CHARLES LEEK v. NEW JERSEY DEPARTMENT OF CORRECTIONS, A.C. WAGNER YOUTH CORRECTIONAL FACILITY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2350-06T32350-06T3

CHARLES LEEK,

Petitioner-Appellant,

v.

NEW JERSEY DEPARTMENT OF

CORRECTIONS, A.C. WAGNER

YOUTH CORRECTIONAL FACILITY,

Respondent-Respondent.

________________________________________________________________

 

Argued April 28, 2008 - Decided

Before Judges Parrillo and Baxter.

On appeal from a final decision of the Merit System Board, Department of Personnel, DOP Docket No. 2005-92.

Dennis M. Caufield argued the cause for appellant.

Kathleen Asher, Deputy Attorney General, argued the cause for respondent (Anne Milgram, Attorney General, attorney; Patrick DeAlmeida, Assistant Attorney General, of counsel; Ms. Asher, on the brief).

PER CURIAM

Charles Leek appeals from a November 16, 2006 final administrative decision by the Merit System Board (Board) affirming the Department of Corrections' (Corrections) decision to suspend him without pay for thirty days. The Board found Leek guilty of the following infractions: conduct unbecoming an employee, violation of a rule or regulation, and intentional abuse or misuse of authority or position. We affirm.

I.

Leek was employed as a Corrections Sergeant with the New Jersey Department of Corrections. He was assigned to A.C. Wagner Youth Correctional Facility, which was formerly designated as a "boot camp."

While still employed by Corrections in 2001, Leek was ordained as an associate pastor in the New Life Group Church. Two years later, he established the New Life Community Church and became its pastor. On January 12, 2003, Bernard LaMorgia showed up on the steps of Leek's church asking Leek and other church officials for help to change his life and overcome his crack cocaine addiction. Criminal charges were pending against LaMorgia in both Burlington and Camden counties at the time. Leek ministered to LaMorgia, who, according to Leek, made "great strides" in turning his life around.

On February 10, 2003, while employed by Corrections, Leek accompanied LaMorgia, who was out on bail, to the Camden County courthouse for LaMorgia's first appearance before the Superior Court judge assigned to handle LaMorgia's charges. At that time, Leek wore a yellow golf shirt bearing a Corrections "boot camp" insignia.

On September 5, 2003, Leek appeared on behalf of LaMorgia at his sentencing hearing in Burlington County for the purpose of seeking leniency. Leek addressed the judge, and in the course of his remarks, identified himself as a Corrections Sergeant.

In a letter dated December 2, 2003, to the sentencing judge in Camden County, Leek asked the judge to be lenient with LaMorgia on his Camden County charges. The letter was written on church letterhead and stated the following:

Dear Judge[]:

My name is Rev. Charles R. Leek Jr. and I am writing this letter in reference to the sentencing phase of Mr. Bernard LaMorgia. I am the Pastor of Kingdom Life Ministries in Westhampton, New Jersey. . . . I am also employed as a Sergeant for State of New Jersey Department of Corrections. I am currently a shift commander at the Stabilization and Reintegration Program formally known as the S.R.P. Boot Camp.

I first became acquainted with Mr. LaMorgia in November 2002 while ministering at Burlington County Jail. During that time he showed great interest in receiving help. In the beginning of January, four days after being released from Burlington County Jail, he came to Liberty Tabernacle asking for help with changing his life. On January 12, 2003, Mr. LaMorgia voluntarily entered the New Life Transitional Group Home.

New Life Transitional Group Home was a program for men. It involved many aspects that encourage change within a man's life. . . . Needless to say as a pastor I loved these men, but I am also a Drill Sergeant for [the] State Department of Corrections Adult Bootcamp and I demanded and I demanded a lot from them. Many men did not stay. For those that chose to stay, I demanded integrity in every area of their lives.

While in this program, Mr. LaMorgia made great strides in changing his life. . . . [examples of how he changed his life].

