IN THE MATTER OF TOSHENA GRIFFIN, DEPARTMENT OF CORRECTIONS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5042-09T3

IN THE MATTER OF TOSHENA

GRIFFIN, DEPARTMENT OF

CORRECTIONS.

________________________________________________________________

November 4, 2011

Argued October 12, 2011 - Decided

Before Judges Carchman and Baxter.

On appeal from the Civil Service Commission, Docket No. 2010-1210.

Kevin P. McCann argued the cause for appellant Toshena Griffin (Chance & McCann, attorneys; Deana L. Walsh, on the brief).

Nicole P. Grosvenor, Deputy Attorney General, argued the cause for respondent Civil Service Commission (Paula T. Dow, Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Ms. Grosvenor, on the brief).

PER CURIAM

Appellant Toshena Griffin, a senior corrections officer (SCO), appeals from a final decision of the Civil Service Commission (CSC) sustaining disciplinary charges of conduct unbecoming a public employee, N.J.A.C. 4A:2-2.3; and a violation of a rule, regulation, policy, procedure, order or administrative decision, namely the prohibition of electronic communication - devices within designated areas of New Jersey Correctional facilities, HRB 84-17, and PSM.001.017. As a result, the CSC imposed the penalty of removal from her public employment as a Senior Corrections Officer at Bayside State Prison. We affirm.

We briefly set forth the relevant facts emerging from the record developed at the hearing before the Office of Administrative Law.

Griffin was employed as an SCO by the Department of Corrections (DOC) from 2001 until September 24, 2009. During this period, Griffin worked a general assignment, including daily assignments to fill in for corrections officers who were not on duty, at Bayside State Prison in Leesburg.

On June 24, 2009, Wilburt Little, an inmate at Bayside, alleged that he had been assaulted by Bayside staff members, including Griffin and Dawn Linthicum, another female corrections officer and personal friend of Griffin. Little alleged that Griffin had shown him her cell phone and said she was going to call other officers and get him. DOC investigated Little s complaint and assigned DOC Senior Investigator Edward Soltys to determine whether Griffin had brought a cell phone into the secured facility.

DOC had previously promulgated a cell phone policy, PSM.001.017, providing in relevant part, that all persons, both employees and non-employees of the New Jersey Department of Corrections are prohibited from bringing electronic communication devices, including cell phones, within specified secured perimeters of New Jersey s correctional facilities. The cell phone policy states that its purpose is [t]o establish policy and guidelines to address the security threat posed to the New Jersey Department of Corrections, its employees and the public at large . . . . Finally, the policy establishes the penalty for violation of its terms by employees: First Offense Five days to removal; Second Offense Thirty days to removal; Third Offense Removal.

On August 14, 2009, Griffin was served with a Preliminary Notice of Disciplinary Action (the First PND) by the DOC. The First PND charged Griffin with conduct unbecoming a public employee and violation of the cell phone policy.

Griffin contested the First PND at an intra-departmental hearing. Griffin received a Final Notice of Disciplinary Action (FND) with the penalty of removal, effective September 24, 2009.1

Griffin appealed the disciplinary action, and on October 2, 2009, the matter was transferred to the Office of Administrative Law (OAL) for a hearing, N.J.S.A. 52:14B-1 to -15 and 14F-1 to -13.2

At the hearing, the Administrative Law Judge (ALJ) considered the testimony of Soltys, Linthicum, Scott Derby an administrative captain at Bayside, Amber Stubbs Griffin s daughter, Betty Bowman Griffin s mother, and Griffin. Throughout the hearing, Griffin maintained that she did not use the cell phone at Bayside, and that it was possible that Stubbs or Bowman may have used the phone.

According to Soltys, he was assigned to investigate the events surrounding inmate Little's complaint. During the course of the investigation, he conducted interviews with Bayside staff, including Griffin, and inmate witnesses; additionally, Soltys subpoenaed Griffin's cell phone records from her cell phone provider, Sprint. Soltys described his investigation into the cell phone records, including how he analyzed the records and identified the calls and texts sent from and received by Griffin's cell phone. Soltys determined, and the ALJ found that on June 24, 2009, while Griffin was working General Assignment at Bayside, four text messages were sent between Griffin's and Linthicum's cell phones, and two texts were sent from Griffin's cell phone to her boyfriend's cell phone.

