On appeal from the Civil Service Commission, Docket No. 2010-8.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: October 31, 2012 - :
Before Judges Axelrad, Nugent and Haas.
Jamie Skinner appeals from a final determination of the Civil Service Commission (Commission) terminating his employment with the Department of Corrections (DOC). The Commission adopted the findings of fact of the Administrative Law judge (ALJ) upholding the charges of conduct unbecoming a public employee, undue familiarity, and other sufficient cause, but rejected the ALJ's conclusion that the DOC had not met its burden on the falsification charges, and upheld the removal initially imposed by the DOC rather than the six-month suspension recommended by the ALJ. We affirm.
The following facts were adduced at the hearing under review. Appellant was a Senior Corrections Officer (SCO) assigned to East Jersey State Prison in Rahway since December 2005. On April 2, April 22, and May 4, 2009, the DOC issued Preliminary Notices of Disciplinary Action (PNDA) alleging appellant had engaged in conduct unbecoming a public employee, N.J.A.C. 4A:2-2.3(a)(6); other sufficient cause, N.J.A.C. 4A:2-2.3(a)(11); and various violations of the Human Resources Bulletin 84-17 (the Bulletin), including improper or unauthorized contact with an inmate and providing false statements to DOC investigators. Following Loudermill*fn1 hearings, the DOC suspended appellant without pay and sought his removal.
In the first PNDA, the DOC charged that appellant had failed to report that his mother, Lexine Skinner,*fn2 had applied for a mortgage on his behalf with Dina Shafran, the wife of an inmate, Pedro Solar, who was incarcerated at Mid-State Correctional Facility with appellant's brother Jason Skinner, in violation of the Bulletin. In the second PNDA, the DOC charged that appellant had provided false statements to investigators when he claimed he had no knowledge that Shafran was Solar's wife until his mortgage was denied in August 2008, directly contradicted by a May 24, 2008 phone conversation between appellant and Jason. In the third PNDA, the DOC charged that appellant had provided a favor to Solar on July 5, 2008, at Jason's request, by facilitating unauthorized phone calls on Solar's behalf to Shafran and Solar's father-in-law. Appellant was also charged with providing false information to investigators on March 31, 2009. In the videotaped interview, he denied knowing Solar or having any contact with Solar's family members, in contradiction of the July 5, 2008 phone conversation.
The DOC issued three Final Notices of Disciplinary Action (FNDA) on June 15, 2009, sustaining the charges and removing appellant from his position. Appellant appealed, and the matter was transmitted to the Office of Administrative Law (OAL) for a hearing.
Appellant filed a motion to dismiss the disciplinary charges, arguing, in part, that the investigation against him was biased and could not be cured. The case was heard over five days from October to December 2010. The ALJ denied appellant's motion, after which the following persons testified for the DOC: Senior Investigators Christopher Birardi and Kevin Koch of the Special Investigations Division (SID), and Chief James Keil, Director of Custody Operations. Appellant presented his brother Jason, his mother Lexine, and his former supervisors, Lieutenants Thomas Olson and James Jones. Appellant also testified on his own behalf.
Inv. Birardi testified that while investigating an incident concerning Solar, he and Inv. Koch listened to recordings of telephone calls Solar made from prison. During a call Solar made to Shafran on March 20, 2009, he complained about being placed in "lock up" and asked her to contact "Skinner's mother" and "[t]ell her Skinner better do something for me[.]" Unsure of whether Solar was referring to appellant or Jason, Inv. Birardi contacted Shafran and Lexine. Shafran, who works as an underwriter for a mortgage company, told Inv. Birardi that Lexine had applied for a mortgage on behalf of appellant.
Inv. Birardi interviewed appellant on March 31, 2009 regarding the mortgage application and his relationship with Solar and Shafran. Also present at the interview were Inv. Koch, union representative Keith Gargone, and Lt. Tracy Diaz of the Union County Prosecutor's Office. Appellant admitted he had called Shafran on her cell phone on August 4, 2008, and authorized her mortgage company to run a credit check in connection with his mortgage application. He denied, however, that he physically made the application. Appellant also claimed he was unaware of Shafran's relationship with Solar until after the mortgage application was denied in August 2008. Appellant did admit, however, that he did not report to the DOC the fact he had a mortgage application processed with the wife of an inmate. He also denied that at any time "this guy Pedro [Solar] or his wife contacted me for any type of personal help . . . ."
Inv. Birardi continued the investigation and discovered two additional telephone calls connecting appellant, Solar, and Shafran, which were played for the ALJ. On May 24, 2008, Jason called appellant and explained he knew someone who had a mortgage company and gave him the phone number of that person's wife so Lexine could contact her to help their sister obtain a mortgage. Jason referred to his contact as "the guy here" and "one of the buddies I talk to[,]" but never specifically mentioned his name, and referred to his contact's wife solely as "his wife."
Jason asked appellant to conference Lexine into the call, which he did. Jason repeated what he had just told appellant, referencing his contact as "this guy Peter I'm here with[.]" While Jason was speaking with Lexine, appellant interjected that he may be able to use "Peter" to refinance his own home. Toward the end of the conversation, Jason identified "Peter's" wife as Shafran. Solar then got on the telephone that Jason was using, and informed Lexine that his wife was an underwriter who could help her obtain a mortgage. Inv. Koch acknowledged that he could not "ascertain whether or not [appellant was] on the line at that point."
On July 5, 2008, Jason called appellant to ask for a "favor." Jason told appellant he was going to put "Dina's husband" on the phone because "[h]e can't get a hold of her" and would explain who he wanted appellant to call for him. Solar got on the phone, explained the situation to appellant, and appellant attempted to facilitate a three-way call to Solar's wife. Solar expressed concern that appellant could get "in trouble" for making the conference call. Appellant apparently understood how to circumvent the prison phone system from disconnecting the prohibited three-way call.
Appellant could not reach Shafran so he informed Solar that he had left a message for her. At Solar's request, appellant then placed a three-way call to Solar's father-in-law, during which Solar explained to his in-laws that he was concerned because he could not get in touch with Shafran. At one point, appellant interjected that ...