Therefore I am requesting that during the sentencing phase of Mr. LaMorgia, you take in[to] consideration not only what Mr. LaMorgia has done up to this point to change his life, but also what is best for the true transformation of the whole man in this particular case. Mr. LaMorgia is about to take a plea bargain with the court for the crimes he has committed and is ready to take responsibility for. This plea is for a 6 1/2 year State Prison Sentence. As a Correction Sergeant, I believe this sentence is more than fair, but I have reservations as to whether this would be best for Mr. LaMorgia or society in this case. I know that on this sentence Mr. LaMorgia will probably make parole in about 3 1/2 years. He will more than likely be place[d] in one of our full minimum camps within a short period of time. This is hardly hard time, yet it is unproductive time. As you and I know both know, the system is not set up for those that are truly trying to transform their lives. Therefore I would like to request, that if at all possible these months not be served in vain, but rather be served in some capacity outside of incarceration. He has begun to make great strides in his life and I would hate to lose the ground we have gained.

As public servants it is often difficult not to lose sight of why we serve. We serve not only to protect the public today and to ensure justice through punitive measures but also to transform lives to ensure a better society for tomorrow. This is why the law gives us certain lea ways [sic] to weigh out justice differently according to each particular situation. I believe this is one of those situations. I believe we can do more in this case by not taking away hope. We can hope and believe that a man can change, and then give him the opportunity to walk it out [sic]. The law in this case gives us the opportunity to believe and take this chance. You can sentence Mr. LaMorgia in such a way that if he were to fail, the certainty of State Prison time would befall him, yet still give him the opportunity to succeed. I believe this would be the most productive path to take, both for Mr. LaMorgia and society at whole. Society can only benefit in the end if Mr. LaMorgia succeeds in life.

Sincerely,

Rev. Charles R. Leek Jr.

An assistant Camden County prosecutor filed a written complaint on March 5, 2004, with the Commissioner of Corrections about Leek's conduct in the Camden County case. Leek had appeared with LaMorgia in court in Camden a total of three times.

On April 19, 2004, Corrections served Leek with a preliminary notice of disciplinary action seeking a ninety-day suspension and charging him with the following violations: (1) conduct unbecoming a public employee, N.J.A.C. 4A:2-2.3(a)(6) and Human Resources Bulletin (HRB) 84-17 as amended, C11; (2) other sufficient cause, N.J.A.C. 4A:2-2.3(a)(11), violation of a rule, regulation, policy, procedure, order, or administrative decision, HRB 84-17 as amended, EO1; and (3) other sufficient cause, N.J.A.C. 4A:2-2.3(a)(11), intentional abuse or misuse of authority or position, HRB 84-17 as amended, E02. The section titled "Specification" on the preliminary notice stated the following:

Based on a Special Investigation Division investigation you appeared in Camden County Court in your departmental uniform on behalf of inmate Bernard LaMorgia, who was there for the sentencing phase. You made reference to the sentencing judge, . . . of your capacity as a Correction Sergeant in a letter dated December 2, 2004 more than once. You did not have written authorization to act in your capacity as a State of New Jersey Correction Sergeant on behalf of an inmate.

A DOC hearing resulted in a final notice of disciplinary action sustaining all charges and imposing a thirty-day suspension on May 27, 2004. After petitioner appealed that adverse decision, the matter was transferred to the Office of Administrative Law (OAL) where a hearing was conducted on April 19, 2006, and July 17, 2006. At the OAL hearing, Leek testified that LaMorgia showed up on the church steps on January 12, 2003, asking for help because he wanted to "get his life together and get it changed." Leek also maintained that when he appeared in the Camden County Superior Court with LaMorgia the first time, he had finished his shift earlier that day. He acknowledged wearing a gold shirt that day that said "Stabilization reintegration program boot camp," but insisted that shirt had never been part of the official uniform.

Leek explained that he had lost contact with LaMorgia in July 2003 because Leek had changed churches. A few months later, in November 2003, LaMorgia's defense attorney approached him and asked him to write a letter describing LaMorgia's accomplishments for the previous six or seven months. Leek testified that he did not know that he was "restricted in doing something of that nature."

