Moore v. Youth Correctional Institute

The opinion of the court was delivered by ASHBEY, J.A.D. Appellant James Moore was a senior corrections officer at the Youth Correctional Institution at Annandale.1 The Merit System Board (Board) of the Department of Personnel determined that, pursuant N.J.S.A. 2C:51-2, he had forfeited his entitlement to that employment.2 Moore appeals and we affirm. — 377 — The record reveals that on December 24, 1985, Moore was initially suspended and removed from his position as a senior corrections officer by the Department of Corrections (Department), effective February 18, 1986. Moore contested this suspension and removal with the Department of Personnel, resulting in a contested hearing before an administrative law judge (ALT). On October 14, 1986, the AU recommended to the Board that Moore be disciplined, but that the Department’s removal be vacated and that he be suspended without pay for 30 days. On November 25, 1986, the Board, at its public meeting, accepted the recommendation of the AU and reversed the Department’s order of removal, ordering that Moore be suspended for 30 days beginning on December 24, 1985 and that he receive back pay for the period following his suspension to the date of his actual reinstatement. That order was reduced to writing on December 5, 1986. On January 14, 1987, Moore was convicted of the harassment of his Department supervisor, in violation of N.J.S.A. 2C:33-4, in White Township Municipal Court. On February 4, 1987, the Department reinstated Moore to the payroll at the institution and simultaneously again suspended him from his position. This accorded with a preliminary notice of disciplinary action which referred to the harassment conviction and to N.J.A.C. 4:l-16.9(a)(ll)3 (conduct unbecoming an employee in public service). On February 17, 1987, Moore was given a departmental hearing which again resulted in his being removed from his position. The Department’s final notice of disciplinary action stated: The following charge(s) was sustained: N.J.S. 2C:33-4A NJ.S. 2C:33-4C N.J.A.C. 4:l-16.9(a)ll. Conduct unbecoming an employee in public service. — 378 — The following disciplinary action has been taken against you: He***# *$#>)< Removal.4 Moore again appealed to the Board. The matter was again referred as a contested matter to an AU, who initially decided that petitioner’s “employment terminated as of January 14, 1987 [the date of his conviction].” On January 12, 1988, the Board accepted the AU’s initial decision that the forfeiture statute applied, and that by his conviction, Moore forfeited his employment. On appeal, Moore challenges the application of the forfeiture statute on two grounds. He first claims that he could not forfeit employment at a time when he was not employed by the Department. In the alternative, he asserts that his municipal court conviction did not “involve” or “touch” that employment. N.J.S.A. 2C:51-2 provides as follows: a. A person holding any public office, position, or employment, elective or appointive, under the government of this State or any agency or political subdivision thereof, who is convicted of an offense shall forfeit such office or position if: (1) He is convicted ... of an offense involving dishonesty or of a crime of the third degree ...; (2) He is convicted of an offense involving or touching such office, position or employment; We first address the question of whether Moore was employed on November 26, 1986, when the complaint which formed the basis of the conviction was filed. That date was one day after the Board had ruled at its public meeting that Moore was entitled to reinstatement and to back pay. Moore contends that he was not employed by the Department on that date for several reasons: (1) because he was employed elsewhere, (2) because the Department did not regard him as an employee, and (3) because his reinstatement was not effective until De — 379 — cember 5, 1986, the date when the Board mailed the decision to him, relying on N.J.S.A. 52:14B-10(e) and Belleville v. Coppola, 187 N.J.Super. 147 (App.Div.1982). We reject this position. Our review of the record persuades us that Moore was an employee on the date in question. The Department’s attempt to remove him had been declared ineffective the day before. Although there were ancillary disputes about the extent of his right to back pay, none of them challenged his entitlement to pay as an employee of the Department on November 26, 1986. While N.J.S.A. 52:14B-10(e) refers to the date of mailing as the effective Board decision date, under N.J.S.A. 52:14B-10(d), the Board’s public oral decision was its final decision. In Belleville v. Coppola, supra, 187 N.J.Super. at 152 we stated that the Board’s oral timely decision was effective, despite an untimely delivery of the Board’s written decision. Appellant does not contend that the law would permit the administrative oral final ruling to be modified in any substantive way by the subsequent written memorandum.5 Our review of the apparent conflict between N.J.S.A. 52:14B-10(d) and N.J.S.A. 52:14B—10(e) persuades us that the latter section was designed to preserve the right to move for reconsideration and to appeal following receipt of notice. See N.J.A.C. 4A:2-1.6. While Moore’s appeal to the Board was pending, the Department’s removal was “major discipline”, N.J.A.C. 4A:2-2.2, of an “employee”, N.J.A.C. 4A:2-2.1. Nothing in the Administrative Procedure Act or its rules or in either Civil Service Act, the one in effect when Moore was initially disciplined or the one in effect when the Board issued its decision, describes someone in Moore’s position as anything but an “employee”, so long as service with the Department has not — 380 — been effectively terminated by a Board final ruling to that effect. See N.J.S.A. 11:15-4,-5; Matter of Morrison, 216 N.J. Super. 