IN THE MATTER OF SALVATORE GIGLIO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

IN THE MATTER OF SALVATORE

GIGLIO, MONMOUTH COUNTY

SHERIFF'S DEPARTMENT.

_________________________________________________

March 19, 2014

Argued November 13, 2013 Decided

Before Judges Sabatino, Hayden, and Rothstadt.

On appeal from the Civil Service Commission, Docket No. 2011-3899.

Justin Lee Klein argued the cause for appellant Salvatore Giglio (Hobbie, Corrigan & Bertucio, attorneys; Michael R. Hobbie, of counsel; Mr. Klein, on the brief).

 
Steven W. Kleinman, Special County Counsel, argued the cause for respondent County of Monmouth (Andrea I. Bazer, Monmouth County Counsel, attorney; Mr. Kleinman, of counsel and on the briefs).

John J. Hoffman, Acting Attorney General, attorney for respondent Civil Service Commission (Pamela N. Ullman, Deputy Attorney General, on the statement in lieu of brief).

PER CURIAM

Petitioner Salvatore Giglio appeals from the August 15, 2012 final decision of the Civil Service Commission (the Commission), which upheld his removal from the position of corrections officer with the Monmouth County Sheriff's Office (MCSO). For the reasons that follow, we affirm.

I.

We discern the following facts from the record. Petitioner worked at the Monmouth County Correctional Institution (MCCI) for almost fourteen years. For approximately eleven years, he served as a "visiting officer" supervising inmate visitation. According to Deborah Kopp, sometime in May or June 2010, she was at the MCCI to visit an inmate named R.W.,1 with whom she had a long-term romantic relationship.2 Petitioner struck up a conversation with Kopp, and they eventually exchanged phone numbers. According to petitioner, he had met Kopp previously on an online dating website, and Kopp told him that she was at the MCCI to "tie up some loose ends" with an ex-boyfriend.

After their first meeting at the MCCI, petitioner and Kopp began a romantic relationship. In July 2010, Kopp told petitioner that she and R.W. had been in a relationship lasting almost seven years. Petitioner began residing with Kopp at her house in Freehold around September 2010. Petitioner knew that Kopp and R.W. owned the Freehold residence prior to R.W.'s incarceration, but believed that R.W. had ceased to possess an interest in the house due to a quitclaim deed he claimed Kopp showed him. However, R.W. was still listed on the recorded deed and mortgage. Additionally, according to R.W. and Kopp, R.W.'s documents and belongings were stored at the Freehold residence, and he still received mail there. Petitioner denied ever seeing any of R.W.'s possessions or mail there.

Petitioner and Kopp wed on December 15, 2010, in Las Vegas. Petitioner never told anyone at the MCCI of his marriage. Petitioner also did not inform the MCCI of his change of address despite being aware of the regulation requiring such notice and having updated his address four prior times.

R.W. became concerned in January 2011 that Kopp was dating a corrections officer because they had several conversations in which Kopp knew details of R.W.'s other visitors. Kopp also told R.W. she was married and was getting on with her life. On January 17, 2011, R.W. reported his concerns to Lieutenant Thomas Bollaro. After speaking with petitioner, Bollaro determined that Kopp's relationship with R.W. had ended, and he took no further action.

R.W. next spoke to Special Investigator Jeffrey Equils and wrote a formal statement expressing his concerns. Equils met with Kopp, who reported that she and petitioner met at the MCCI while she was in a relationship with R.W. Kopp also stated that she and petitioner were married and he lived with her.3 Equils then verified that R.W. was listed on the recorded deed and mortgage as an owner of the Freehold residence.