Leek also testified that when he had mentioned in the letter to the Camden judge that he was a Corrections officer, he did not consider such a reference to be inappropriate. His purpose was to explain how he had knowledge of the Corrections system and why he wanted LaMorgia to stay "in the program." To his knowledge, no Corrections rule or regulation prohibits him from appearing in court on behalf of someone who is not at that time a prisoner or parolee from a State correctional facility. He asserted that there was a distinction between inmate and former inmate. With inmates and parolees, he conceded there is a risk of "undue familiarity," which is the only distinction that had ever been brought to his attention through training, memoranda or any rules and regulations.

The assistant Camden County prosecutor who filed the March 5, 2004 complaint testified on behalf of Corrections, stating that on two occasions, he had observed Leek sitting with LaMorgia in the courtroom. Leek was "dressed in what [he] believed to be a uniform" that had "designation of an officer in the logo and some type of wording that identified him as a police officer." The shirt was yellow with a black and dark blue logo on the chest area.

During the first two times the assistant prosecutor saw Leek with LaMorgia in the courtroom, he was under the impression that Leek was there in his official capacity as a representative of Corrections. He did not find out that Leek was there as a "spiritual advisor" until after Leek's second appearance.

As a result of the assistant prosecutor's March 5, 2004 letter, an investigator contacted him and asked if he had any documentation that supported his claims. Consequently, he obtained a copy of the courtroom video, which the Administrative Law Judge (ALJ) and the parties watched. It showed Leek wearing the yellow Corrections shirt with blue jeans and sneakers.

On cross-examination, the assistant prosecutor testified that during the few minutes of video he had watched, Leek did not speak to anyone. He also acknowledged that LaMorgia was not a Camden County inmate and was not in custody.

An assistant Burlington County prosecutor provided similar testimony in which he described Leek accompanying LaMorgia to court in Burlington County. At one point during those proceedings, Leek told the assistant prosecutor that he was with Corrections, but insisted that he was speaking in his capacity as a church elder. The assistant prosecutor recalled seeing Leek address the sentencing judge on behalf of LaMorgia. Leek had also written a letter to the judge on LaMorgia's behalf. The ALJ and the parties then watched the courtroom videotape of the sentencing hearing when Leek addressed the sentencing judge and urged him to be lenient when sentencing LaMorgia.

Three Corrections employees testified on behalf of Corrections. Elijah DuBois testified that if a person was not an inmate and has not been an inmate, but was merely accused of a crime, there was no prohibition on speaking on behalf of that person. John Curley testified that the shirt Leek wore to the court proceedings was either part of the then-current uniform or else was a prior version. He also testified that "[i]f you're wearing the Department of Corrections uniform you're representing the Department of Corrections." "Wearing the uniform," said Curley, involves wearing the complete uniform. "If you're wearing the uniform T-shirt, you're supposed to be wearing the whole uniform. You're not supposed to just wear half the uniform."

Finally, Curley testified that DOC rules and regulations prohibit Corrections employees from socializing or conducting business with inmates and ex-inmates because it would create a conflict of interest. Employees, however, are not prohibited from socializing with a person who has never been incarcerated, i.e. someone who has merely been accused of a crime. Curley did not identify any specific regulations that supported these statements.

Mark Yajcaji was the final witness to testify for Corrections. Yajcaji was a captain at the Garden State Youth Correctional Facility who had developed departmental policy on uniforms and was a member of the uniform committee. He testified that the shirt Leek wore to court in Camden in 2003 was the official uniform until 2002 when the logo changed.

Yajcaji also described the document entitled, "Law Enforcement Personnel Rules and Regulations." In Article IX, section 6, the rule states: "Officers shall neither use nor attempt to use their official positions to secure unwarranted . . . privileges or advantages either for themselves or others."

