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In re Monica Miller Northern State Prison Department of Corrections

Superior Court of New Jersey, Appellate Division

July 19, 2013

IN THE MATTER OF MONICA MILLER NORTHERN STATE PRISON DEPARTMENT OF CORRECTIONS.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 20, 2013

On appeal from the Civil Service Commission, Docket No. 2011-3501.

Luretha M. Stribling argued the cause for appellant Monica Miller.

Peter H. Jenkins, Deputy Attorney General, argued the cause for respondent Department of Corrections (Jeffrey S. Chiesa, Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Erin M. Greene, Deputy Attorney General, on the brief).

Before Judges Graves and Espinosa.

PER CURIAM

Monica Miller, a Senior Corrections Officer at Northern State Prison (NSP), appeals from a final decision of the Civil Service Commission (CSC or the Commission) finding she had committed: conduct unbecoming a public employee; failure or excessive delay in carrying out an order; insubordination; intentional disobedience or refusal to accept an order; resisting authority; and disrespectful use of insulting or abusive language to a supervisor; and imposing a fifteen-day suspension without pay. We affirm.

The charges against Miller arise from incidents that occurred on October 26 and 27, 2010. After a preliminary notice of disciplinary action was served upon her, a hearing was conducted that resulted in a finding that Miller was guilty of conduct unbecoming a public employee, N.J.A.C. 4A:2-2.3(a)(6), and excessive delay in carrying out an order, contrary to H.R.B. 84-17 (as amended) B-5 and imposing a fifteen-day suspension without pay. Miller was then served with a final notice of disciplinary action. She appealed to the CSC and the matter was referred to the Office of Administrative Law. An Administrative Law Judge (ALJ) conducted a hearing on four non-consecutive days, hearing testimony from Lieutenant Daud Abdus-Sabur, Miller's supervisor; John Cunningham, Director of the Office of Training for the Department of Corrections (DOC); Major Anthony McRae, who had been a captain at NSP; and Miller.

Abdus-Sabur testified that, on October 26, 2010, he instructed Miller to escort an inmate to the minimum-security area at 2:30 p.m., but she failed to complete the task until approximately 7:00 p.m. While seeking an explanation of her delay, Abdus-Sabur spoke to Miller using a speaker phone. She insisted that she could not hear him and hung up.

On October 27, 2010, Miller was located at the Administrative Close Supervision Unit (ACSU) lobby, although she had not been instructed to be there. Abdus-Sabur contacted Miller at approximately 7:00 p.m. to give her a task. She turned to the security camera, "smiled and waved, " and waited approximately fifteen minutes before responding to Abdus-Sabur's instruction. Abdus-Sabur described this conduct as "disrespectful and insubordinate."

Cunningham testified that the DOC is a paramilitary organization requiring strict discipline of corrections officers. Sergeants like Miller must complete an eighty-hour training course, which emphasizes the importance of following orders and professionalism. Cunningham stated that all corrections officers must read, sign, and comply with the DOC's rules and regulations. He identified the section that requires officers to follow all orders and comply in a timely fashion.

Miller testified on her own behalf. She maintained she had not violated any policies and had not been insubordinate. She attributed the charges against her to Abdus-Sabur's "anger and dissatisfaction" and their generally poor working relationship.

Regarding the delay in transferring an inmate on October 26, 2010, Miller explained she received the order but was immediately caught up in a large-scale move operation. When she later attempted the transfer, Lieutenant Coughlin informed her that he had completed the transfer. After she spoke to him a few hours later, it became clear to Miller that he had transferred a different inmate and she then completed the transfer assigned to her. She testified that when she called Abdus-Sabur later that evening, she was unable to hear him because he was using a speakerphone. She asked him to take her off speakerphone, but he responded that he was busy. Miller stated that Abdus-Sabur hung up on her and that he had done so in another incident several years earlier.

