PHH MORTGAGE CORPORATION VS. ERIC MOORE(F-001008-13, ESSEX COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4150-14T4
IN THE MATTER OF DURAND GILYARD,
GARDEN STATE YOUTH CORRECTIONAL
FACILITY, DEPARTMENT OF CORRECTIONS.
___________________________________
Telephonically argued January 18, 2017 -
Decided March 10, 2017
Before Judges Lihotz, Hoffman and O'Connor.
On appeal from the Civil Service Commission,
Docket No. 2015-2515.
Patricia B. Quelch argued the cause for
appellant Durand Gilyard (Helmer, Conley &
Kasselman, P.A., attorneys; Ms. Quelch, of
counsel and on the brief).
Anthony DiLello, Deputy Attorney General,
argued the cause for respondent Department of
Corrections (Christopher S. Porrino, Attorney
General, attorney; Melissa H. Raksa, Assistant
Attorney General, of counsel; Mr. DiLello, on
the brief).
PER CURIAM
Appellant Durand Gilyard, a former corrections officer
assigned to the Garden State Youth Correctional Facility (Garden
State), appeals from the final decision issued by the Civil Service
Commission (Commission), upholding his termination from employment
based upon conduct unbecoming of a public employee and commission
of other prohibited acts. The Commission adopted the findings and
conclusions issued by an administrative law judge (ALJ) following
an evidentiary hearing. On appeal, appellant maintains the
Commission's determination was arbitrary and capricious because
his actions fell within his assigned duties and any procedural
lapses in performance did not warrant termination. We are not
persuaded and affirm.
The facts recited are found in the administrative hearing
record and are undisputed. Appellant worked as the housing officer
in Garden State's therapeutic community unit, which houses inmates
needing counseling for drug and alcohol addiction. Appellant
worked the second shift, from 2 p.m. to 10 p.m.
Shortly after 8:30 p.m. on November 6, 2013, he commenced
searching cells for contraband. Appellant directed his effort to
verifying the ownership of televisions and radios located in each
cell. He was concerned there were continuing problems with some
inmates extorting items from others. He testified: "So I go check
the back of the TVs and look for a name at first. If this name
doesn't match the inmate in the room, then I'll ask them for
paperwork." The first several inmates failed to produce the
documents verifying ownership of the electronics. As a result,
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appellant confiscated those televisions and every other television
and radio in the unit. Because his initial inspections could not
verify ownership, he assumed there was a systemic problem and
confiscated fifty televisions and fifteen radios. Appellant
placed the confiscated electronics in an adjacent housing unit's
storage closet because his unit's storage closets were full.
Although appellant made a list of items removed from each
cell, he did not "have time" to complete the paperwork required
by the Department of Corrections (DOC) regulations addressing
seizure of contraband. Appellant admitted he did not follow the
correctional facility's policy, stating:
So at that time to write that many forms at
that late at night, I knew it was going to
take me over the ten o'clock limit. There's
no way I could a [sic] write confiscation
sheets for 65 items. It would have took [sic]
me another hour or two to do that. I felt at
that time it wasn't an emergent situation only
because I didn't have any problem with the
inmates or they didn't give me a disturbance
[sic].
Appellant knew the requisite procedures set forth in the
confiscation regulations included the requirement to charge each
offending inmate with improperly possessing the television or
radio and to give each a receipt for the confiscated item. When
he asked inmates if they wanted paperwork, according to appellant,
the inmates said no. He admitted:
3 A-4150-14T4
The only reason why I didn't 'cause I had not
determined that every item, or whose item did
belong to who, who would rightfully theirs,
who's wasn't [sic]. I was kind of in the
middle of my investigation. And I didn't want
to write [c]onfiscation sheets or [c]harges
at that time without willingly knowing whose
items rightfully did belong to theirs [sic].
So I figured, as far as myself[,] a judgment
call[,] I'll wait till tomorrow. They're
secured in the closets. Get to the bottom of
it the next day.