Yajcaji further testified about other prohibitions on the conduct of Corrections employees:

To identify yourself as a member of the New Jersey Department of Corrections. To what would be considered policies in the department to verbalize those to people outside of the Department of Corrections. Shortcomings, misgivings, inner policies of the department, these are all things that we are not allowed to put out basically to people that aren't in our community, the community of the Department of Corrections. This is because of the fact once again we're projecting our authority for the department. People, lay people that aren't aware of the inner workings that don't work in the department are not aware of the fact that you're not speaking on behalf of the department.

The ALJ upheld the thirty-day suspension in a decision dated October 16, 2006. She reasoned:

I am not persuaded by petitioner's assertions that: he was not in uniform when he appeared in court because the "boot camp" shirt was no longer part of the "official" uniform and he was not wearing the remaining items of the official uniform; that the specifications are deficient and should be dismissed because LaMorgia was not an inmate at the time he appeared before [the Camden judge] for sentencing; and that petitioner by becoming a corrections officer did not waive his First Amendment free speech rights.

In that regard, in addition to the undisputed facts, I further FIND that at the time LaMorgia first appeared before [the judge in Camden], he was already a former inmate of the Burlington County Jail. LaMorgia then entered into a plea agreement, which if accepted by [the judge in Camden], would have required he serve jail time. At the time petitioner Leek voluntarily submitted a letter on behalf of LaMorgia seeking leniency and relying upon his experience as a corrections officer in support of that request, LaMorgia was about to be sentenced.

I further FIND that petitioner Leek violated the rules and regulations by not obtaining permission from competent authority to submit a letter on behalf of an individual who was a former inmate and about to be incarcerated again. I FIND that this constitutes conduct unbecoming a public employee and violates the Conflict of Interest Rules and Regulations which the petitioner received and accepted as part of his employment as a corrections officer. The public is neither concerned nor need to be current on the modifications to the Corrections officers' uniforms. The issue is one of perception. A Corrections officer specifically chose to wear a part of his former uniform in public must accept the responsibility that the public perceives that individual to be representing the Department of Corrections. It has often been stated that law enforcement and corrections are para-military organizations. Such organizations can not be undermined by conduct such as that of the petitioner who voluntarily chose to publicly denigrate the Department of Corrections by offering personal opinions about the guise of DOC and while wearing components of DOC current or past official uniform clothing without any official permission by competent authority.

Based on the foregoing, I FIND that although petitioner does not have any prior disciplinary history, the imposition of a 30 day suspension is necessary to impress upon him the seriousness of his actions and deter him from similar future conduct. I FIND the petitioner's attempt to hide behind first amendment rights to lack merit. I further FIND his reliance on technicalities regarding not wearing the official uniform to demonstrate an unwillingness on his part to accept responsibility for his conduct.

On November 16, 2006, the ALJ's decision and findings of fact were accepted and adopted by the Merit System Board.

II.

This court will not overturn an agency decision "in the absence of a showing that it was arbitrary, capricious or unreasonable, or that it lacked fair support in the evidence." In re Carter, 191 N.J. 474, 482 (2007). An agency's interpretation of its own regulations is "entitled to great weight . . . since [it] is in the best position to understand what was meant by the regulation when it was promulgated." In re Hospitals' Petitions, 383 N.J. Super. 219, 239 (App. Div.), certif. denied, 187 N.J. 81 (2006).

"A court may not substitute its own judgment for the agency's even though the court might have reached a different result." Carter, supra, 191 N.J. at 483 (quoting Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992)). "Arbitrary and capricious action of administrative bodies means willful and unreasoning action, without consideration and in disregard of circumstances. Where there is room for two opinions, action is [valid] when exercised honestly and upon due consideration, even though it may be believed that an erroneous conclusion has been reached." Beattystown Cmty. Council v. Dep't of Envtl. Prot., 313 N.J. Super. 236, 248 (App. Div. 1998)(quoting Worthington v. Fauver, 88 N.J. 183, 204-05 (1982)).