On January 26, 2011, petitioner contacted Officer Jeremy Berenger to ask him if he knew R.W. Berenger acknowledged that he knew R.W., who worked in the area of the MCCI Berenger handled. According to Berenger, petitioner stated he was "having issues with [R.W.] and his wife," but did not want to get into any more details on the phone. Berenger told petitioner that he did not want to get involved and ended the conversation. As he and petitioner were not personal friends, Berenger found the communication unusual. After learning of this conversation, Equils feared that petitioner was attempting to convince R.W. not to cooperate in the investigation. Equils immediately apprised the administration of the situation, and the administration decided to suspend petitioner.

On February 4, 2011, Equils served petitioner with a notice of suspension and a preliminary notice of discipline, which proposed removal. The charges against petitioner included conduct unbecoming an employee, neglect of duty, and other sufficient cause, all in violation of N.J.A.C. 4A:2-2.3(a). The notice also listed violations of MCSO Department of Corrections Rules and Regulations, namely, converting the property of an inmate; "behavior which threatens the good order and discipline" of the MCCI and "all conduct of a nature to bring discredit upon the department" (the catch-all provision); "undue familiarity" with an inmate's family (fraternization policy); and failure to report a change in address.

Petitioner appealed the disciplinary action and the Commission referred the matter to the Office of Administrative Law (OAL). An administrative law judge (the ALJ) heard the case on three non-consecutive days. On June 21, 2012, the ALJ issued his initial decision upholding the removal.

In his decision, the ALJ made detailed credibility findings. In particular, the judge found both R.W. and Kopp to be credible. He determined petitioner's testimony was self-serving and unbelievable. The judge highlighted petitioner's failure to notify the administration of his change of address or to tell anyone at the facility about his marriage as powerfully demonstrating an obvious consciousness of wrongdoing.

After painstakingly reviewing all the evidence, the ALJ found that petitioner

violated the purpose and intent of the fraternization policy by initiating a romantic relationship with either a fiancée, or at minimum, a long-term girlfriend, of a current inmate, even though a literal reading of institutional policy [] only bars undue fraternization to members of an inmate's family . . . . However, the fact that [Kopp] was a periodic documented visitor at the [MCCI] placed sufficient notice upon [petitioner] to exercise extreme caution in the matter in which he interfaced with her. Thus, . . . his actions in talking with and engaging her at the prison at the visitors center, getting her phone number there, subsequently dating her, moving into her home, and thereafter marrying her demonstrated an extremely poor sense of judgment and a lack of sensitivity to the security concerns of the [MCCI], all of which [fell] squarely within the violation of the policy enunciated [in the catch-all provision], even apart from the defined prohibitions of the fraternization policy . . . , in as much as that behavior threatened the good order and discipline of the [MCCI].

The ALJ acknowledged petitioner's contentions that Kopp claimed to be the owner of the residence, she had shown petitioner a quitclaim deed divesting R.W. of any ownership, and petitioner saw no signs of another man in the house. The ALJ determined that petitioner did not sufficiently investigate the ownership of the Freehold residence based on the numerous indicators that R.W. had an interest in the property and the circumstances under which petitioner met Kopp. The ALJ also specifically found incredible that petitioner did not see any signs of R.W.'s possessions or mail during the five months that he lived with Kopp.

The ALJ rejected petitioner's argument that because he was not served with a written notice of an internal affairs investigation, he could not be found to have tampered with an investigation he did not know about. The ALJ found that petitioner used "secretive efforts to check on the status of R.W. at the [MCCI] . . . after he started to suspect that he was in trouble as Bollaro" had already questioned him about Kopp. Thus, the ALJ found that petitioner "knew or should have known that he was the subject of some inquiry." The ALJ termed petitioner's actions as "his effort to meddle with or use the office of another officer," which "was inappropriate and potentially compromised Berenger himself in the institutional community."

Consequently, the ALJ concluded that petitioner had engaged in conduct unbecoming a public employee and thereby put the security of the facility at risk by his conduct. The ALJ also found that petitioner's lack of investigation into the ownership of Kopp's residence, failure to update his address, and his contact with Berenger regarding R.W. after his relationship with Kopp had come to the attention of the administration, were infractions also warranting disciplinary action. The judge found there was insufficient proof of the charge that petitioner left his post in order to strike up a conversation with Kopp on the day that he met her.

