/09 and the final court disposition within 48 hours of each event. This is a violation of a departmental procedure. The motor vehicle violation, his third DUI related offense which has resulted in a ten year loss of driving privileges, is conduct unbecoming of a law enforcement officer. No officer should act or behave, either in an official or private capacity, to the officer's discredit, or to the discredit of the Department. As a Law Enforcement Officer, he is held to a higher standard and he is expected to protect the public, not to act dangerously, placing other vehicles and pedestrians in peril.

McIver timely requested a hearing before an Administrative Law Judge (ALJ). The ALJ heard the testimony of Captain David Redman, Chief Connie Lloyd, Investigator Robert Melendez, McIver, Belinda McIver, union representative Michael Sharp, and Captain Sheree Culvert.

Captain Redman, the administrative chief at South Woods, testified that the written policy required "[an] initial verbal notification within 48 hours after . . . [a] summons, arrest, or incarceration," which was to be "follow[ed] up in writing within 48 hours of the event." He further testified to his understanding that a third DUI offense requires "an automatic termination of service." Captain Redman testified that McIver provided no written report concerning either his arrest or conviction until August 25, 2010; he also denied that McIver ever gave an oral report, explaining that if McIver had provided anyone at DOC with oral notice, "his name would have been placed on our disciplinary tickler file."

Chief Lloyd served as acting chief during the time of McIver's arrest in November 2009. He agreed with Captain Redman's understanding of the policy's requirements and stated that after being "notified by an officer that he was arrested," it was his "regular practice" to tell the officer to write a report, and then tell the administrative captain "to keep an eye [out]" to ensure the report was actually written; "[the administrative captain] would [then] start a tickler file which would . . . indicate a spreadsheet, the name of the officer, [and] when [the event] w[as] report[ed]." Asked if McIver had reported an arrest to him, Lloyd stated: "I don't have any recollection."

Investigator Melendez testified that he was first notified of McIver's arrest when Chief Lloyd provided him with a copy of McIver's August 25, 2010 report. Melendez testified that he verified the account McIver had provided by checking it against McIver's motor vehicle abstract, which revealed the conviction occurred in June 2010, as well as McIver's earlier DUI-related infractions. His investigation further revealed that, prior to August 25, 2010, McIver had not reported anything to the DOC concerning either his November 2009 arrest or the June 2010 conviction.

Captain Culvert, who was employed in "Center Control" at the time of McIver's 2009 arrest and worked with McIver's wife, Belinda, in Center Control, testified that she became aware of McIver's November 2009 arrest because Belinda "was markedly upset one day" and told her that McIver "had gotten taken to the Police Barracks for . . . [d]rinking and driving." Culvert stated, "when [McIver's wife] made that clear to me I said to her, 'Has he reported it?' and she said, 'Already done.'"

McIver testified that he had been employed with the DOC for fourteen years, had no prior disciplinary record, and "was previously Officer of the Month[.]" He recounted his arrest and that a co-worker picked him up from police barracks that night and took him home. He testified that his wife reported the incident when she went to work "before [he] had the chance." McIver further explained:

[My wife] had talked to [union representative] Sharp to get advice for me . . . [and] she called me a couple minutes after and said, . . . "This is what you need to do." . . . [And] I did exactly what she said, I called [Chief Lloyd] specifically, . . . and made him aware of what was going on. . . . [H]e [asked], "Well, did you get locked up?" And I said, "No, . . I'm out, I called another officer to come pick me up," and he was like, "Well, let me know what's going on. Keep me aware, keep me in the loop of this case . . . [and] as soon as you come back make sure you do all the proper paperwork and everything[.]"

McIver testified that, after orally reporting his arrest to Chief Lloyd, he did not believe a written report was necessary. He thought that "once the whole case [was] done," he simply needed to make sure Lloyd was "aware of . . . the outcome."

On cross-examination, McIver admitted that he was "aware of the need to report these things," and that he had previously submitted a written report to then-Chief Kelly on January 2, 2001 concerning his first DUI arrest. DOC had no record of any reports relating to McIver's second DUI arrest or conviction, and McIver conceded that "[i]f there's no paperwork, it wasn't reported." McIver conceded on cross-examination that, after his June 16, 2010 conviction for refusing a breathalyzer, "[he] didn't notify anybody at the prison . . . from June 16th to August 25th."

