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In re Miller

Superior Court of New Jersey, Appellate Division

September 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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. 2011-3089.

Luretha M. Stribling argued the cause for appellant.

Peter H. Jenkins, Deputy Attorney General, argued the cause for respondent (Jeffrey S. Chiesa, Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Mr. Jenkins, on the brief).

Before Judges Graves and Ashrafi.

PER CURIAM

Monica Miller is employed by the Department of Corrections (DOC) as a Correction Sergeant at Northern State Prison (NSP). She appeals from a final decision of the Civil Service Commission (the Commission) dated December 7, 2011, which upheld her thirty-day suspension without pay. After reviewing the record in light of the contentions advanced on appeal, we affirm.

Miller has been employed at NSP since May 4, 1991, and has been a sergeant since December 2004. In a preliminary notice of disciplinary action dated November 26, 2010, Miller was charged with "incompetency, inefficiency, or failure to perform duties, " N.J.A.C. 4A:2-2.3(a)(1); "conduct unbecoming a public employee, " N.J.A.C. 4A:2-2.3(a)(6); "neglect of duty, " N.J.A.C. 4A:2-2.3(a)(7); and "other sufficient cause, " N.J.A.C. 4A:2-2.3(a)(12). The preliminary notice also charged Miller with "falsification" and stated:

On October 14, 2010, you admitted that you failed to tour the UMDNJ [University of Medicine and Dentistry of New Jersey] hospital as required by the post orders. Two officers were assigned to the hospital that day to supervise an inmate. When questioned you gave a false statement that there were no cars available to enable you to tour UMDNJ. Upon investigation, it was learned that there were in fact vehicles available that you could have utilized.
As a Sergeant, it is your responsibility to know when staff are assigned to the hospital, to comply with all post orders, and to not provide false statements regarding the performance of your duties.

Following a departmental hearing on December 22, 2010, the charges were sustained. The final notice of disciplinary action suspended Miller for thirty days.

Miller appealed the disciplinary decision, and the matter was transferred to the Office of Administrative Law as a contested case. The Administrative Law Judge (ALJ) held hearings on June 3, 2011, July 14, 2011, and August 18, 2011. The ALJ heard testimony from four witnesses: Captain Marvin Blevins, who conducted an investigation of the events that occurred on October 14, 2010; Sergeant Frank Ianco; Communications Operator Gwendolyn Baxley; and Miller.

Blevins testified that on October 14, 2010, Miller was assigned "to her regular position" as a "minimum unit sergeant" during the second shift, from 2:00 p.m. to 10:00 p.m. Blevins also testified a NSP inmate was "housed" at UMDNJ during Miller's shift, and one of her responsibilities was "to make a physical tour of the hospital" to ensure the officers guarding the inmate were "in full compliance with all post orders and internal management procedures." According to Blevins, he was instructed to determine whether Miller failed to tour the hospital.

During his investigation, Blevins reviewed all of the "reports relating to the incident, " and he spoke to the shift commander, Lieutenant Abdul-Sabur. In addition, Blevins obtained written statements from Ianco, Baxley, and Miller. When Blevins interviewed Miller, he asked her seven questions and she provided the following answers:

Q. What was your assignment for 10/14/10?
A. Minimum unit Sgt.
Q. Did you tour UMDNJ on 10/14/10?
A. No.
Q. Do you normally tour the outside hospital when staff is assigned there?
A. Yes – When vehicles are available.
Q. Are you aware of the post orders for the minimum unit Sgt.?
A. Yes.
Q. Why did you not tour UMDNJ on this date?
A. There [were] no vehicles for the trip.
Q. Did you inform anyone of this?
A. The shift commander was aware of this.
Q. Is there anything you would like to add to this statement?
A. This is normal that vehicles are not available.

In his written report, which was admitted into evidence, Blevins stated: "[I]t is clear that Sgt. Miller had no reason not to inspect the outside hospital. Sgt. Miller did have a vehicle to utilize to complete the task. Sgt. Miller did provide false information during the course of this investigation."

Miller testified it was "not the norm" to tour UMDNJ, and she did not know that an inmate was housed at UMDNJ on October 14, 2010. Therefore, she was unaware of the "need" to tour the hospital. Additionally, when Miller was asked whether any vehicles "were available" on October 14, 2010, she answered: "No. And just when I say no, there's always vehicles on site, but whether the vehicle's condition allows you to drive it or its availability is just a different question."

In a comprehensive thirty-three page written decision, the ALJ made the following credibility determinations:

I found respondent's witnesses, on the whole, to be credible. Their testimony was detailed regarding specific matters, largely consistent on direct and cross-examination, and not inconsistent with the documentary evidence in material aspects. I especially found Blevins and Ianco to be persuasive. I was also persuaded by the testimony of Baxley, Blevins, and Ianco that they were not influenced by others pertinent to their parts in the investigation. To a large degree, [Miller's] testimony was general in nature, not particular to the facts in dispute. I found respondent's witnesses to be more credible, generally, regarding the disputed matters, than Miller. Based on the totality of the evidence, I give more weight to the testimony of respondent's witnesses than that of Miller.

