In the Matter of Kodi Pollock, Etc. ( 2024 )

NOT FOR PUBLICATION WITHOUT THE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-4042-21
IN THE MATTER OF KODI
POLLOCK, SOUTH WOODS
STATE PRISON, DEPARTMENT
OF CORRECTIONS.
____________________________
Submitted January 16, 2024 – Decided January 31, 2024
Before Judges Marczyk and Vinci.
On appeal from the New Jersey Civil Service
Commission, Docket No. 2022-909.
Jacobs and Barbone, PA, attorneys for appellant Kodi
Pollock (Louis Michael Barbone, on the brief).
Matthew J. Platkin, Attorney General, attorney for
respondent New Jersey Department of Corrections,
South Woods State Prison (Donna Sue Arons, Assistant
Attorney General, of counsel; Kevin K.O. Sangster,
Deputy Attorney General, on the brief).
Matthew J. Platkin, Attorney General, attorney for
respondent New Jersey Civil Service Commission
(Levi Malcom Klinger-Christiansen, Deputy Attorney
General, on the statement in lieu of brief).
PER CURIAM
Petitioner Kodi Pollock appeals from the July 20, 2022 final
administrative action of the Civil Service Commission which upheld her
removal from the position of senior corrections police officer with the New
Jersey Department of Corrections ("DOC"). Having considered the record and
applicable legal standards, we affirm.
We discern the following facts from the record. In 2016, Pollock was
hired by the DOC and assigned to South Woods State Prison in housing units
H1-2L and H1-2R. Elijah Blanton is a former inmate who was assigned to
housing unit H1-2R where he served as "head runner" until his release on August
29, 2020.1 Pollock was Blanton's housing unit officer and supervised Blanton.
In March 2021, the Special Investigations Division ("SID") of the DOC
began an investigation after receiving information from two confidential
informants that Pollock passed messages from Blanton, with whom she
allegedly was engaged in an unduly familiar relationship, to Blanton's former
cellmate, who was a current inmate. Surveillance video confirmed Pollock met
with Blanton's former cellmate as reported by the confidential informants.
1
Based on the record, the "head runner" is an inmate assigned to work in the
housing unit cleaning and completing any other tasks assigned to the inmate by
corrections officers.
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2
Pursuant to communications information orders, the SID obtained call
detail records for mobile phone numbers associated with Pollock and Blanton ,
which revealed approximately 249 phone calls between the two. The calls began
as early as September 12, 2020, two weeks after Blanton was released from
South Woods and the first day Blanton's mobile number was active. Pollock
and Blanton spoke twice on September 12, 2020, for a total of one hour and
forty-two minutes. The SID obtained search warrants for the mobile phones and
seized the phones. Pursuant to communications data warrants, the SID extracted
approximately 10,180 text messages between Pollock and Blanton from the
phones.
On March 22, 2021, while Pollock was on duty as the housing unit officer,
the SID searched areas of housing unit H1-2R that were under Pollock's
supervision and discovered various contraband items. Her jacket contained food
items, vehicle keys, and other items from outside the facility. A locked cabinet
for which Pollock was responsible during her shift contained a small plastic bag
of the controlled dangerous substance ("CDS") Buprenorphine (Suboxone),
beard trimmers, and inmate-manufactured immersion heaters. Pollock assumed
control of the only keys to the locked cabinet at the beginning of her shift and
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was in possession of the keys at the time of the search. Two more immersion
heaters were discovered in the housing unit officer's podium bundled in a sock.
The text messages evidenced a personal and business relationship between
Pollock and Blanton. In a text exchange on September 22, 2020, they wrote:
[Blanton]: I think ou[r] chemistry is sublime girl[. I]
told [yo]u long ago [yo]u have my heart and I meant
that[.] I just want you to b[e] totally comfy with
me . . . [I] truly [honestly] think [you are] amazing
from head to toe and everything in between. And [I']m
not just talking about our business ventures [I] want [to]
keep [going] with every aspect of our relationship[.]
[H]ow about [you?]
[Pollock]: [O]h okay that[']s awesome. [A]nd heck yes
I want to continue with both and do everything. [Y]ou
know [I']m down with you.
The text messages included photographs taken by Pollock of her in various
states of undress along with graphic descriptions of sexual acts Pollock and
Blanton intended to perform on each other. Other text messages were sent by
Pollock while she was at work, evidencing her use of her mobile phone while
on duty. In one such exchange they wrote:
[Blanton]: I love u sooo much kodi rose send me a pic
[right now] pl[ea]s[e] and thank [yo]u[.]
[Pollock]: [A]t work eating Chinese [with photograph
Pollock took of herself in uniform eating.]
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[Blanton]: [G]et it. I f[*******] love it [you're] the
best[.] [L]ove [yo]u sweetness how do [yo]u still have
[yo]ur phone[?]
[Pollock]: I brought it in lmao[.]
In another text message exchange, Pollock disclosed to Blanton an
incident in which an officer was assaulted by an inmate while sitting at his desk
and wrote, "people are getting hurt because inmates are stupid and with this new
detention it[']s like better for inmates and they want to go." Blanton then
encouraged her to leave her job and Pollock responded, "that's why [I] wan[t to]
get a move on with this stuff we wan[t to] do."