Soltys stated that the cell phone policy applies to all DOC correctional facilities in New Jersey and that bringing a cell phone in a secured area is a "serious security breach" that "could cause an array of problems." Griffin, herself, acknowledged the potential problems that could result if the cell phone policy was violated.

Linthicum admitted bringing and using her cell phone in the secured area, but did not implicate Griffin. In his findings, the ALJ states that Linthicum

acknowledged her personal friendship with [Griffin], and appeared to tailor her testimony so as to avoid implicating [Griffin] . . . . She claimed no recollection of any of the relevant events, and seemed to go out of her way to offer alternate possibilities for the communications between the two cell phones on June 24. Her testimony was evasive and biased in [Griffin s] favor.

Likewise, Griffin's two other witnesses, Stubbs and Bowman, failed to account for the location of the cell phone on the date in question.

At the close of the evidence, the ALJ addressed the key findings in his Initial Decision. First, as to the dangers of a breach of the cell phone policy, the ALJ found that cell phones can pose a threat to the security of the prison. "[T]he purpose of the policy is to insure that inmates do not attain access to unmonitored communication devices. Such devices can be used for any number of nefarious purposes, including the planning of an escape."

The ALJ also found Griffin "brought her cell phone inside the secured perimeter." Key to this finding was the text message sent from Griffin's cell phone to her boyfriend's cell phone while Griffin was at work. Griffin, "and not Stubbs or Bowman, had physical possession of the cell phone on the afternoon of June 24, 2009."

In addressing the credibility of appellant's witnesses, the ALJ found that although Stubbs began her testimony with confidence and a well-rehearsed story . . . , she wilted on cross examination . . . . She had no recollection of whether she had the cell phone in her possession on June 24, 2009 . . . . Stubbs testimony [was] at best unreliable and at worst incredible. Similarly, Bowman offered no testimony . . . to conclude that she was in possession of [Griffin s] cell phone on June 24, 2009, between 2:00 p.m. and 10:00 p.m.

Ultimately, the Initial Decision (1) dismissed the conduct unbecoming charge, (2) upheld the charge of violating the cell phone policy, and (3) reduced the penalty from removal to a six-month suspension. As to the penalty, the ALJ concluded:

In balance, I am not satisfied that progressive discipline has been satisfied. Appellant is a nine year employee with a generally positive record. Nothing before me shows that appellant brought the cell phone inside the secured perimeter for any nefarious purpose . . . . Under the circumstances, appellant must be severely punished, but I am not persuaded that her termination is required.

Following the filing of exceptions, the CSC entered a Final Decision that adopted the ALJ's findings of fact and credibility determinations. However, the CSC sustained Griffin's charge of conduct unbecoming, thereby overturning the ALJ, and rejected the ALJ's modification of the penalty, thereby affirming the DOC's decision to remove Griffin.

This appeal followed.

On appeal, appellant asserts that the ALJ correctly reduced the penalty from removal to suspension since, considering the totality of the circumstances, removal is a disproportional penalty to the offense; the CSC arbitrarily and capriciously reinstated the charge of conduct unbecoming a public employee; and the ALJ and CSC improperly relied on "potentially unreliable" cellular telephone transmission records in the findings of fact.

Our analysis requires a recognition of the limited scope of review when evaluating agency decisions. We will defer to the ultimate determination of an administrative agency unless it shows that it was arbitrary, capricious or unreasonable, that it violated legislative policies expressed or implied in the enabling legislation, or that the findings on which the decision was based were not supported by substantial, credible evidence. In re Virtua-West Jersey Hosp., 194 N.J. 413, 422 (2008). As we have previously noted:

When an error in the factfinding of an administrative agency is alleged, our review is limited to assessing whether sufficient credible evidence exists in the record below from which the findings made could reasonably have been drawn. Close v. Kordulak Bros., 44 N.J. 589, 599 (1965). This review must encompass "the proofs as a whole" and must take into account "the agency's expertise where such expertise is a pertinent factor." Ibid.