143, 151 (App.Div.1987); N.J.S.A. 11A:2-6a. We now come to what we regard as the more difficult issue, whether Moore’s conviction for a petty disorderly offense against his departmental supervisor “involv[ed] or touch[ed]” his employment. The victim of the “harassment”, Michael Morris, was a corrections captain and had been Moore’s longtime immediate supervisor at the time of his 1985 suspension. The municipal court merged two complaints. Morris’ first complaint was that Moore made a harassing telephone call to Morris, N.J.S.A. 2C:33-4a, “using offensively coarse language and threatening to do harm”. His second was that Moore harassed him by coming to his home, racing his car engine, speeding away from the house and returning, as a “course of alarming conduct or of repeatedly committed acts” whose purpose was “to alarm or seriously annoy” Morris. N.J.S.A. 2C:33-4c. Moore conceded before the AU that he could not challenge the fact of the conviction which followed a trial. He urged the AU to find that the conviction was unrelated to Moore’s employment, although “part of an employment situation.” The genesis of the conviction was a claimed animosity held by Moore against Morris stemming from the 1985 disciplinary proceedings which had been the subject of the Board’s reinstatement of Moore the day before Morris made his complaint. Morris had investigated the 1985 allegation that Moore was waving his arms visibly in the institution’s public areas covered in a white sheet, leading inmates to believe that he was disguised as a Ku Klux Klan figure. In the administrative law hearing on this charge, Moore denied doing anything but carrying white sheets, but the AU concluded that Moore was guilty as charged of various disciplinary infractions: neglect of duty, creating a disturbance on State property, mental abuse of inmates, intentional misstatement of a material fact and inten — 381 — tional abuse or misuse of authority or position. (These findings were never modified on appeal.) Morris had taken a leading prosecutorial part in these proceedings. While there was no testimony concerning any confrontation between Moore and Morris from the time of the 1985 suspension and November 26, 1986, it was a fair inference from the record that Morris had complained to departmental superiors when Moore appeared on the grounds of the institution during that time, even though his presence was in connection with other employment. Whether Moore knew about that complaint was not clear. Moore testified that he kept in touch with institutional developments through his brother and by frequenting a bar also frequented by correction officers from the institution. Our record of the harassment conviction consists of the words of the complaint, the fact of the conviction, and the testimony of Moore and Morris before the AU. Morris testified that on the day after the Merit System Board reinstated Moore, Moore called Morris on the telephone. According to Morris, Moore said, “oh, you like to fuck with people’s lives, I’m gonna fuck with your life.” Approximately 10 minutes later, Moore drove in front of Morris’s home, and parked on the front lawn. Moore waited a few minutes, pulled into the driveway, raced his motor, spun his tires and sped away. Moore returned “a few moments later” parked across the street and “just sat in his truck.” Morris then left his house, went to his front porch and spoke to Moore. He told Moore to stop doing what he was doing because he (Morris) had reported Moore to the authorities and he could get into trouble. Moore responded by saying “he [Moore] would do what he’d have to do.” Morris testified that when Morris went to work, he found Moore’s truck parked at the entrance to the institution, with Moore “observing” him. Before the AU Moore testified that he made no telephone call, no threats, and never saw Morris on the day in question. He said that rain had cancelled his regular employment as a — 382 — laborer, that he had passed Morris’s house more than once, but that he had done so with a friend with whom he was shopping for a Christmas tree at the farm adjoining Morris’ premises. He further said that he had not testified at the municipal court, but that his friend had testified in accord with his history of the incident. No municipal transcript was proffered. The AU ruled that the convictions represented a factual finding concerning the events described in the complaint, including the elements of the offense of harassment, and that the additional testimony was properly relevant concerning whether the harassment “touched” Moore’s employment. Moore first contends that the AU erred when he admitted Morris’ testimony because there was nothing in the record to support a finding that the municipal court judge had found it credible. This position is without merit. While the conviction was not admissible to prove any fact essential to sustain the judgment under Evid.R. 63(20) because the offense was not indictable, in similar circumstances a harassment conviction has been held to estop a public employee from retrying in the administrative disciplinary hearing the facts which sustained the conviction. Matter of Tanelli, 194 N.J.Super. 