Two officers working the next morning testified there was no
unusual behavior by the inmates as they moved from their cells to
the gym for counseling. However, Ira Crespi and his supervisor,
Jennifer Penninpede-Fiore, who facilitated substance and
behavioral counseling programs for Garden State, also testified.
Each testified as to events witnessed during the inmates' group
session, the morning after appellant's confiscations. Ninety-six
inmates were present for counseling with Crespi and another fifty-
two were in the same gym attending a different session. Crespi
explained it as "a day that I'd never experienced before," when
"the inmates were disorderly, agitated, irritated, angry." The
inmates ignored his customary instruction to sit down, and he
heard various inmates discussing the events of the previous night.
They were unsettled because their televisions and radios were
confiscated. Some inmates stated, "We're going to protest this."
4 A-4150-14T4
Crespi testified, "I really thought something bad might have
happened" because the inmates were "pretty upset, very upset and
I feared for my safety." Crespi contacted Penninpede-Fiore for
help. When she arrived, accompanied by Sergeant Craig James, who
requested assistance from Lieutenant Brian Hodgson, Penninpede-
Fiore observed "the inmates were not designated to their area.
They were all over. They were all standing. It was loud. It was
chaotic." Penninpede-Fiore and Sergeant James walked to the
different groups of inmates and asked them to sit down. She
believed they complied because of Sergeant James' presence.
When appellant returned to work on November 7, 2013, his
supervisor informed him an investigation of his actions was
underway. Sergeant James undertook this investigation of the
inmate's claims and found the fifty televisions and fifteen radios
in the adjacent unit's storage area. He returned forty-three
televisions and twelve radios, which were improperly seized from
inmates who rightfully owned them.
Lieutenant John Henderson, one of the second shift area
supervisors, testified appellant's actions constituted an unusual
event requiring his supervisor's approval. He confirmed the mass
confiscation was not authorized by appellant's supervisor, was not
recorded on an incident report as required, was not listed in the
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requisite log books, and was not mentioned to his supervisor or
officers resuming duty on the next shift.
On December 19, 2013, Garden State issued a Preliminary Notice
of Disciplinary Action to appellant. The notice listed these
events as warranting discipline:
On November 7, 2013[,] it was discovered that
on November 6, 2013[,] you confiscated
approximately fifty inmate televisions and
fifteen radios without notifying your area
supervisor, without completing the required
paperwork, and with no written account of your
actions. You then stored the confiscated
items in a storage closet on the adjoining
housing unit. This was done during the time
that a code 33 was in effect. This action
caused a disturbance during the TC counseling
program on November 7, 2013[, which] may have
caused injury to staff and destruction of
state property.
Appellant was suspended pending a Loudermill1 hearing for
conduct unbecoming a public employee, N.J.A.C. 4A:2-2.3(a)(6), and
other sufficient causes, N.J.A.C. 4A:2-2.3(a)(12), which included
noncompliance with N.J.A.C. 10A:3-6.1, regulations delineating
procedures for handling contraband.2 Further, the notice advised
1
Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 105 S.
Ct. 1487, 84 L. Ed. 2d 494 (1985) (holding due process requires a
pretermination hearing to address charges affecting certain civil
servants' property interests in employment).
2
The notice also identified specific violations of the DOC
Human Resources Bulletin 84-17 (Bulletin 84-17), including: a
serious mistake due to carelessness that may result in danger or
6 A-4150-14T4
Garden State sought to terminate appellant's employment. The
preliminary hearing was conducted, even though appellant was
absent. Garden State suspended appellant without pay and served
a Final Notice of Major Disciplinary Action to remove appellant
from his employment. Following that hearing, appellant's
employment was terminated.
Appellant appealed, and the matter was assigned to the Office
of Administrative Law for evidentiary review as a contested case.
Appellant and Garden State each presented witness testimony, along
with documentary evidence. Following a four-day hearing, the ALJ
issued a recommendation, concluding appellant committed all
charges, and upheld his termination. The Commission adopted the
ALJ's findings and accepted his conclusions as its final decision.
This appeal followed.