Belinda McIver testified that she became aware of her husband's November 2009 arrest when he called from the police station the night of the incident. Belinda stated that she spoke to Sharp the following Monday and he asked her if McIver had "report[ed] it to anyone"; he advised Belinda that McIver should report the matter to Chief Lloyd. Belinda also testified that she then "went back in[to] master center where I worked, [and] called my house because [my husband] was at home, [I] got him on the phone and transferred him down to the chief's office for him to report it." When asked if she was on the phone when her husband spoke to Chief Lloyd, she admitted that she was not, but maintained that she "re-called [her] house to make sure that [McIver had] spoke with [the Chief]." She testified that McIver told her he had spoken with Chief Lloyd "and reported it." Belinda McIver testified there were "additional communications [between herself,] the union rep and Chief Lloyd in the November time frame," and that Chief Lloyd would come into the master center, where she worked, "and ask[] how was everything going . . referring to the DWI arrest."

Union representative Michael Sharp testified that he was aware of four other cases concerning "conducting unbecoming" charges arising from DUI offenses or offenses for refusing to submit to a breathalyzer, where DOC and the Commission had entered into settlement agreements, with the settling corrections officers receiving suspensions. Sharp testified that "based upon [his] experience and involvement as a union representative, . . . [the penalty] for conduct unbecoming . . . [for] DWI . . . is 30 days standard."

On April 19, 2011, the ALJ issued an initial decision finding that McIver committed the charged violations and that removal was warranted. Specifically, the ALJ concluded that the applicable policy required both "an arrest and a conviction to be reported in writing within 48 hours of the event." The ALJ found McIver had presented "sufficient evidence that he [had] orally advised Chief Lloyd of his arrest on or about November 26, 2009[,]" but that "[i]t [was] undisputed that [he] failed to supply a written report of his November 26, 2009, arrest . . . and a written report of his conviction on June 16, 2010, within forty-eight hours."

Regarding the conduct unbecoming charge, the ALJ observed that "[i]t is undisputed that [McIver] was convicted of a third alcohol-related driving incident." He held that "[t]he case law is abundantly clear that a DUI-related offense and a refusal to submit to a breathalyzer, even while off duty, falls within the ambit of . . . conduct unbecoming a correction officer." Addressing the penalty, the ALJ distinguished the examples of lesser sanctions -- because those cases involved negotiated settlements -- and do not constitute legal precedent. The ALJ also noted that the earlier settled cases were under the watch of a different Chief and stated in this regard:

If a new chief decides to takes a tougher stance, he or she may freely exercise their prerogative. . . . [A]ppellant's third DUI related offense . . . cannot be ignored during the penalty portion of this case. [McIver] clearly has an alcohol problem, . . . when it comes to appreciating the consequences of driving while under the influence. . . . [and his] failure to properly report his arrest and conviction cannot be understated. Corrections officers are the front line in securing the prison population. Thus, once an officer is arrested[,] management must be immediately advised and kept advised, for manpower and security reasons. . . . Mindful that appellant was a third offender, he was well aware of the reporting policy. Thus, his lack of formality and urgency in reporting his third conviction is troubling. I conclude that [McIver's] collective conduct was sufficiently egregious to justify his removal.

McIver and the DOC*fn1 filed timely letters of exception with the Commission, which, on June 1, 2011, issued a final decision adopting the ALJ's findings of fact and conclusions of law, and affirming McIver's removal.

McIver appeals, arguing:

I. THE CIVIL SERVICE COMMISSION'S DECISION SHOULD BE REVERSED AS REMOVAL IS NOT A PROPORTIONAL PENALTY TO THE OFFENSE COMMITTED.

II. [MCIVER] COMPLIED WITH HUMAN RESOURCE BULLETIN 84-19, THE ALJ ERRED IN FAILING TO CONSIDER THE POTENTIAL FOR VARYING INTERPRETATION OF HRB 84-19, AND THE CIVIL SERVICE COMMISSION PERPETUATED THE ERROR IN UPHOLDING THE FINDINGS OF THE ALJ.

The Commission's final decision was fully supported by sufficient credible evidence in the record as a whole, R. 2:11-3(e)(1)(D), and McIver's arguments are of insufficient merit to warrant further discussion in a written opinion, R. 2:11-3(e)(1)(E). We add only the following brief comments.