On August 15, 2012, the Commission adopted the ALJ's factual findings and decision, and issued its final administrative determination affirming the removal.

This appeal followed.

II.

We begin with a review of the well-established principles that guide our analysis. "The scope of appellate review of a final agency decision is limited[.]" In re Carter, 191 N.J. 474, 482 (2007) (citing Aqua Beach Condo. Ass'n v. Dep't of Cmty. Affairs, 186 N.J. 5, 15-16 (2006)); see also In re Stallworth, 208 N.J. 182, 194 (2011). "[A]dministrative agencies have broad discretion to adjudicate disputes." Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992). An agency decision should not be overturned unless there is "'a showing that it was arbitrary, capricious or unreasonable, or that it lacked fair support in the evidence[.]'" In re Carter, supra, 191 N.J. at 482. (quoting Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963)).

The role of an appellate court

is generally restricted to three inquiries: (1) whether the agency's action violates express or implied legislative policies, that is, did the agency follow the law; (2) whether the record contains substantial evidence to support the findings on which the agency based its action; and (3) whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors.

[Mazza v. Bd. of Trs. Police & Firemen's Ret. Sys., 143 N.J. 22, 25 (1995) (citing Campbell, supra, 39 N.J. at 562).]

Additionally, when reviewing agency action, "[a]ppellate courts must defer to an agency's expertise and superior knowledge of a particular field." Greenwood, supra, 127 N.J. at 513. An appellate court owes no deference to an agency's interpretation of a strictly legal issue, but "if substantial evidence supports the agency's decision, 'a court may not substitute its own judgment for the agency's even though the court might have reached a different result[.]'" In re Carter, supra, 191 N.J. at 483 (quoting Greenwood, supra, 127 N.J. at 513). However, we may not simply rubber-stamp an agency's decision. In re Taylor, 158 N.J. 644, 657 (1999).

On appeal, petitioner argues that the Commission's decision was arbitrary and capricious and must be reversed. Specifically, petitioner contends that the ALJ made credibility and factual findings that were "drastically skewed," ignored substantial exculpatory evidence and procedural irregularities in the investigation, based his legal conclusions on erroneous interpretations of the law and regulations, unconstitutionally infringed on petitioner's right to marry, and arbitrarily penalized petitioner contrary to the progressive discipline system.

The ALJ issued a comprehensive fifty-seven page opinion that thoroughly reviewed the testimony of each witness, weighed the evidence, detailed his credibility determinations, and concluded that petitioner had engaged in conduct unbecoming a public employee and violated several agency rules and regulations. We defer to these findings and conclusions of the ALJ as they were based on sufficient, credible evidence, and were not arbitrary, capricious, or unreasonable. See In re Carter, supra, 191 N.J. at 482-83; Greenwood, supra, 127 N.J. at 513; Mazza, supra, 143 N.J. at 25.

Moreover, the ALJ's credibility determinations were based on his ability to view the witnesses on the stand, an exercise in which we cannot engage. See State v. Rockford, 213 N.J. 424, 440 (2013). The Commission issued a nine-page decision cogently analyzing the ALJ's fact-finding and conclusion before upholding the removal. We see no reason on the record before us to disrupt the Commission's final agency action.

III.

Petitioner argues that the ALJ and the Commission "re-wrote" the MCSO's undue familiarity regulation and construed it contrary to its plain language because it "only prohibit[s] fraternization with the 'family' of an inmate" and not a "friend" or "ex-girlfriend." We disagree.

The undue familiarity policy, Section 3.25.40 of the MCSO Rules and Regulations, provides:

Members of the department shall not indulge in any undue familiarity with inmates nor shall they permit undue familiarity on the part of the inmates toward themselves. Members of the department other than those required to do so in the performance of their regular duties shall not make or maintain contact with or in any way associate with former inmates, nor shall they make or maintain contact with or in any way associate with a member of an inmate's family, except with the approval of the Warden.

