On appeal from the Civil Service Commission, Docket No. 2011-1967.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...