IN THE MATTER OF RHODA LIVINGSTON DEPARTMENT OF CORRECTIONS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3107-09T1

IN THE MATTER OF RHODA LIVINGSTON,

DEPARTMENT OF CORRECTIONS.

__________________________________

January 3, 2012

Submitted September 28, 2011 - Decided

Before Judges Sapp-Peterson and Ostrer.

On appeal from the Civil Service Commission, Docket No. 2010-1042.

Rhoda Livingston, appellant pro se.

Paula T. Dow, Attorney General, attorney for respondentDepartment ofCorrections (LewisA. Scheindlin, Assistant Attorney General, of counsel; Susan L. Olgiati, Deputy Attorney General, on the brief).

PER CURIAM

Rhoda Livingston appeals from the January 28, 2010 final administrative decision of the Civil Service Commission (CSC) denying reconsideration of its August 5, 2009 order, in which it accepted and adopted the June 25, 2009 initial decision of the Administrative Law Judge (ALJ) that sustained the charges the Department of Corrections (DOC) lodged against Livingston, but rejected the ALJ's recommendation for a 180-day suspension and instead upheld Livingston's removal as a senior corrections officer at Northern State Prison. We affirm.

On June 27, 2008, the DOC served Livingston with a preliminary notice of disciplinary action seeking her removal based upon 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, Offense Number C11; (2) other sufficient cause, N.J.A.C. 4A:2 2.3(a)(11); (3) improper or unauthorized contact with inmates - undue familiarity with inmates, parolees, their families or friends, Offense Number D4; and (4) violation of a rule, regulation, policy, procedure, order or administrative decision, Offense Number E1.

Three days earlier, DOC investigators interviewed Livingston, during which she admitted that she and Andre Nix, an inmate at Bayside State Prison, had previously lived together for about four years, until he was incarcerated. She told the investigators that she reported her relationship with Nix to Superintendent Lydell Sherrer (Sherrer), a former administrator with Northern State Prison, when she approached him to speak about her "fiancé." At that time, she asked Sherrer whether she could take Nix's son and grandchildren to visit Nix at the county jail. Sherrer told her "okay, that's your fiancé; no, I'm not going to allow you to go over there, but do not marry him." She had no further conversation with Sherrer about Nix. Sherrer did not advise her to write a report, and she did not submit a written report on her own.

Livingston did not request a hearing. A final notice of disciplinary action, sustaining all charges and removing her from her position, was issued on August 26, 2008. She appealed her removal and the matter was transferred to the Office of Administrative Law (OAL) as a contested case where a hearing was conducted on May 26, 2009. N.J.S.A. 52:14B-2(b).

Following the hearing, the ALJ issued an initial decision. He first noted there was no dispute that Livingston "was involved in a paramour relationship with Nix before he was an inmate, while he was an inmate at Bayside State Prison and subsequent to his release from Bayside State Prison" and that throughout that relationship Livingston "was employed as a [s]enior [c]orrections [o]fficer with the [DOC]." The ALJ noted further that a disputed issue surrounded Livingston's contention that she verbally informed Sherrer of the relationship. Part of the record before the ALJ included a memorandum from Sherrer denying Livingston reported the relationship to him and also stating that he, at no time, gave Livingston "verbal or written approval to visit her boyfriend[.]"

In his findings, the ALJ concluded the weight of the evidence clearly showed that Livingston "did not report her relationship with inmate Nix in writing at any time." He also rejected her contention she verbally notified Sherrer of her relationship with Nix and found that she was aware of her reporting obligations because she had received the DOC Law Enforcement Personnel Rules and Regulations during her orientation and "properly reported her son's incarceration." Finally, the ALJ noted Livingston "admitted that she attempted to conceal her identity on letters to Nix because she thought she would get into trouble for writing to him."

While concluding that DOC had sustained the charges against Livingston, the ALJ found two mitigating factors. First, he considered that Livingston was employed at Northern State Prison while Nix was imprisoned at Bayside State Prison, and this fact lessened the chance of Livingston compromising her integrity. Second, other than the underlying incident, Livingston had an unblemished career during her twelve-year employment with DOC. Additionally, he referenced several cases where corrections officers had engaged in inappropriate contact with inmates but received penalties other than removal. Based upon the mitigating factors he considered, as well as his review of the penalties imposed against corrections officers similarly involved in inappropriate contact with inmates, the ALJ recommended a 180-day suspension.