A civil service employee's rights and duties are governed by the Civil Service Act, N.J.S.A. 11A:1-1 to -112.6. An employee covered by the Civil Service Act is subject to its provisions authorizing the discipline and termination of public employees. The general causes for such discipline are set forth in N.J.A.C. 4A:2-2.3(a). There are eleven causes for discipline provided in N.J.A.C. 4A:2-2.3(a), two of which are pertinent to this case: "conduct unbecoming a public employee" and "other sufficient cause." The DOC Human Resources Bulletin (HRB) "provides the Department's policy regarding types of offenses and penalties for both minor and major disciplinary actions."

In addition to the HRB and N.J.A.C. Title 4A, Corrections officers are also governed by "The Department of Corrections Rules and Regulations for Law Enforcement Personnel" (Rules). The Rules contain nine Articles that regulate officers' conduct. Article I, Section 1, specifically requires officers to abide by the regulations contained in the Rules.

On appeal, Leek argues that the Board's decision was arbitrary, capricious and unreasonable because (1) the ALJ's written opinion misstated the facts; (2) the Board's finding that his conduct was unbecoming was not supported by credible evidence in the record; (3) the Board's finding that he wore a former uniform is not supported by credible evidence in the record; and (4) there was no conflict of interest in petitioner's conduct.

III.

In his first argument, Leek contends that the ALJ "clearly misstates the undisputed facts presented on the record to Petitioner's detriment." Specifically, petitioner objects to the following finding made by the ALJ:

Such organizations cannot be undermined by conduct such as that of petitioner who voluntarily chose to publicly denigrate the Department of Corrections by offering personal opinions under the guise of the DOC and while wearing components of DOC current or past official uniform clothing without any official permission by competent authority.

Leek argues that this was a misstatement because he did not make any comments "while wearing components of DOC current or past official uniform clothing;" rather, his personal opinions were expressed in the letter. His argument lacks merit.

Leek has misinterpreted the ALJ's findings. We are satisfied that the ALJ found that Leek publicly denigrated the DOC on two separate occasions: (1) by offering personal opinions under the guise of the DOC, and (2) "while wearing components of DOC current or past official uniform . . . ." The ALJ's findings cannot reasonably be construed as a conclusion that both actions occurred simultaneously.

IV.

We now address Leek's three remaining arguments, but address them collectively because all three challenge the evidentiary basis for the Board's conclusion that Leek's actions constituted conduct unbecoming a Corrections employee and violated applicable regulations.

In imposing discipline upon Leek, Corrections relies on N.J.A.C. 4A:2-2.3(a)(6) and HRB 84-17, C11, which subject an employee to discipline for "conduct unbecoming a public employee." Conduct unbecoming a public employee includes "any conduct which adversely affects the morale or efficiency of the bureau . . . [or] which has a tendency to destroy public respect for municipal employees and confidence in the operation of municipal services." Hartmann v. Police Dept. of Ridgewood, 258 N.J. Super. 32, 40 (App. Div. 1992)(quoting Zeber Appeal, 398 Pa. 35, 43 (Sup. Ct. 1959)). As the Court observed, "'[i]n the regulation of a vast metropolitan police department the necessities of discipline, morale and public confidence should permit the establishment of a broad range of proscribed conduct, without detailing every possible offense, and thus without the precision required in criminal statutes and procedure.'" Karins v. Atlantic City, 152 N.J. 532, 546 (1998)(quoting Milani v. Miller, 515 S.W.2d 412, 417 (Mo. 1974)).

Generally, an agency's interpretation and application of its own regulation is given great deference. In re Hospitals' Petitions, supra, 383 N.J. Super. at 239. The determination, however, of what constitutes conduct unbecoming a public employee is primarily a question of law, and thus this court's scope of review is de novo. Karins, supra, 152 N.J. at 553.