Miller testified she was at the ACSU building on October 27, 2010, because Lieutenant Stephens had requested that she speak with him. She stated that Stephens instructed her to wave to the security camera, knowing Abdus-Sabur could see her. She and Stephens "laughed about it or whatever and [she] just kept talking." She contended that her waving at Abdus-Sabur was a joke; that it was funny to her and Stephens, but she could not say what was funny to Abdus-Sabur. Miller testified that she had waved to people through security cameras before, and that it is done solely to say "hello."

Miller testified that she then attempted to complete the inmate transfer assigned to her on October 27, 2010, but that the transport vehicle was malfunctioning and she had to wait approximately fifteen minutes for a replacement vehicle before completing her assignment. When Miller arrived at the halfway house to escort the transfer inmate to NSP, she discovered that the inmate had escaped. Miller testified that the charge alleging that her personal delay resulted in the inmate's escape was inaccurate, emphasizing that the delay was the result of vehicle malfunction.

Major Anthony McRae performed the NSP internal investigation of the October 26 and 27, 2010 incidents. Based on his interviews of individuals involved, McRae concluded that the allegations against Miller were substantiated.

In his initial decision, the ALJ recommended that the CSC affirm Miller's fifteen-day suspension. He found the testimony and the evidence presented by NSP to be more credible than that presented by Miller and observed, "Instead of addressing her own insubordinate behavior, appellant has raised unsubstantiated and unrelated allegations of unfair treatment against her by various supervisors within NSP, all of which were investigated and determined to be unfounded."

The ALJ found that Miller delayed for more than five hours in carrying out an order to transfer an inmate on October 26, 2010, with no valid excuse for such a delay, and did in fact hang up on Abdus-Sabur while subsequently speaking with him on the telephone. With regard to Miller's delay on October 27, 2011, the ALJ found:

The report of Lieutenant Stephens and Lieutenant Sabur corroborates the fact that appellant knew that Lieutenant Sabur could see her via surveillance camera, and at one point she even waved to the camera. No matter what the purpose, waving at a surveillance camera from the ACSU more than half an hour after receiving an order to report to the front of the facility is clearly an act of insubordination and a failure to carry out an order in a timely manner. Despite any alleged vehicle
difficulties, appellant's failure to carry out her orders in an immediate, timely manner is an act of insubordination and it also goes without saying that waving at a supervisor who had issued such an order on a surveillance camera, with the knowledge that an order was not being carried out is an act of insubordination and blatant disrespect. This manner of conduct is also clearly unbecoming a law enforcement officer, specifically a correction sergeant.

The ALJ found that Miller had committed the following misconduct:

[C]onduct unbecoming a public employee; other sufficient cause; failure or excessive delay in carrying out an order, which would not result in damage to person or property; insubordination; intentional disobedience or refusal to accept an order; assaulting or resisting authority; and disrespect[ful] use of insulting or abusive language to supervisor.

Miller appealed to the CSC. On May 2, 2012, the CSC issued a final administrative action that accepted and adopted the

ALJ's findings and conclusions and affirmed Miller's fifteen-day suspension without pay.

Miller presents the following arguments for our consideration in this appeal:

POINT I
THE ALJ ACTED IN AN ARBITRARY, CAPRICIOUS AND UNREASONABLE WAY IN RENDERING THE DECISION IN THIS MATTER WHERE THE ALJ ARRIVED AT CONCLUSIONS WHICH WERE UNREASOANBLE [SIC] AND NOT SUPPORTED BY THE RECORD PRESENTED.
POINT II
THE ALJ EXHIBITED BIAS IN RENDERING AN OPINION IN THE MATTER OF MILLER V. NORTHERN STATE PRISON, NEW JERSEY DEPARTMENT OF CORRECTIONS AND BECAUSE OF THIS, THE OPINION MUST BE REVERSED AND VACATED.
POINT III
THE DISCIPLINARY ACTION TAKEN AGAINST SERGEANT MILLER WAS UNWARRANTED IN LIGHT OF THE FACT THAT THERE WAS NO EXHIBITION OF CONDUCT UNBECOMING A PUBLIC OFFICER OR DELAY IN PERFORMANCE OF DUTY.

We are not persuaded by any of these arguments and affirm.