A "strong presumption of reasonableness attaches to the
actions of administrative agencies." In re Carroll, 339 N.J.
Super. 429, 437 (App. Div.) (citation omitted), certif. denied,
170 N.J. 85 (2001). Although we undertake an independent review,
[o]ur role in reviewing a final administrative
agency decision is limited. In re Taylor, 158
N.J. 644, 656 (1999). We must defer to a
injury to persons or property (§ B.8); conduct unbecoming an
employee (§ C.11); violation of administrative procedures or
regulations involving safety and security (§ D.7); and violation
of a rule, regulation, policy, procedure, or administrative
decision (§ E.1).
7 A-4150-14T4
final agency decision unless it is arbitrary,
capricious, unsupported by substantial
credible evidence in the record, or in
violation of the express or implicit
legislative policy. Id. at 656-57. We must
determine whether an agency's findings could
have been "'reached on sufficient credible
evidence present in the record' considering
'the proofs as a whole,' with due regard to
the opportunity of the one who heard the
witnesses to judge of their credibility." Id.
at 656 (quoting Close v. Kordulak Bros., 44
N.J. 589, 599 (1965)). If we find sufficient
credible evidence in the record to support the
agency's conclusions, then we must affirm even
if we would have reached a different result.
Clowes v. Terminix Int'l, Inc., 109 N.J. 575,
588 (1988).
[In re Frazier, 435 N.J. Super. 1, 6 (App.
Div. 2014).]
A party challenging the administrative action bears the
burden to establish the agency did not follow the law; its decision
was arbitrary, capricious, or unreasonable; or its decision was
unsupported by substantial credible evidence in the record. In
re Virtua-West Jersey Hosp. Voorhees, 194 N.J. 413, 422 (2008);
see also Twp. Pharmacy v. Div. of Med. Assistance and Health
Servs., 432 N.J. Super. 273, 283-84 (App. Div. 2013). If the
record meets this standard, this court will set aside an agency
decision, which is clearly mistaken or erroneous. L.M. v. Div.
of Med. Assistance & Health Servs., 140 N.J. 480, 490 (1995).
8 A-4150-14T4
However, an agency's interpretation of a statute or any legal
determination is not accorded the same deference. Legal issues
are reviewed de novo.
Appellant challenged the factual findings adopted by the
Commission, arguing the proofs did not support the conclusion his
conduct constituted the acts charged. Admitting he seized the
inmates' electronics, he nevertheless refutes any notion his
actions were deliberate or inappropriate or his decision regarding
the seized items' storage left them open to theft. Finally, he
challenges Crespi's comments as an overreaction and argues the
resultant disquiet of the inmates during their morning counseling
was not akin to a riot.
Public employee rights and duties are governed by the Civil
Service Act, N.J.S.A. 11A:1-1 to -12.6. A public employee
protected by the provisions of that Act may be subject to major
discipline for a wide variety of offenses connected to his or her
employment and the general causes for such discipline are set
forth in N.J.A.C. 4A:2-2.3(a), which provides, in pertinent part:
(a) An employee may be subject to
discipline for:
. . . .
6. Conduct unbecoming a public employee;
. . . .
9 A-4150-14T4
12. Other sufficient cause.
"Conduct unbecoming a public employee," N.J.A.C. 4A:2-
2.3(a)(6), is an "elastic" phrase encompassing "any conduct which
adversely affects . . . morale or efficiency [or] which has a
tendency to destroy public respect for [public] employees and
confidence in the operation of [public] services." Karins v. City
of Atl. City, 152 N.J. 532, 554 (1998) (citations omitted).
Conduct that "has the tendency to destroy public respect for
[public] employees and public confidence in the operation of" the
public entity is intolerable. Id. at 557.
Appellant's status as a corrections officer subjects him to
a higher standard of conduct than ordinary public employees. In
re Phillips, 117 N.J. 567, 576-77 (1990). This results because
corrections officers represent "law and order to the citizenry and
must present an image of personal integrity and dependability in
order to have the respect of the public." Twp. of Moorestown v.