The SID conducted a recorded interview of Pollock. A summary of the
interview is included in the SID's administrative investigation report. 2 Pollock
initially denied any relationship with any current or former inmate but told the
investigators she received a call unexpectedly from a former inmate who was
assigned to her housing unit and wanted a construction job with her father.
Pollock recalled the inmate was one of her main runners for at least one year
and was able to describe him but denied knowing his name. Pollock denied
giving the inmate her phone number and did not know how the inmate was aware
2
The parties did not include the recording in the appellate record. Instead, they
cite to the administrative investigation report.
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of her father's business. Pollock said she spoke with the inmate a couple of
times but did not believe they spoke more than ten times. Pollock maintained
she was only acting as a conduit between the inmate and her father.
After the investigators confronted Pollock with evidence of 249 phone
conversations between her and Blanton, Pollock recalled the inmate's nickname
was "E" but repeatedly continued to deny she knew his name. Pollock also
recalled discussing his children and that he lived somewhere in Trenton. Pollock
denied any romantic relationship with "E" and denied the two ever met. Pollock
did recall giving "E" her address but did not know why she did that and did not
remember if she ever asked him to meet her. Pollock continued to deny she
knew his name.
When questioned about the frequency of her text messaging with Blanton
Pollock was not able to estimate the number of times they communicated.
Pollock told the investigator's she stored his number under the name "Alene"
which she believed was his wife's name. After being confronted with evidence
of over 10,000 text messages between her and Blanton, Pollock admitted she
sent him photographs of her in her bra and underwear and recalled graphic
exchanges in which they discussed performing sexual acts on each other.
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Pollock, however, denied ever engaging in a sexual relationship with Blanton
and insisted she was merely flirting.
Pollock denied the contraband found in the locked cabinet was hers, but
admitted she concealed food items in the lining of her jacket to evade detection
when entering the prison. Pollock acknowledged she and Blanton were or
intended to engage in business ventures together including a bounce house
business for profit. She also acknowledged she provided Blanton with
information so Blanton could send her money to help pay her bills.
As the interview progressed, Pollock admitted she and Blanton "talked on
the phone a lot . . . maybe a couple of hours here and there . . . throughout the
day." Pollock admitted her initial statement that she and Blanton talked a couple
of times was false, and claimed she initially provided untruthful responses
because she was embarrassed. Pollock admitted she was not honest with the
investigators, particularly about her inability to recall Blanton's name. When
asked if her statement was accurate and truthful, Pollock responded, "[a]t first
no[,] but then yes." Pollock contended that she did not believe it was
inappropriate for her to have contact with Blanton because he completed his
maximum sentence and was a "free man."
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Pollock was previously suspended for thirty days for other sufficient
cause, N.J.A.C. 4A:2-2.3(a)(12), specifically, violation of administrative
procedures and/or regulations involving safety and security, Human Resources
Bulletin ("HRB") 84-17: D-7. That prior incident involved undue familiarity
with inmates when Pollock secreted "herself in the laundry room, with the door
closed and lights out, with two inmates . . . ." Pollock was aware of the DOC
policy on staff/inmate over familiarity from that incident as well as her training.
Pollock was served with a preliminary notice of disciplinary action
charging her with: conduct unbecoming a public employee, N.J.A.C. 4A:2-
2.3(a)(6); other sufficient cause, N.J.A.C. 4A:2-2.3(a)(12); selling or possession
of alcoholic beverages or CDS while on State property and/or on duty, HRB 84-
17: C-2; falsification: intentional misstatement of material fact in connection
with work, employment application, attendance, or in any record, report,
investigation or other proceeding, HRB 84-17: C-8; divulging confidential
information without proper authority, HRB 84-17: C-10; conduct unbecoming a
public employee, HRB 84-17: C-11; use possession or sale of any CDS
(custody), HRB 84-17: C-13; improper or unauthorized contact with inmate –
undue familiarity with inmates, parolees, their families, or friends, HRB 84-17:
D-4; violation of administrative procedures and/or regulations involving safety
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and security, HRB 84-17: D-7; and violation of a rule, regulation, policy,
procedure, order, or administrative action, HRB 84-17: E-1.
After Pollock waived her right to a departmental hearing, the DOC issued
a final notice of disciplinary action sustaining the charges and removing Pollock
from her position. Pollock filed an appeal with the Commission, and the matter
was transferred to the Office of Administrative Law. The DOC moved for
summary decision. In a comprehensive written opinion dated June 23, 2022, the
administrative law judge ("ALJ") granted the DOC's motion for summary
decision, ordered that all the charges against Pollock were sustained, and
affirmed the penalty of removal.
The ALJ found, based on Pollock's admissions during the SID interview
and the other evidence presented, the DOC proved by a preponderance of the
evidence Pollock engaged in conduct unbecoming a public employee, N.J.A.C.
