On appeal from the Civil Service Commission, Docket No. 2009-2717.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad and Ostrer.
Vanessa Warren, a seventeen-year employee of the Department of Corrections (DOC) with a virtually unblemished record, appeals from a final determination of the Civil Service Commission (Commission) upholding the appointing authority's penalty of her removal as a senior correction officer. We remand to the Commission for reconsideration of the penalty.
Appellant was served with a Final Notice of Disciplinary Action dated January 29, 2009, advising that the following charges had been sustained against her: "[c]onduct unbecoming a public employee"; "[v]violation of administrative procedure and/or regulations involving safety and security"; and "[v]violation of a rule, regulation, policy, procedure or administrative decision," with a penalty of removal. She filed an appeal, and the matter was transmitted to the Office of Administrative Law on February 23, 2009, for a contested hearing. Hearings were held before the Administrative Law Judge (ALJ) in July and September 2009. ALJ Walter M. Braswell rendered his initial decision on November 18, 2009. He dismissed the DOC's charge of conduct unbecoming a public employee and upheld the remaining charges. The ALJ determined that the proper penalty was a six-month suspension rather than removal.
The Commission issued a final administrative action on January 15, 2010, which accepted and adopted the ALJ's findings of fact, but did not adopt the ALJ's recommendation to modify the removal to a six-month suspension. Rather, the Commission upheld the removal. Appellant filed a request for reconsideration, arguing the Commission had committed a "clear material error" in its analysis of progressive discipline. By final administrative action issued on May 27, 2010, the Commission denied appellant's request for reconsideration.
This appeal ensued. Appellant does not challenge the Commission's findings with respect to the charges, just the sanction of removal. Specifically, appellant argues: (l) the final agency action that disagrees with the ALJ as to the penalty is not entitled to deference as it was not supported by sufficient, credible, competent evidence in the record; (2) the Commission's conclusion that appellant had "adequate notice" of her prior misconduct sufficient to require consideration of her forty-five day suspension is not supported by the record and constitutes material error; and (3) the Commission's conclusion that appellant's error caused a very serious security risk is not supported by the record and therefore constitutes material error. We agree.
We briefly recite the ALJ's findings of fact that the Commission adopted and the appellant does not dispute. During appellant's seventeen years as a correction officer for the DOC, her regular assignment was as a housing unit officer. On November 7, 2008, she was assigned as a traffic control officer at Northern State Prison, which was approximately the fifth time in her career that she had been assigned this post. Her responsibilities at the post were to monitor and control all approved inmate movements as listed on the daily pass list and to monitor and distribute facility passes for approved inmate movements. Appellant apparently misread the list of inmates scheduled for movement for appointments and called inmate C.A. down to the traffic control area where inmates get passes for offices such as medical and clothing. When C.A. arrived, appellant discovered he was not on the list after all.
The ALJ and Commission found appellant "mistakenly" called C.A. to the traffic control area when he did not have any scheduled appointment rather than the DOC's contention that she intentionally called C.A. to her post for improper reasons. The ALJ found this was a type of mistake that quickly should have been remedied by sending C.A. back to his housing unit; however, appellant compounded her error by allowing him to linger in a restricted area and issuing him a pass to the clothing office without first obtaining authorization. ALJ Braswell noted that although there was a discrepancy in the testimony regarding whether appellant was trying to obtain the authorization or whether Sergeant Henry Bussey told her he would take care of escorting the inmate to the clothing department, appellant's mistake was that she never should have given C.A. the pass.
Notwithstanding this error, which "presented a risk to the safety and security of the institution," the ALJ found as mitigating factors that appellant was not experienced in this position, the procedure required her to flip through a lengthy list, and the daily pass list contained the name of an inmate with the same surname as C.A. Therefore, the ALJ recommended dismissing the charge of conduct unbecoming a public employee and upholding the remaining charges.
The ALJ "weighed appellant's past disciplinary record under the concept of progressive discipline and the nature of the charges brought against her." He found "[t]ermination is not the appropriate penalty in light of the appellant's unblemished tenure as a correction officer at Northern State Prison."
The following testimony and evidence were presented with respect to a separate incident on October 25, 2008, involving appellant. Appellant testified she was first served with the Preliminary Notice of Disciplinary Action (PNDA) on December 9, 2008, four days before she was served with the PNDA in the present matter. The PNDA in the prior matter, stipulated to by the parties, confirms this date, further stating that appellant was charged with: "[c]onduct unbecoming an employee"; "[o]ther sufficient cause"; "[l]eaving assigned work area without permission [and] creating a danger to persons or property"; "[n]eglect of duty, loafing, idleness or failure to devote attention to tasks which could result in danger to persons or property"; and "[v]violation of a rule, regulation, policy, procedure or administrative decision." The specifications were that appellant abandoned her post without being relieved or receiving authorization and failed to keep the unit locked down, resulting in two inmates being involved in an altercation, and appellant violating procedures by entering a unit and opening cell doors. The proposed discipline was a forty-five day suspension.*fn1
The ALJ made the following findings with respect to the October 2008 incident, ultimately concluding it should not be considered as a factor in ...