Armstrong, 89 N.J. Super. 560, 566 (App. Div. 1965), certif.
denied, 47 N.J. 80 (1966).
Appellant has also been charged with violating N.J.A.C. 4A:2-
2.3(a)(12), "Other sufficient cause." Although general, this
provision applies to conduct that violates the implicit standard
of good behavior that devolves upon one who stands in the public
eye as an upholder of that which is morally and legally correct.
10 A-4150-14T4
As noted above, Garden State cited four provisions of Bulletin 84-
17 as constituting the basis for this charge.
DOC regulations govern the procedure followed when a
corrections officer seizes contraband. These include: the officer
must give the inmate a receipt for the seized item, N.J.A.C. 10A:3-
6.1(a)(3); before the officer's shift ends, the officer must give
the contraband to his supervising officer along with a record of
its chain of possession, N.J.A.C. 10A:3-6.1(a)(1) to (2); and the
supervising officer must store the contraband with the Special
Investigations Division or the correctional facility's Central
Control, N.J.A.C. 10A:3-6.1(c).
The record supports appellant's failure to comply with the
designated process. We reject, as specious, his claim taking the
televisions and radios was "a valid exercise of discretion" and
not a seizure of contraband. R. 2:11-3(e)(1)(E).
Appellant suggests his investigation was not completed
because his shift ended, he had not cited any inmate, and fully
intended to inform his supervisor when he concluded his review.
Further, he did not believe it necessary to make any record in the
log books prior to completing the investigation. Ironically,
appellant asserts an inmate's possession of electronics is
permitted but "protocol must be followed," while suggesting his
decisions were acceptable practice even if "his actions may not
11 A-4150-14T4
have comported with the official procedures or protocols . . . ."
Appellant also justifies his actions, noting no disruption
occurred that evening. We reject each of his suggestions.
The facts adopted by the Commission were as follows:
[A]ppellant's action was a serious mistake as
the improper confiscation of so many items
created a hostile environment[,] which led to
a mass inmate protest. . . . [T]hat
appellant's conduct was unbecoming to a public
employee since that conduct amounted to
inappropriately taking personal property from
the inmates and putting that property in and
unsecured location subject to theft. . . .
[A]ppellant violated the facility procedures
and in doing so created a situation where
safety of inmates, corrections personnel and
civilians was put at risk because of the mass
confiscation of electronics initiated by
. . . appellant created a hostile environment
and large inmate unrest.
Appellant's actions of appropriating all televisions and
radios of every inmate in his unit, without determining if they
were contraband, is neither authorized nor permitted. Strict
compliance with the process and procedures created to address this
issue is required to protect the safety and security of the
institution, as well as to protect inmates' property rights.
Importantly, appellant did not advise supervisors or other shift
officers of his actions, denying them the opportunity to prepare
for resultant unrest.
12 A-4150-14T4
Appellant's challenge to the factual findings because the
record contains no proof the taken electronics were unsecured begs
the question. The inmate property was taken and placed outside
the unit, without compliance with policies or procedures required
by the facility. We also reject appellant's reliance on testimony
offered by other corrections officers, which minimized the event
and appellant's actions. As Lieutenant Henderson explained, the
therapeutic counseling unit inmates are more volatile than those
in other units because of the circumstances they face. Further,
the agitated and angry group counseling session could have
escalated into a riot had the morning personnel not acted as
"phenomenally" as they had.
Maintenance of strict discipline is important in military-
like settings such as prisons and correctional facilities. Rivell
v. Civil Serv. Comm'n, 115 N.J. Super. 64, 72 (App. Div.), certif.
denied, 59 N.J. 269 (1971). Thus, strict adherence to procedures
developed and published by the DOC is necessary to maintain
control. This court has underscored:
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. We can take judicial notice that
such facilities, if not properly operated,
have a capacity to become "tinderboxes."
13 A-4150-14T4
[Bowden v. Bayside State Prison, 268 N.J.
Super. 301, 305-06 (App. Div. 1993), certif.
denied, 135 N.J. 469 (1994).]