The catch-all provision, Section 3.20.260 of the MCSO Rules and Regulations, provides:

Though not specifically mentioned in these rules and regulations all behavior which threatens the good order and discipline and all conduct of a nature to bring discredit upon the department shall be acted upon by the department according to the nature and degree of the offense and punished at the discretion of the Warden and/or Sheriff.

"Maintaining discipline within law enforcement agencies is important for the safety and security of the public." Henry v. Rahway State Prison, 81 N.J. 571, 579 (1980). "The need for proper control over the conduct of inmates in a correctional facility and the part played by proper relationships between those who are required to maintain order and enforce discipline and the inmates cannot be doubted." Bowden v. Bayside State Prison (Dep't of Corr.), 268 N.J. Super. 301, 305-06 (App. Div. 1993), certif. denied, 135 N.J. 469 (1994). "[S]uch facilities, if not properly operated, have a capacity to become 'tinderboxes.'" Ibid.

Generally, an agency's interpretation and application of its own regulation is given great deference. See US Bank, N.A. v. Hough, 210 N.J. 187, 191 (2012). However, appellate courts are not bound by an agency's legal opinions. Rumana v. Cnty. of Passaic, 397 N.J. Super. 157, 177 (App. Div. 2007).

In concluding that the undue familiarity regulation applied, the Commission stated that

under these particular facts, namely that Kopp and R.W. had resided together for a number of years, were raising children together and had bought a house together, . . . she would be considered a "family member." In this regard, undue familiarity policies are in place to protect the integrity and safety of the correctional facilities.

The Commission added that the purpose of the policy banning undue familiarity with inmates and their families is to ensure "the integrity and safety of the facility."

We agree with the Commission that in the context of the security concerns in a prison, the longstanding marriage-like relationship between R.W. and Kopp was a family relationship covered by the constraints and prohibition of the undue familiarity policy. As the ALJ pointed out, petitioner's silence at work about the relationship and his living arrangement demonstrated that he knew that the relationship was prohibited by the undue familiarity policy or otherwise inappropriate conduct. See Bowden, supra, 268 N.J. Super. at 306 (noting that violation of undue familiarity rules was "conduct which the system cannot safely tolerate"). Moreover, as a fourteen-year correction officer, petitioner should have understood that, at a minimum, his behavior violated the catchall policy as it "threatened the good order and discipline" of the department. Accordingly, we agree with the MCCI's reasonable interpretation and common-sense application of its own rules. See Bowden, supra, 268 N.J. Super. at 305-06 (finding Merit Review Board owes deference in appraisals of prison discipline as they "are matters peculiarly within the expertise of the corrections officials[,]" and "the situation with respect to correction facilities . . . are sui generis").

We also find unpersuasive petitioner's argument that the Commission's decision unconstitutionally infringes upon his fundamental right to marry. The record shows that petitioner was not disciplined for marrying Kopp, but for events set in motion months before their marriage, when he met her while she was visiting an inmate, dated her despite her close and lengthy relationship with an inmate, lived with her in an inmate's residence, and hid their relationship from his employer.

Moreover, a person's right to marriage, deemed "fundamental by both our Federal and State Constitutions," Lewis v. Harris, 188 N.J. 415, 435 (2006) (citing Zablocki v. Redhail, 434 U.S. 374, 383-84, 98 S. Ct. 673, 679-80, 54 L. Ed. 2d 618, 628-29 (1978)), is nonetheless "'subject to reasonable state regulation.'" Ibid. (quoting Greenberg v. Kimmelman, 99 N.J. 552, 572 (1985)). Additionally, the right to a particular job is not considered fundamental, and restriction of employment in a certain job based on marriage is subject to rational basis scrutiny. Greenberg, supra, 99 N.J. at 573-74, 576 (upholding the restriction on spouses of the judiciary working in casinos because "[t]he state interest in preserving the integrity of the judiciary outweigh[ed] [a spouse's] interest in unrestricted employment opportunities"). Similarly, here the MCCI's interest in protecting the security of the inmates, employees, and visitors outweighs petitioner's interest in beginning a relationship with an inmate's visitor, which might result in the possibility of wanting to marry the individual.