The DOC filed exceptions to the ALJ's initial decision, contending the ALJ erred in reducing the penalty. The CSC conducted its independent review of the record and issued a Final Administrative Action, in which it accepted and adopted the factual findings of the ALJ but rejected the ALJ's recommendation that Livingston's removal be modified to a 180-day suspension.

In finding removal appropriate, the CSC determined that the nature of Livingston's relationship with Nix was "surreptitious, as [Livingston] engaged in actions to conceal the relationship from her superiors." Additionally, as distinguished from other cases involving inappropriate contact with inmates, the CSC found that Livingston's relationship with Nix was significant:

[T]hey lived together when he was not incarcerated, she cared for his grandchildren, she supplied him with money while incarcerated and she kept in significant contact with him by letter, telephone and personal visits[.] [I]f he or another inmate who knew of their relationship was ever incarcerated in a facility where she was assigned, there would be a significant danger that their prior relationship would influence [Livingston's] treatment of Nix or an inmate who knew of their relationship and/or allow the inmate or Nix to unduly influence [Livingston]. Moreover, [Livingston's] attempts to conceal her relationship with Nix from the DOC establishes that she knew a relationship with an inmate was wrong[.] [O]therwise, there would have been no need to conceal their relationship. In this regard, the record reflects that [Livingston] was clearly aware of the requirement to report any relationship with an inmate since her relationship with Nix began after she became employed by the DOC and because she had reported the fact that her son had been incarcerated. Accordingly, the foregoing circumstances provide a sufficient basis to uphold the removal.

Livingston moved for reconsideration on January 28, 2010. She raised three grounds for reconsideration: (1) because DOC learned of her relationship with Nix in a prior disciplinary matter, there was no attempt to conceal their relationship from her superiors; (2) since there had been a prior investigation and disciplinary charges lodged against her in a previous disciplinary action, the current charges constituted double jeopardy; and (3) the penalty imposed was inconsistent with penalties imposed in other cases involving inappropriate contact with inmates by corrections officers. The CSC denied reconsideration, noting that Livingston's claim of newly discovered evidence was unaccompanied by any explanation why the proffered evidence had not been previously submitted. In addition, the CSC noted that Livingston was also challenging statements made by DOC during the hearing before the ALJ, where she declined an opportunity to testify and also to challenge the evidence presented. The present appeal followed.

As best we can discern from Livingston's brief, which fails to comply with Rule 2:6-2, she raises the following issues for our consideration on appeal: (1) there was insufficient evidence before the CSC to support DOC's determination that she had engaged in conduct unbecoming a public employee and other sufficient cause; and (2) mitigating factors as well as penalties, other than removal, imposed against corrections officers in similar cases warrant her reinstatement to her former position, the award of back pay, benefits and seniority.

"In the absence of a showing that it was arbitrary, capricious or unreasonable, or that it lacked fair support in the evidence," we will not disturb a final administrative agency decision. In re Carter, 191 N.J. 474, 482 (2007) (quoting Campbell v. Dep't. of Civil Serv., 39 N.J. 556, 562 (1963)). "Arbitrary and capricious action of administrative bodies means willful and unreasoning action, without consideration and in disregard of circumstances." Worthington v. Fauver, 88 N.J. 183, 204 (1982). The evidence upon which a final administrative agency decision is reached may include hearsay evidence, provided the agency's findings are not entirely based upon hearsay evidence. Weston v. State, 60 N.J 36, 51 (1972). Those findings must be supported by a residuum of legally competent evidence. Ibid.; In re Toth, 175 N.J. Super. 254, 262 (App. Div. 1980); N.J.A.C. 1:1-15.5. Finally, where, as in this case, the agency head departs from the recommendations of the ALJ, the Administrative Procedure Act expressly provides that in "reviewing the decision of an administrative law judge, the agency head may reject or modify findings of fact, conclusions of law or interpretations of agency policy in the decision, but shall state clearly the reason for doing so." N.J.S.A. 52:14B-10(c).

Based upon our careful review of the record, we discern no basis to disturb the CSC's determination here, which is supported by substantial credible evidence in the record. The CSC also had a clear and reasonable basis to depart from the recommendation of the ALJ that Livingston be suspended rather than removed. The record is replete with evidence that Livingston maintained a significant relationship with Nix during his incarceration, including numerous telephone conversations, supplying Nix with money and discussing with Nix ways in which to conceal their relationship, while fully aware of the DOC's policies prohibiting such conduct. The record fully supports the CSC's conclusion that Livingston's actions were especially egregious, "compromised the integrity" of Livingston, and constituted "a serious breach of security in a correctional f

Affirmed.