Corrections asserts that Leek violated four specific portions of the Rules and that by so doing he engaged in "conduct unbecoming a public employee," N.J.A.C. 4A:2-2.3(a)(6), and conduct that constitutes "other sufficient cause," N.J.A.C. 2A:2-2.3(a)(11). The four portions of the Rules that Corrections alleges Leek violated are:

1. No officer shall act or behave, either in an official or private capacity, to the officer's discredit, or to the discredit of the Department. Law Enforcement Personnel Rules and Regulations Article III, Section 3.

2. No officer shall become unduly familiar with inmates who are incarcerated, on community release, or on parole status. Law Enforcement Personnel Rules and Regulations Article III, Section 4.

3. An officer shall report all prior relationships with inmates or parolees in writing to the Administrator, Superintendent or Agency Chief. Ibid.

4. Officers shall neither use nor attempt to use their official positions to secure unwarranted privileges or advantages, either for themselves or for others. Law Enforcement Personnel Rules and Regulations Article IX, Section 6.

Before we determine whether the Board was correct when it determined that Leek violated these provisions, we consider whether the Board was entitled to include LaMorgia, who was free on bail, in the definition of the term "inmate" in Article III, Sections 3 and 4, of the Rules. As Leek argues, LaMorgia was not confined or on community release or parole during the time periods in question. Consequently, he maintains that the Board erred when it concluded he violated the provisions of the Rules that concern "inmates."

An agency's interpretation of its own regulations is "entitled to great weight . . . since [it] is in the best position to understand what was meant by the regulation when it was promulgated." In re Hospitals' Petitions, supra, 383 N.J. Super. at 239. By adopting the ALJ's finding, the Merit System Board has interpreted "inmate" to include an inmate from a correctional facility outside the DOC. This interpretation is reasonable in light of the purpose of this rule. The Merit System Board has previously stated that the purpose of its policy against undue familiarity is "to prevent breaches of security, loss of morale and inmate blackmail." Bowden v. Bayside State Prison, 268 N.J. Super. 301, 303 (App. Div. 1993), certif. denied, 135 N.J. 469 (1994).

The Merit System Board could have reasonably concluded that breaches of security, loss of morale, and blackmail could still occur even when the inmate is not yet confined in State prison. LaMorgia faced a six and one-half year term of imprisonment in the State correctional system as part of his Camden plea agreement. LaMorgia was thus highly likely to soon become a State inmate even though he was not a State inmate at the time of Leek's letter. Accordingly, we conclude that the agency's interpretation of its own regulations in a manner that classified LaMorgia as an "inmate" was reasonable and is therefore entitled to our deference. See In re Hospital's Petitions, supra, 383 N.J. Super. at 239.

We turn now to the four Rules. We are satisfied that the ALJ and the Board correctly concluded that Leek's actions violated all four and consequently was conduct unbecoming a Corrections employee. We turn first to Article III, Section 4, which prohibits Corrections officers from "becom[ing] unduly familiar" with inmates. Unquestionably, by repeatedly sitting next to LaMorgia in the Camden courtroom, writing a leniency letter to the Camden judge on LaMorgia's behalf, and addressing the Burlington County judge in open court and advocating for leniency on LaMorgia's behalf, Leek became "unduly familiar" with an inmate. Such conduct was antithetical to the objective and dispassionate attitude toward inmates that Corrections has a right to expect from its officers. The Board properly concluded that Leek violated this section.

Another portion of Article III, Section 4, requires Corrections officers to "report all prior relationships with inmates" to the prison Superintendent or Administrator. The record demonstrates that Leek never reported his relationship with LaMorgia to his supervisors. The Board correctly found that Leek violated this section as well.

Article III, Section 3, prohibits an officer from behaving in a fashion, whether "in an official or private capacity," in a manner that results in "discredit" to himself or to the Department. When Leek utilized his position as a Corrections Sergeant to proffer his personal opinion, he did so in an effort to persuade two judges not to sentence LaMorgia to a term of imprisonment. Leek serves in a law enforcement capacity. The ALJ implicitly concluded that Leek's pleas for lenient treatment of LaMorgia were antithetical to his official responsibilities, and that Leek consequently discredited himself, or Corrections, or both, by advocating that both judges disregard the negotiated plea agreements, which called for terms of imprisonment, and instead sentence LaMorgia to a term of probation.