4A:2-2.3(a)(6), and constituting other sufficient cause, N.J.A.C. 4A:2-
2.3(a)(12). Specifically, the ALJ found Pollock engaged in an unduly familiar
relationship with Blanton within one year of his release from custody,
intentionally made false statements in connection with the SID investigation,
possessed contraband in the prison, and divulged confidential information to
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Blanton. On July 20, 2022, the Commission issued its final administrative
action accepting and adopting the ALJ's findings.
On appeal, Pollock argues there were material facts in dispute and
summary decision in the DOC's favor was improperly granted. She argues she
did not knowingly violate the DOC's staff/inmate over familiarity policy
because she believed the policy applied only to former inmates on community
release or parole status or some other form of criminal justice jurisdiction, and
the ALJ effectively determined Pollock was not credible by granting summary
decision. Pollock also contends the ALJ erred by finding she was in possession
of the Suboxone found in the locked cabinet despite her claim she did not know
it was there. She urges us to exercise a de novo review of the record.
Pollock does not address any of the other violations, including that she
intentionally made false statements in connection with the SID investigation ,3
divulged confidential information to Blanton, and possessed contraband other
3
Pollock implies in her statement of facts she did not make false statements
during the investigation. A passing reference to an issue is not sufficient to
properly raise an issue on appeal. Miller v. Reis, 189 N.J. Super. 437, 441 (App.
Div. 1983) (holding issue not briefed beyond conclusory statements need not be
addressed). The contention is also without merit because Pollock admitted she
misrepresented material facts during the SID investigation.
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than the Suboxone in the prison. "An issue not briefed on appeal is deemed
waived." Sklodowsky v. Lushis, 417 N.J. Super. 648, 657 (App. Div. 2011).
Our review of a final agency decision is limited, and we "do not ordinarily
overturn such a decision 'in the absence of a showing that it was arbitrary,
capricious or unreasonable, or that it lacked fair support in the evidence.'" In re
Carter, 191 N.J. 474, 482 (2007) (citations omitted). Further, we may not
substitute our judgment for that of the agency's when "substantial credible
evidence supports [the] agency's conclusion . . . ." Greenwood v. State Police
Training Ctr., 127 N.J. 500, 513 (1992) (citations omitted). Instead, we "defer
to an agency's expertise and superior knowledge of a particular field." Ibid.A summary decision "may be rendered if the papers and discovery which
have been filed, together with the affidavits, if any, show that there is no genuine
issue as to any material fact challenged and that the moving party is entitled to
prevail as a matter of law." N.J.A.C. 1:1-12.5(b). This standard is similar to
the rule governing a motion for summary judgment. See R. 4:46-2(c).
"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. Atl.
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City, 152 N.J. 532, 554 (1998) (first alteration in original) (quoting In re Appeal
of Emmons, 63 N.J. 136, 140 (1960)). 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.
Pollock's status as a corrections police officer subjects her to a higher
standard of conduct than ordinary public employees. In re Phillips, 117 N.J.
567, 576-77 (1990). This is because corrections police 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." Carter, 191 N.J. at
485-86 (quoting Twp. of Moorestown v. Armstrong, 89 N.J. Super. 560, 566
(App. Div. 1965)).
It is undisputed Pollock engaged in an unduly familiar relationship with a
former inmate within weeks of his release, provided false information to the SID
investigators, possessed contraband in the prison, and provided sensitive
information regarding prison operations—all in violation of the applicable rules,
regulations, and procedures. These violations are plainly sufficient to support
the Commission's determination that Pollock engaged in conduct unbecoming a
public employee.
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Pollock's contention that the ALJ was required to conduct an evidentiary
hearing to determine whether she knowingly violated the DOC's staff/inmate
over familiarity policy is not persuasive. Pollock concedes she violated that
policy but asserts, without citation to any authority, a knowing violation is
qualitatively more serious than an unknowing violation. Even accepting that
contention as valid, the ALJ properly granted summary disposition. Po llock's
violation of the policy was properly considered in conjunction with the many
other serious violations at issue in this case and her prior disciplinary history.
Under the facts of this case, whether she violated the policy knowingly or
unknowingly was not material to the ultimate level of discipline imposed.
Pollock's claim that the ALJ improperly determined she violated the
policy prohibiting possession of CDS in the prison without a hearing is likewise
not convincing. Pollock was responsible for the locked cabinet where the
Suboxone was found and was in possession of the only keys to the cabinet at the
time of the search. Pollock's contention that she did not put it there is not
material. A CDS was discovered in an area under her control in violation of the
prohibition on contraband in the prison. There was no need for a hearing to
determine whether Pollock was the person who put it there.
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Pollock does not challenge the level of discipline imposed. Even if she
did, we would not disturb the Commission's determination. "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.'" In re Herrmann, 192 N.J. 19, 28 (2007) (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 Polk, 90 N.J. at 578). The sanction of removal in this case does not
shock one's sense of fairness considering the numerous serious violations at
issue and Pollock's prior disciplinary history.
The Commission's decision is supported by sufficient, credible evidence
on the record as a whole. R. 2:11-3(e)(1)(D). To the extent we have not
otherwise addressed petitioner's arguments, they are without sufficient merit to
warrant discussion in a written opinion. R. 2:11-3(e)(1) (E).
Affirmed.
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