IN THE MATTER OF ALONZO CUMBERLANDER, NORTHERN STATE PRISON.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 5, 2013
On appeal from the Civil Service Commission, Docket No. 2011-3635.
Saluti Law Group, attorneys for appellant Alonzo Cumberlander (Gerald M. Saluti, on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondent Department of Corrections (Melissa H. Raksa, Assistant Attorney General, of counsel; Brandon Hawkins, Deputy Attorney General, on the brief).
Before Judges Sapp-Peterson and Haas.
Alonzo Cumberlander appeals from a December 7, 2011 final determination of the Civil Service Commission (Commission) terminating his employment with the State 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 and undue familiarity with an inmate and the penalty of removal sought by the DOC. On appeal, Cumberlander does not dispute the fact that he committed the violations charged. His appeal is limited to an argument that the Commission erred in removing him from his position as a Senior Correction Officer at Northern State Prison. We disagree and affirm.
There is no dispute as to the material facts developed at the hearing before the ALJ. On February 1, 2011, Administrator Lagana, Lieutenant Daye, and Assistant Superintendent Nogan observed Cumberlander eating a plate of rice and beans at his post. Lagana questioned Cumberlander about the food and he admitted he had received the meal from an inmate, who had cooked it in his cell. Cumberlander also admitted receiving food from inmates on other occasions in the past. Lagana immediately relieved Cumberlander from his post and this disciplinary action followed.
Cumberlander testified and admitted he had accepted the food from the inmate, but claimed "he did not think it was inappropriate[.]" He acknowledged he had been "instructed that he was not allowed to accept anything of value or any gifts from inmates[.]" However, he "did not consider food supplied by an inmate cooked in a cell to be a violation because it had little to no value."
The ALJ found the DOC had established the charges against Cumberlander and that his conduct fully warranted his removal from employment. Relying upon several DOC directives to its employees and the employee handbook, the ALJ found "it is undoubtedly clear that Correction Officers should not place themselves in a position of showing any favoritism toward specific inmates nor should they accept favors or do favors for inmates for it leads to the potential of discord and perhaps worse consequences."
The ALJ found "Cumberlander's contention that he did not believe that taking food cooked in a cell by [an inmate] was prohibited is far from a credible contention." The ALJ further found Cumberlander's claim that the food did "not have value" and, therefore, could not be considered a gift, was "at best pretextual and defies common sense." The ALJ stated:
As pointed out by the witnesses testifying on behalf of [DOC], the consumption of food prepared by [an inmate] in plain view of all the other inmates would undoubtedly give those inmates the impression that the inmate who supplied the food may in some way get preferential treatment in return. Although that may not be the bargaining chip at the time of the receipt of the food, it was clear that since Cumberlander had discretionary authority to determine which cells may or may not be searched, that this type of subtle influence is exactly the type of conduct that is prohibited. For Cumberlander not to recognize the potential negative perception of his action leads to the conclusion that despite all his exposure to rules and regulations and training at the Academy, his lack of common sense is ultimately a danger to the institution and his fellow Correction Officers.
The ALJ further concluded that the penalty of removal was appropriate. Cumberlander had twice been suspended for three days as a result of attendance violations. He was also suspended for forty-five days for abandoning his position and had very recently been suspended for 120 days "for carrying a weapon when unauthorized and improperly securing it in a ...