We conclude appellant's factual challenges lack merit. R.
2:3-11(e)(1)(E). His actions were not justified or acceptable,
but rather adversely affected the morale and efficiency of the
correctional facility and had the "tendency to destroy public
respect for [public] employees and public confidence in the
operation of" the correctional facility. Karins, supra, 152 N.J.
at 557. The Commission's findings that appellant's conduct
violated N.J.A.C. 4A:2-2.3 (a)(6) and (12), along with the policies
adopted in Bulletin 87-17, are amply supported by the record
evidence.
Next, appellant argues the Commission erred because his
termination was not warranted by the disciplinary infractions. We
disagree.
"A reviewing court 'may not substitute its own judgment for
the agency's, even though the court might have reached a different
result.'" In re Stallworth, 208 N.J. 182, 194 (2011) (quoting In
re Carter, 191 N.J. 474, 483 (2007) (citations omitted)). This
court has no authority to act independently, particularly
regarding an issue directed to the agency's special "expertise and
superior knowledge of a particular field." In re Herrmann, 192
N.J. 19, 28 (2007). This deferential standard applies to our
14 A-4150-14T4
review of a challenge to an issued disciplinary sanction. Ibid.
"Accordingly, when reviewing administrative sanctions, appellate
courts should consider whether the 'punishment is so
disproportionate to the offense, in the light of all of the
circumstances, as to be shocking to one's sense of fairness.'"
Stallworth, supra, 208 N.J. at 195 (quoting Carter, supra, 191
N.J. at 484).
Appellant's argument suggests he was "just doing his job,"
and the infraction he committed was merely not completing
paperwork. He also points to the limited disciplinary sanction
issued to his co-employee who assisted him in the confiscation and
storage of the electronics. These contentions completely ignore
the facts.
No emergency resulted because some inmates possibly possessed
a television or radio that was not documented as his own. While
such an instance required the inmate to be cited for possession
of contraband, no danger was posed by allowing possession to
continue, pending appellant's strict compliance with requisite
procedures. In contrast, the mass seizure of all electronics
without regard to rightful proof of possession, on the hunch some
of the items may qualify as contraband, is neither warranted nor
sanctioned. The resultant unrest and protest, when inmates
gathered and discussed appellant's misguided attempt to enforce
15 A-4150-14T4
television and radio protocol, posed a significant security and
safety risk, which could have been catastrophic.
Appellant's argument that the sanction of termination
deviated from the expectations of progressive discipline is also
rejected. A single egregious act may justify termination. See
Stallworth, supra, 208 N.J. at 196. "[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." In
re Herrmann, supra, 192 N.J. at 33.
In its review, the Commission's adopted factual findings
noted appellant's prior record, which included a 2009 disciplinary
sanction and 120-day suspension when he failed to secure cell
doors, allowing one inmate to enter another's cell and commit an
assault. However, that offense was not weighed in meting
appellant's sanction because the present offenses were determined
sufficiently egregious to warrant termination. The Commission
reviewed the current infractions, considered appellant's work
record, and chose not to modify the recommended penalty of
termination.
This court exercises a limited role in reviewing Commission
sanction decisions. Stallworth, supra, 208 N.J. at 194. This
court may reverse the agency's decision only if it was "arbitrary,
16 A-4150-14T4
capricious, or unreasonable, or . . . not supported by substantial
credible evidence in the record as a whole." Ibid. (quoting Henry
v. Rahway State Prison, 81 N.J. 571, 579-80 (1980)). In
particular, this court may not substitute its judgment for that
of the Commission in determining whether a particular sanction is
warranted. Id. at 194-95. This court may intervene only if the
punishment "is so disproportionate to the offense, in the light
of all of the circumstances, as to be shocking to one's sense of
fairness." Id. at 195 (quoting In re Carter, supra, 191 N.J. at
484). We conclude it does not.
In light of this authority, the sanction is neither illegal
nor unreasonable. We discern no basis to interfere with the
propriety of the issued sanction.
Affirmed.
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