Moreover, Leek's comments to both sentencing judges included pointed criticisms of Corrections. In his letter, Leek told the Camden judge that any time LaMorgia would spend in prison would be "unproductive time" because "[a]s you and I both know, the system is not set up for those that are truly trying to transform their lives." Leek commented that if LaMorgia were to be sentenced to prison time, as the plea agreement specified, those "months" would be "served in vain." His comments in Burlington County were equally critical of Corrections. According to the ALJ, the courtroom videotape shows Leek stating that incarceration would be "detrimental" to LaMorgia. The record amply supports the ALJ's and the Board's conclusion that Leek's comments criticizing Corrections brought "discredit" to Corrections, in violation of Article III, Section 3, of the Rules.

Finally, we are satisfied that the ALJ and the Board correctly concluded that Leek used, or attempted to use, his official position "to secure unwarranted privileges or advantages" for LaMorgia, in violation of Article IX, Section 6, of the Rules. There is no question that Leek used his official position when he advocated a non-custodial sentence for LaMorgia. He identified himself as a "Sergeant for the State of New Jersey, Department of Corrections" in the leniency letter and relied on his background there as a factual basis for the leniency request.

When he addressed the judge in Burlington County, he told the judge that his "work in the Department" enabled him to conclude that incarceration would be harmful to LaMorgia. Apparently, Leek was successful because when the Burlington County judge decided to undercut the plea agreement and instead sentence LaMorgia to probation, the judge commented that he relied on Leek's comments because Leek "is a Corrections officer and he has seen it all."

Nor can we ignore the fact that Leek appeared in court in Camden wearing a Corrections shirt. Although the shirt was no longer in use as part of the official uniform, it nonetheless displayed the Corrections insignia. It is immaterial whether Leek was in a current uniform or not. Neither the judge nor a member of the public would know the subtle distinctions between the current and the former uniform. What is of significance is that Leek chose to wear that shirt to enhance the credibility of his leniency pleas and to reinforce his claim to inside knowledge as a Corrections employee. He thus "used" his official position. The record amply supports the Board's conclusion that Leek used his official position to "secure unwarranted privileges or advantages" for another, in violation of Article IX, Section 6.

V.

Last, Leek argues that the sanctions imposed against him for writing the leniency letter violate his First Amendment free speech rights. This argument lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We add only the following comments. An employee's right to free speech is protected from interference by his employer only if the employee's speech may be "fairly characterized as constituting speech on a matter of public concern" that "relate[s] to any matter of political, social, or other concern to the community." Karins, supra, 152 N.J. at 549 (quoting Connick v. Myers, 461 U.S. 138, 146, 103 S. Ct. 1684, 1690, 75 L. Ed. 2d 708, 719 (1993)). Leek's comments about LaMorgia's sentence do not satisfy that standard. Thus, Corrections' right to ensure the proper functioning of its facilities and its employees vastly overrides any right Leek may have had to make the comments he did. See ibid.

 
Affirmed.

The shirt was not a current DOC shirt because Corrections had by then redesigned the shirt. Nonetheless, the shirt bore a DOC insignia. Leek was not wearing the trousers or shoes that were part of his official DOC uniform.

The record states that this violation is N.J.A.C. 4A:2-2.3(a)(9). The code, however, states that "other sufficient cause" is codified at subsection (11) and has not been amended since 1990. Thus, we conclude that the reference to subsection (9) is a clerical error.

The videotape was not provided to us; however, at appellate oral argument counsel for Leek acknowledged that Leek's comments to the judge in Burlington County were similar to those contained in Leek's letter to the Camden judge.

As the ALJ observed, in the Burlington matter Leek's comments persuaded the sentencing judge to undercut the plea agreement, which called for a four-year term of imprisonment, and instead sentence LaMorgia to a term of probation.

(continued)

(continued)

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A-2350-06T3

May 14, 2008