The scope of our review in an appeal from a final decision of an administrative agency is limited. Circus Liquors, Inc. v. Governing Body of Middletown Twp., 199 N.J. 1, 9 (2009). We must sustain the agency's action in the absence of a "'clear showing' that it is arbitrary, capricious, or unreasonable, or that it lacks fair support in the record[.]" Ibid. It is not for this court "to disturb [a] credibility determination, made after due consideration of the witnesses' testimony and demeanor during the hearing." H.K. v. State, 184 N.J. 367, 384 (2005); see also Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 587 (1988). We are bound to defer to the Commission's findings of fact "when they could reasonably be made considering the proofs as a whole and with due regard to the opportunity of the one who heard the testimony to assess credibility." Klusaritz v. Cape May Cnty., 387 N.J.Super. 305, 313 (App. Div. 2006), certif. denied, 191 N.J. 318 (2007).

Here, the ALJ assessed the relative credibility of the witnesses and explicitly found the testimony and evidence presented by the NSP to be more credible than that of Miller. Our task is therefore to determine whether the evidence he found credible provides a sufficient basis for his conclusion that Miller committed the infractions found. We are satisfied that the record provided ample support for the ALJ's factual findings.

Miller argues further that the ALJ's decision was tainted by his bias against her. The allegation of bias includes contentions that the ALJ appeared to favor the DOC; undocumented remarks attributed to the ALJ in a pretrial conference;[1] and the fact that the ALJ allowed the DOC to present the testimony of Cunningham, who had not been previously identified as a witness. In addition, she states the ALJ refused to grant her an adjournment and began the hearing over the objection of her counsel when she was late. She argues further that on that day, "when Miller indicated that she was no longer interested in providing further testimony or continuing the proceeding, the ALJ repeatedly stated that the hearing would continue."

Rule 1:12-1(g) provides that a judge "of any court" must be disqualified "when there is any . . . reason which might preclude a fair and unbiased hearing and judgment, or which might reasonably lead counsel or the parties to believe so." (Emphasis added). This rule applies to administrative proceedings. See Bd. of Educ. v. Int'l Union of Operating Eng'rs, 109 N.J.Super. 116, 119 (App. Div. 1970). A litigant has the burden of proving his or her allegations of judicial misconduct by clear and convincing evidence. In re Perskie, 207 N.J. 275, 289 (2011) (citing R. 2:15-15(a)).

Appellant's contentions of judicial partiality rely heavily upon her dissatisfaction with the ALJ's determination, her characterization of his tone toward her, and the undocumented statements attributed to him in chambers. These are insufficient to satisfy the clear and convincing standard applicable to a claim of judicial bias. See id. at 289-90; see also Liberty Mut. Ins. Co. v. Land, 186 N.J. 163, 169 (2006).

Finally, Miller argues that the fifteen-day suspension was unwarranted. We note at the outset that the applicable appellate standard of deference "is not limited to whether a violation warranting discipline has been proven; . . . [it] 'applies to the review of disciplinary sanctions as well.'" In re Stallworth, 208 N.J. 182, 195 (2011) (quoting In re Herrmann, 192 N.J. 19, 28 (2007)).

N.J.A.C. 4A:2-2.3(a) sets forth the reasons for which "major discipline, " such as the suspension imposed here, N.J.A.C. 4A:2-2.2(a), is appropriate, and includes: failure to perform duties; insubordination; conduct unbecoming a public employee; and neglect of duty. The suspension is therefore authorized by the regulations.

Further, it is well-established that law enforcement personnel, including corrections officers, are held to a higher standard of conduct. In re Phillips, 117 N.J. 567, 576-77 (1990); In re Emmons, 63 N.J.Super. 136, 141-42 (App. Div. 1960). A law enforcement officer's suspension can be justified even when the charged misconduct occurred off-duty or the charged misconduct did not violate any particular rule or regulations, where it violates "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." Emmons, supra, 63 N.J.Super. at 140 (citing Asbury Park v. Dep't of Civil Serv., 17 N.J. 419, 429 (1955)). We are satisfied that Miller's violations constituted such misconduct and that the suspension was appropriate. Affirmed.


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