The scope of appellate review in these circumstances "is limited." In re Herrmann, 192 N.J. 19, 27 (2007). The final decision of an administrative agency will be upheld absent a "clear showing that it is arbitrary, capricious, or unreasonable, or that it lacks fair support in the record." Id. at 27-28. In reviewing an agency decision, we consider three factors:

(1) whether the agency's action violates express or implied legislative policies, that is, did the agency follow the law; (2) whether the record contains substantial evidence to support the findings on which the agency based its action; and (3) 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.

[Id. at 28 (quoting Mazza v. Bd. of Trs., 143 N.J. 22, 25 (1995)).]

If the decision satisfies these factors, we are obligated to afford "substantial deference to the agency's expertise and superior knowledge" in its particular field. Ibid. Such deference should be afforded even if we would have reached a different result than that rendered by the agency. In re Taylor, 158 N.J. 644, 657 (1999).

McIver's third conviction, coupled with his undisputed failure to submit a timely written report of his arrest and conviction, constituted conduct unbecoming an officer and violated the written policy quoted earlier. Even if this were not so, law enforcement officers are subject to a higher standard of conduct, In re Carter, 191 N.J. 474, 486 (2007), and "a finding of misconduct need not be predicated upon the violation of any particular rule or regulation," Karins v. City of Atl. City, 152 N.J. 532, 555 (1998) (citation and internal quotation marks omitted). Such a determination can "be based merely upon the violation of the implicit standard of good behavior which devolves upon one who stands in the public eye as an upholder of that which is morally and legally correct." Ibid. The Commission properly concluded that McIver engaged in conduct unbecoming a public employee because he violated the regulation requiring the rapid reporting of an arrest and because he was convicted of his third alcohol-related driving offense.

We also reject McIver's argument that termination was too severe a sanction. "[W]hen reviewing administrative sanctions, appellate courts should consider whether the 'punishment is so disproportionate to the offense, in light of all of the circumstances, as to be shocking to one's sense of fairness.'" In re Stallworth, 208 N.J. 182, 195 (2011) (quoting Carter, supra, 191 N.J. at 484). In reviewing a sanction, we afford "substantial deference" to the Commission. Herrmann, supra, 192 N.J. at 36.

The concept of progressive discipline is rooted in the "desire to promote proportionality and uniformity in the rendering of discipline of public employees." Stallworth, supra, 208 N.J. at 195. Under this disciplinary scheme, "an employee's past record [can] properly be considered in fashioning the 'appropriate penalty for the current specific offense,'" considering:

[a]n employee's reasonably recent history of promotions, commendations and the like on the one hand and, on the other, formally adjudicated disciplinary actions as well as instances of misconduct informally adjudicated, so to speak, by having been previously called to the attention of and admitted by the employee.

[Id. at 196 (quoting West New York v. Bock, 38 N.J. 500, 524 (1962)).]

"[T]he concept of progressive discipline has been utilized in two ways: (1) to 'ratchet-up' or 'support imposition of a more severe penalty for a public employee who engages in habitual misconduct'; and (2) 'to mitigate the penalty' for an employee who has a record largely unblemished by significant disciplinary infractions." Ibid. (quoting Herrmann, supra, 192 N.J. at 30-33).

Progressive discipline, however, is not 'a fixed and immutable rule'"; "some disciplinary infractions are so serious that removal is appropriate notwithstanding a largely unblemished prior record." Ibid. (quoting Carter, supra, 191 N.J. at 484). "Thus, progressive discipline has been bypassed when an employee engages in severe misconduct, especially when the employee's position involves public safety and the misconduct causes risk of harm to persons or property." Id. at 196-97 (citation and internal quotation marks omitted).

Here, the penalty of removal was appropriate even though McIver did not have a prior disciplinary record. Indeed, the fact that McIver had no prior disciplinary record was not a product of exemplary conduct. As noted, this was McIver's third arrest and conviction for alcohol-related driving offenses while he was a corrections officer. In 2001, after reporting the first arrest, McIver could have been disciplined but was fortunate to avoid sanctions for this offense. And McIver was not disciplined for his second DUI, because he never reported it. Had McIver accurately reported the second event, as he was required to do, it seems certain he would have been disciplined and would not have been able to assert, as he does here, that he had an unblemished disciplinary record. In these circumstances, removal is hardly "'shocking to one's sense of fairness.'" Id. at 195.

Affirmed.


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