Petitioner further contends that disciplinary charges of "conduct unbecoming a public employee," N.J.A.C. 4A:2-2.3(a)(6), and "other sufficient cause," N.J.A.C. 4A:2-2.3(a)(12), are unconstitutionally vague and overbroad as applied to him. We disagree.

"A statute or regulation is facially unconstitutional for vagueness if it 'either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application.'" Karins v. City of Atl. City, 152 N.J. 532, 541 (1998) (quoting Connally v. Gen. Const. Co., 269 U.S. 385, 391, 46 S. Ct. 126, 127, 70 L. Ed. 322, 328 (1926)). "The existence of a 'catchall' provision in a disciplinary regulation does not automatically render the regulation void on vagueness grounds." Id. at 542. The phrase "conduct unbecoming" "'is an elastic one,' that '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)). Here, the "conduct unbecoming" and "other sufficient cause" provisions in N.J.A.C. 4A:2-2.3(a) are not vague or overbroad. Law enforcement officers, including correction officers, are subject to a higher standard of conduct, In re Carter, supra, 191 N.J. at 486, and "a finding of misconduct need not 'be predicated upon the violation of any particular rule or regulation[.]'" Karins, supra, 152 N.J. at 555 (quoting Hartmann v. Police Dep't of Ridgewood, 258 N.J. Super. 32, 40 (App. Div. 1992)). Such a determination can "'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.'" Ibid. (quoting Hartmann, supra, 258 N.J. Super. at 40). As a correction officer, petitioner was charged with the knowledge of the need for security and integrity at the facility; his conduct was contrary to that charge and meets the clear standard of both conduct unbecoming and the catchall provision. See In re Young, 202 N.J. 50, 66 (2010).

Finally, we reject petitioner's contention that his termination was arbitrarily harsh because it was not based on the system of progressive discipline. The deferential standard of review owed to administrative agencies applies in the review of disciplinary sanctions imposed by those agencies. In re Herrmann, 192 N.J. 19, 28 (2007). "A reviewing court should alter a sanction imposed by an administrative agency only 'when necessary to bring the agency's action into conformity with its delegated authority.'" Ibid. (quoting In re Polk, 90 N.J. 550, 578 (1982)). In 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, supra, 90 N.J. at 578).

The concept of progressive discipline is not "a fixed and immutable rule to be followed without question." In re Carter, supra, 191 N.J. at 484. "[S]ome disciplinary infractions are so serious that removal is appropriate notwithstanding a largely unblemished prior record." Ibid. In particular, "[i]n matters involving discipline of police and corrections officers, public safety concerns may also bear upon the propriety of the dismissal sanction." Id. at 485.

Here, petitioner concealed an inappropriate relationship, lived in a residence partially owned by an inmate, and when caught, he attempted to contact the inmate. In these circumstances, the penalty of removal is not disproportionate to the offense, nor is it shocking to our conscience.

1 Kopp visited R.W. six times between March and July 2010, each time signing in as a "friend." Petitioner was on duty as a visiting officer each time Kopp visited R.W., but testified that he only remembered her visiting once.

2 Kopp and R.W. had bought a house together in 2007, where they lived with Kopp's two children, who considered him their step-father.

3 Petitioner and Kopp separated sometime in January 2011. According to petitioner, Kopp was irate and angry when he did not wish to reconcile with her and threatened things such as "this isn't over and I'll do whatever I can to get back at you" on several occasions, including an incident witnessed by petitioner's ex-wife. Kopp also admitted that she felt considerable "animosity" towards petitioner.