[City of Plainfield v. N.J. Dept. of Health and Senior Servs., 412 N.J. Super. 466, 484-85 (App. Div.), certif. denied, 203 N.J. 93 (2010).]

"The burden of demonstrating that the agency's action was arbitrary, capricious or unreasonable rests upon the [party] challenging the administrative action." In re Arenas, 385 N.J. Super. 440, 443-44 (App. Div.), certif. denied, 188 N.J. 219 (2006) (citing McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 563 (App. Div. 2002) and Barone v. Dep't of Human Servs., 210 N.J. Super. 276, 285 (App. Div. 1986), aff'd, 107 N.J. 355 (1987)).

Absent arbitrary, unreasonable, or capricious action, or a lack of support in the record, "[a]n administrative agency's final quasi-judicial decision will be sustained . . . ." In re Herrmann, 192 N.J. 19, 27-28 (2007). "That deferential standard applies to the review of disciplinary sanctions as well." Id. at 28. "In light of the deference owed to such determinations, when reviewing administrative sanctions, the test is whether such punishment is so disproportionate to the offense, in light of all the circumstances, as to be shocking to one's sense of fairness." Id. at 28-29 (quoting In re Polk, 90 N.J. 550, 578 (1982)) (internal quotation and editing marks omitted). "The threshold of 'shocking' the court's sense of fairness is a difficult one, not met whenever the court would have reached a different result." Id. at 29.

In challenging the ALJ and CSC s determination as to the merits of the charges against her, Griffin focuses on the contention that the ALJ and CSC erred in relying upon the cellular telephone transmission records in finding that Griffin had a cell phone within the secured area. Specifically, Griffin contends that the ALJ "never addressed the reliability of the data . . . from the phone records . . . [and] relied solely upon the records and the timestamp of one single message to find misconduct . . . ."

Under the "residuum rule," N.J.A.C. 1:1-15.5, an ALJ may admit hearsay, and the evidence "shall be accorded whatever weight the judge deems appropriate taking into account the nature, character and scope of the evidence, the circumstances of its creation and production, and, generally, its reliability." However, there must be a residuum of legally competent evidence in the record to support each ultimate finding of fact. N.J.A.C. 1:1-15.5; In re Tenure Hearing of Cowan, 224 N.J. Super. 737, 750 (App. Div. 1988).

Notwithstanding Griffin s failure to object to the reliability of the cell phone records at the hearing or in a pre-hearing motion, there is sufficient competent evidence in the record to support the ALJ's findings. Soltys testified that he subpoenaed Griffin's phone records from Sprint, Griffin's cell phone service provider; the records establish that Griffin's cell phone was used to send text messages to Linthicum's cell phone and to Griffin's boyfriend's cell phone during the time period when Griffin was working in a secured area at Bayside; and Linthicum admitted bringing her own cell phone into the secured perimeter that day.

Additionally, the ALJ, after observing their testimony, found that Griffin's daughter and mother were neither reliable nor credible, and that neither witness could establish that she was in possession of the cell phone while Griffin was at work on June 24, 2009.

Linthicum's testimony that "every[body] gets [delayed] text[s]," upon which Griffin relies, failed to demonstrate that the timestamps on the cell phone records acquired from Sprint were unreliable. Without more, Griffin did not meet her burden of demonstrating that the factual findings and conclusions derived therefrom were arbitrary, capricious, or unreasonable.

Griffin next contends that the CSC erred in finding that the DOC sustained the charge of conduct unbecoming a public employee, N.J.A.C. 4A:2-2.3. She argues that although she was found to have brought her cell phone in a secured area, such conduct does not rise to the level of conduct unbecoming.

