IN THE MATTER OF HECTOR FUENTES

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3323-05T23323-05T2

IN THE MATTER OF HECTOR

FUENTES.

_______________________________

 

Argued May 23, 2007 - Decided June 15, 2007

Before Judges Lefelt and Parrillo.

On appeal from a Final Decision of the Merit System Board, 2004-2857.

Charles J. Sciarra argued the cause for appellant

Hector Fuentes (Sciarra & Catrambone, attorneys; Mr. Sciarra, of counsel; Mr. Sciarra and Cynthia B. Molkenthin, on the brief).

Kathleen Asher, Deputy Attorney General, argued the

cause for respondent New Jersey Juvenile Justice

Commission (Stuart Rabner, Attorney General of New

Jersey, attorney; Patrick DeAlmeida, Assistant Attorney General, of counsel; Ms. Asher, on the brief).

PER CURIAM

Appellant Hector Fuentes appeals from the final decision of the Merit System Board (Board) upholding the appointing authority's imposition of a thirty-day suspension sanction on him. We affirm.

Fuentes was a Senior Correction Officer (SCO) with the Juvenile Justice Commission (JJC) in the Department of Law and Public Safety, assigned to the Jamesburg Training School for Boys. On March 28, 2003, he was charged with a violation of N.J.A.C. 4A:2-2.3(a)6, conduct unbecoming a public employee, and N.J.A.C. 4A:2-2.3(a)11, other sufficient cause defined as a violation of Human Resource Bulletin 84-17 C.4 - verbal abuse of a resident inmate. The charges stemmed from an incident that occurred on March 27, 2003 between Fuentes and a juvenile inmate. At the conclusion of the departmental hearing, the JJC found Fuentes guilty of the charges and imposed a thirty-day suspension.

Fuentes appealed and the matter was transmitted to the Office of Administrative Law (OAL) where a hearing was held at which conflicting versions of the incident were presented. Grace Ribaudo, a New Jersey licensed school psychologist at Jamesburg, testified that she heard loud voices outside of her window on the second floor of Jamesburg's Wilson Building. She opened the window and saw Fuentes pointing at residents inside a State van. Ribaudo heard the officer say, "I'll track you down", "I'm going to fuck you", "your mother sucks dick", and "take it up the ass." Ribaudo listened to the conversation for about ten minutes and characterized it as "very threatening."

Fuentes' superior, Lieutenant James Mercer, also witnessed the incident, but related a different version. Mercer heard Fuentes call one of the inmates "a fucking piece of shit", after the inmates bombarded him with insults and threats to him and his family. Mercer intervened and told Fuentes to "knock it off" and "not to feed into the nonsense." One of the inmates quieted after Mercer intervened. The other continued with language that Mercer described as "disgusting." Fuentes supposedly said no more after Mercer counseled him. Mercer left the scene when the van was about to drive away and later filed an incident report after receiving Ribaudo's report.

At the close of respondent's case, Fuentes moved for a judgment of involuntary dismissal, which the administrative law judge (ALJ) granted on the basis that he did not find Ribaudo credible and that the language Fuentes used in front of the inmate, as related by Mercer, did not constitute verbal abuse. Specifically, as to the latter, the ALJ concluded that "[u]sed by a correction officer when speaking to any employee, official or visitor at Jamesburg the words would be offensive, and unbecoming of a public employee. When used to remind an inmate who is [the] correction officer and who is the inmate[,] [the] abusiveness fades into the necessities of reasserting authority."

The Board remanded the matter to the ALJ to develop a more complete hearing record and present a complete explanation of the testimony and basis for his credibility determinations. On remand, the ALJ reiterated his finding that the testimony of Ribaudo was incredible, while the testimony of Mercer was credible, and once again concluded that Fuentes' retort was not verbal abuse per se "since the inmates were using the very same language." Accordingly, the ALJ dismissed the charges against Fuentes.

The Board reversed and reinstated the JJC's imposition of a thirty-day suspension. While accepting the ALJ's credibility determination, the Board disagreed with his conclusion that Fuentes' language did not constitute verbal abuse. The Board reasoned:

Furthermore, even though Mercer testified that he did not consider the appellant's retort (calling the inmate "a fucking piece of shit") to be verbal abuse, Mercer counseled the appellant for his use of language and told him to "knock it off" and "not to feed into the nonsense." The ALJ himself characterized the appellant's language toward the inmates as a "harangue." Regardless of the provocations directed towards the appellant by the inmates, the appellant had a professional duty as a Senior Correction Officer to remain in control of his behavior and speech. Finally, the Board finds especially noteworthy the fact that, in his report of the incident, Mercer stated that he intervened in the incident and talked with the two inmates, calming down at least one of them, apparently without the need to resort to profanity.

Moreover, as a Senior Correction Officer, the appellant is a law enforcement employee who maintains safety and security in the potentially dangerous environment of a juvenile detention center, while promoting adherence to and respect for the law among his residents. Of critical importance is that the appellant should provide a positive role model for his juvenile residents, so that they may be rehabilitated and reenter society with a greater chance of success. Additionally, a Senior Correction Officer is held to a higher standard of duty by the public. This standard includes upholding an image of utmost confidence and trust, since Senior Correction Officers, like municipal Police Officers, hold highly visible and sensitive positions within the community. The public expects and demands prison guards to follow orders and exhibit a respect for rules, regulations, procedures, and policies. See Moorestown v. Armstrong, 89 N.J. Super. 560 (App. Div. 1965), cert[if]. denied, 47 N.J. 80 (1966). See also In re Phillips, 117 N.J. 567 (1990). Therefore, the Board finds that there is sufficient evidence that the appellant was guilty of verbally abusing an inmate based on Mercer's observation alone and upholds the charges.

On appeal, Fuentes raises the following issues:

I. Board Was Arbitrary and Capricious in Reversing the ALJ Decision Despite Agreeing With His Credibility Determinations.

A. The Board Adopts the ALJ's Credibility Determinations Yet Imposed a Thirty Day Suspension.

II. Appellant Did Not Commit Any Violation Rising to "Verbal Abuse".

III. Appellant Had No Notice of the Charges Imposed Based Upon the Notice of Discipline.

We have considered each of these issues in light of the record, the applicable law, and the arguments of counsel, and we are satisfied that none of them is of sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(D) & (E). Accordingly, we affirm substantially for the reasons stated by the Board in its written decision of February 9, 2006.

 
Affirmed.

(continued)

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A-3323-05T2

June 15, 2007