The ALJ also found that Miller knew or should have known that she was responsible for conducting a tour of UMDNJ on October 14, 2010, and there were vehicles available for Miller to use during her shift:

[On] October 14, 2010, it was Miller's responsibility to tour an outside post to which officers subject to her jurisdiction were assigned, and she was aware of that responsibility. It was also [Miller's] responsibility to be familiar with NSP's [post orders], including [post order] 60-04, and she was familiar with them. It was [Miller's] responsibility to conduct at least one tour of the . . . hospital during her shift, the second shift, on October 14, 2010.
As of October 14, 2010, it was [Miller's] responsibility to ascertain if any prison inmates were being housed in outside facilities. She made no effort to do so during the second shift on that date. Miller could have obtained such information by inquiring at [center control], in person or by telephone, and via other communications. [Miller] knew, or should have known, that there was a prison inmate at the hospital.
Vehicle nos. 20188, 19055, and 20013 were "available" to Miller during the second shift on October 14, 2010. Vehicle no. 19977 was "available" to Miller during the second shift on October 14, 2010 between 4:40 p.m. and 8:20 p.m.

The ALJ concluded that Miller's conduct "constituted neglect of duty and a failure to perform her duties." Moreover, the ALJ determined that Miller's "explanation to Blevins that she failed to perform the outside tour because no vehicle was available . . . constituted the making of a false statement regarding an investigation and her duties." The ALJ also found the thirty-day suspension was appropriate because it was "within the range of penalties set forth in the DOC's disciplinary policy, " and the failure to tour the hospital "could have resulted in damage to persons or property."

Following a de novo review, the Commission "accepted and adopted" the ALJ's findings and conclusions. Accordingly, the Commission upheld the thirty-day suspension imposed by the appointing authority.

On appeal to this court, Miller presents the following arguments:

POINT I
THE ADMINISTRATIVE LAW JUDGE RENDERED A DECISION WHICH LACKED FAIR SUPPORT IN THE RECORD AND BECAUSE OF THIS THE DECISION REACHED MUST BE REVERSED.
POINT II
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 UNREASONABLE AND NOT SUPPORTED BY THE RECORD PRESENTED.
POINT III
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 IV
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 FALSIFICATION AND SERGEANT MILLER HAD LONG TENURE AND A WORK HISTORY WHICH DEMONSTRATED A NUMBER OF COMMENDATIONS.
POINT V
SERGEANT MILLER WAS SUBJECTED TO DISCRIMINARTORY TREATMENT BY HATHA BARAKA, CAPTAIN CALDARISE AND CAPTAIN BLEVINS BECAUSE THE SERGEANTS WORKING THE DAY AND NIGHT SHIFTS ON OCTOBER 14, 2010, DID NOT TOUR UMDNJ AND WERE NOT INVESTIGATED OR DISCIPLINED AS SHE WAS.

We conclude from our review of the record that these arguments are clearly without merit. R. 2:11-3(e)(1)(D) and (E). We therefore affirm with only the following comments.

"Courts have only a limited role to play in reviewing the actions of other branches of government. In light of the executive function of administrative agencies, judicial capacity to review administrative actions is severely limited." George Harms Constr. Co. v. N.J. Tpk. Auth., 137 N.J. 8, 27 (1994) (citing Gloucester Cnty. Welfare Bd. v. State Civil Serv. Comm'n, 93 N.J. 384, 390 (1983)). "Ordinarily, an appellate court will reverse the decision of [an] administrative agency only if it is arbitrary, capricious or unreasonable or it is not supported by substantial credible evidence in the record as a whole." Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980) (citing Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963)). In determining whether an agency action is arbitrary, capricious, or unreasonable, we consider: (1) whether the agency followed the law; (2) whether the decision is supported by substantial credible evidence in the record; and (3) whether the agency clearly erred in reaching its conclusion. In re Stallworth, 208 N.J. 182, 194 (2011) (citing In re Carter, 191 N.J. 474, 486 (2007)).

When reviewing agency actions, we "must defer to an agency's expertise and superior knowledge of a particular field." Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992). Therefore, if substantial credible evidence supports an agency's conclusion, we may not substitute our own judgment for the agency's even though we may have reached a different result. Ibid. This deferential standard also applies to our review of disciplinary sanctions. Stallworth, supra, 208 N.J. at 194.

The test for reviewing an administrative sanction is "whether such punishment is 'so disproportionate to the offense, in the light of all the circumstances, as to be shocking to one's sense of fairness.'" In re Polk License Revocation, 90 N.J. 550, 578 (1982) (quoting Pell v. Bd. of Educ., 313 N.E.2d 321, 327 (1974)). "[C]ourts should take care not to substitute their own views of whether a particular penalty is correct for those of the body charged with making that decision." Carter, supra, 191 N.J. at 486 (citing In re License Issued to Zahl, 186 N.J. 341, 353-54 (2006)).

In the present matter, the ALJ's findings and conclusions, which the Commission adopted, are fully supported by substantial credible evidence in the record, and the penalty imposed is entirely appropriate in light of Miller's misconduct. Consequently, there is no basis to intervene.

Affirmed.


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