"The determination of what constitutes conduct unbecoming a public employee is primarily a question of law." Karins v. City of Atlantic City, 152 N.J. 532, 553 (1998). While characterized as an "elastic" term, "conduct unbecoming," has been defined as "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." Id. at 554 (quoting In re Emmons, 63 N.J. Super. 136, 140 (App. Div. 1960)). See also Hartmann v. Police Dep't of Ridgewood, 258 N.J. Super. 32, 40 (App. Div. 1992). As we observed in Hartmann:

[A] finding of misconduct [need not] be predicated upon the violation of any particular rule or regulation, but may be based merely upon the violation of 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.

[Hartmann, supra, 258 N.J. Super. at 40 (citation omitted).]

In sustaining the charge, the CSC explained:

[T]he Commission is mindful that a Senior Correction Officer is a law enforcement employee, who must help keep order in the prisons and promote adherence to the law. A Senior Correction Officer, like a municipal Police Officer, holds a highly visible and sensitive position within the community and the standard for an applicant includes good character and an image of utmost confidence and trust . . . . In the instant matter, [Griffin] subjected the correctional facility and the public to possible harm by bringing a cell phone into a secured facility. Thus, it is clear that the failure of [Griffin] . . . to adhere to policy undermined her position, affecting the public s respect for public entities and public employees as a whole. Therefore, [Griffin s] conduct was unbecoming and the charge of conduct unbecoming a public employee has been sustained.

We agree with the CSC. In a correctional setting, the obvious harm that can be created by Griffin s violation of the DOC regulations is readily apparent. A cell phone in this context is not merely a convenience but a device that could wreak havoc with the safe operation and maintenance of such a facility and those entrusted with the responsibility of operating a correctional institution. We conclude that the CSC did not exceed its proper scope of review, properly relied on the findings of fact and credibility determinations of the ALJ, and appropriately determined that Griffin's actions supported a charge of conduct unbecoming. Cf. In re Parlow, 192 N.J. Super. 247 (App. Div. 1983) (holding that the CSC erred by considering facts outside the record when reviewing an ALJ decision).

Finally, Griffin contends that the CSC s decision to sustain Griffin s removal was disproportionate to her offense because "the public good gained from her employment outweighs the severity of the infraction which she is alleged to have committed." DOC asserts that removal was the only appropriate penalty because of the severity of breaching the cell phone policy.

The concept of "progressive discipline" has long been utilized when determining the appropriate penalties for the misconduct of public employees. Herrmann, supra, 192 N.J. at 29-30. That is, an employee s "past record," including his or her reasonably recent history of promotions, commendations, and formally or informally adjudicated disciplinary actions "may be resorted to for guidance in determining the appropriate penalty for the current specific offense." Town of West New York v. Bock, 38 N.J. 500, 523-24 (1962). An employee s past record can support the imposition of a more severe penalty or, conversely, be used to mitigate the penalty of a present offense. Herrmann, supra, 192 N.J. at 30-33.

The Supreme Court most recently interpreted the concept of progressive discipline in In re Stallworth, 208 N.J. 182 (2011). There, we had reversed the CSC's decision to reduce petitioner's penalty and reinstated the appointing authority's decision to terminate petitioner. Id. at 186. On review, the Court stated:

To assure proper "progressive discipline," and a resulting penalty based on the totality of the work history, an employee's past record with emphasis on the "reasonably recent past" should be considered. [Bock, supra, 38 N.J. at 524.] This includes consideration of the totality of the employee's work performance including all prior infractions. See [In re Carter, 191 N.J. 474, 484 (2007).] As already noted, progressive discipline is a flexible concept, and its application depends on the totality and remoteness of the individual instances of misconduct that comprise the disciplinary record. The number and remoteness or timing of the offenses and their comparative seriousness, together with an analysis of the present conduct, must inform the evaluation of the appropriate penalty. Even where the present conduct alone would not warrant termination, a history of discipline in the reasonably recent past may justify a greater penalty; the number, timing, or seriousness of the previous offenses may make termination the appropriate penalty.

[Id. at 199.]

Because the Court could not "conclude from the [CSC's] statement of reasons that it adequately considered [petitioner's] entire record of misconduct" in conformity with N.J.S.A. 52:14B-10, it upheld our decision to reverse and remand to the CSC for reconsideration. Id. at 200.

"[P]rogressive discipline has been bypassed when an employee engages in severe misconduct, especially when the employee s position involves public safety and the misconduct causes risk of harm to persons or property." Herrmann, supra, 192 N.J. at 33. For instance, in Henry v. Rahway State Prison, the Court reversed the CSC and reinstated the penalty of removal of a prison employee who was found to have falsified a report. 81 N.J. 571 (1980). There, the Court upheld the findings of fact by the CSC, but concluded the CSC "did not consider adequately the seriousness of the charges." Henry, supra, 81 N.J. at 580. While "progressive discipline is a worthy principle[,] . . . it is not subject to universal application when determining . . . [the] quantum of discipline." Herrmann, supra, 192 N.J. at 36.

Maintaining discipline and order over both inmates and employees is crucial to properly operate prison facilities. Bowden v. Bayside State Prison, 268 N.J. Super. 301, 305-306 (App. Div. 1993), certif. denied, 135 N.J. 469 (1994) (citing Henry, supra, 81 N.J. at 579). In Bowden, the appellant prison guard was removed from his position for gambling with inmates. Id. at 303. Although the Merit System Board reduced the guard s penalty from termination to a six-month suspension, we reversed and reinstated the removal. Id. at 303, 306. We reasoned: "[t]he appraisal of the seriousness of [a guard s] offense and degree to which such offenses subvert discipline at [a prison] are matters peculiarly within the expertise of the correction officials." Id. at 306.

Here, Griffin contends that we should apply the progressive discipline, consider her past record of commendations issued throughout her nine years of service, and reduce her penalty. However, the CSC did apply progressive discipline and nonetheless found the punishment of removal was warranted. After reiterating the ALJ's recommendation for a reduced penalty, and recognizing that Griffin received three commendations, the CSC observed the termination was warranted in light of Griffin's prior disciplinary history, which included a six-month suspension:

[A] review of [Griffin s] record reveals no mitigating exceptions. In only nine years of employment, the appellant has received the most severe suspension allowed, a six-month suspension. This six-month suspension cannot be considered lightly given that [Griffin] had subsequent discipline. Clearly, [Griffin] has not learned to adhere to rules. Furthermore, [Griffin] committed a very serious infraction in bringing a cell phone into a secured facility and the [CSC] finds it appropriate to defer to [Bayside s] assessment of the charges . . . . Therefore, the only proper penalty is removal.

The ALJ found that Griffin did bring a cell phone into the secured area at Bayside; found that Griffin was aware of DOC Policy Number PSM.001.017, prohibiting cell phones in the secured area; and found that "violation of this policy is an extremely serious matter." Although the ALJ found that Griffin did not bring the cell phone with any nefarious intentions and that no harm resulted, the CSC and DOC are clear that Griffin s intent, or lack there of, is inconsequential. Rather, what matters is the safety of the public, the prison staff, and the prisoners. See Herrmann, supra, 192 N.J. at 33. The CSC's decision satisfies the principles provided in Stallworth, supra. We conclude the CSC s Final Decision was not arbitrary, unreasonable, or capricious, and was proportional to Griffin's infraction.

1 Similar charges were also brought against correctional officer Dawn Linthicum. Linthicum admitted she had brought her cell phone into a secured area, and was punished with a 120-day suspension.

2 Prior to the hearing, Griffin was served with a second Preliminary Notice of Disciplinary Action (the Second PND). The Second PND charged Griffin with a violation of HRB84-17, Falsification, Intentional misstatement of material fact in connection with . . . [an] investigation[,] and for conduct unbecoming. The Second PND alleged Griffin made false statements during the September 11 intra-departmental hearing. On or about March 4, 2010, Griffin received an FND imposing the penalty of removal. Griffin appealed. Following submission of those charges to the OAL for disposition, appellant moved for summary disposition and dismissal. That application was granted, and the charges in the Second PND were dismissed. The CSC did not review the Second PND in its May 14, 2010 Final Decision. Subsequently, the CSC issued a Final Decision in favor of Griffin on the Second PND but withheld awarding damages or reinstatement pending the outcome of this appeal.