492, 498 (App.Div.1984), certif. den. 99 N.J. 181 (1984). Before the AU Moore conceded that the purpose of the hearing was to determine whether the conviction had “injurious effects on his employment,” and Moore was given every opportunity to try that issue. We reject his assertion that, because the municipal complaints were merged into one conviction for making the harassing telephone call, the State was somehow estopped from introducing evidence relating to the other incident to demonstrate that the conviction for making the telephone call involved or touched his employment, or because the municipal court’s findings respecting credibility were not explicit. Moore also contends that the harassment offense did not involve or touch his employment because it did not take place during employment hours or on employment grounds. Our — 383 — review of the case law persuades us that what constitutes a conviction “involving or touching” public employment as defined in N.J.S.A. 2C:51-2a(2) has not been greatly explored by the courts.6 We do not, however, derive any articulated requirement that the nexus be limited by time and location. In Bevacqua v. Renna, 213 N.J.Super. 554, 560 (App.Div.1986), an electrical inspector licensed by the Commissioner of Community Affairs was convicted of a disorderly persons theft involving failure to remit inspection fees to a municipality. While there was question concerning whether Bevacqua was a “public official”, there was no question concerning the relationship of his conviction to his employment. In State v. Musto, 188 N.J.Super. 106 (App.Div.1983), aff’g 187 N.J.Super. 264 (Law Div.1982), we approved Judge O’Brien’s conclusion that a federal conviction for mail fraud and racketeering triggered the application of the State forfeiture statute. Judge O’Brien’s opinion explored at length the legislative history preceding N.J.S.A. 2C:51-2, but concluded that N.J.S.A. 2C:51-2a(l), rather than 2C:51-2a(2), applied. 187 N.J.Super. at 274. In State v. Botti, 189 N.J.Super. 127, 132 (Law Div.1983), Judge O’Brien, in denying petitioner’s motion for a stay of the forfeiture pursuant to N.J.S.A. 2C:51-2a, refused to decide if any of the convictions for mail fraud, conspiracy, or income tax evasion “touch[ed]” the mayor’s employment because these offenses involved dishonesty and, therefore, warranted forfeiture under N.J.S.A. 2C:51-2a(l). In N.J. Turnpike Employees v. N.J. Turnpike Auth., 200 N.J.Super. 48 (App.Div.1985), certif. den. 101 N.J. 294 (1985), we held that a toll collector’s conviction for — 384 — being in possession of toll money he had reported missing made him subject to the forfeiture statute as a public employee, noting that “the law expressed in N.J.S.A. 2C:51-2 was intended to speak to the privileges and obligations of employees of government.” Id. at 54-55. Both N.J.S.A. 2C:51-2a(l) and (2) were applicable, however, provided the toll collector was considered a covered public employee. In Matter of Tanelli, supra, 194 N.J.Super. at 495, the issue was the forfeiture of a high school teacher’s position for a harassment conviction respecting telephone calls to his principal. The State Board of Education, however, concluded that the forfeiture statute was not yet effective when the acts took place, so the matter proceeded administratively as a charge of “unbecoming conduct” as provided in the Education Law, N.J.S.A. 18A:6-10 et seq. Respecting a similar issue, however, in State v. Bielecki, 196 N.J.Super. 332, 337 (App.Div.1984), certif. den. 99 N.J. 216 (1984), a police chief’s admission of lying to a State grand jury about furniture in his possession subjected him to discretionary forfeiture of his office under N.J.S.A. 2A:81-17.2a3 as an admission “relating to his employment or touching the administration of his office or position” because of the underlying facts. The State Grand Jury was investigating allegations of misappropriation of property (which was being held for charitable use) by policemen, including himself, while he was the chief of police. There was no evidence that any misappropriation or the chief’s lying about it occurred during his employment hours. While there is a difference between the two statutes, one of which uses the word, “relating to”, and the other uses the word, “involving”, both N.J.S.A. 2A:81-17.2a3 and N.J.S.A. 2C:51-2a(2) use the word “touching” the employment. None of the cases cited makes a distinction between actions — 385 — “involving or [actions] touching” employment,7 although the word “touch” was relied upon by the AU, who said, It would appear that the type of conduct that occurred here and resulted in appellant’s conviction for harassment of his immediate superior is precisely what the Legislature had in mind when it required that the offensive conduct merely touch the office, position or employment rather than a more rigid or demanding requirement that the conduct be directly and proximately related to the performance of a regular or assigned duty. The State takes the position that N.J.S.A. 2C:51-2a(2) requires employment forfeiture for every public employee who gets into a dispute over working conditions with his or her supervisor, if that dispute should lead to a petty disorderly offense conviction. Moore, on the other hand, urges the applicability of cases respecting non-forfeiture of pension benefits under similar circumstances. We disagree with both positions. Pension cases concern appropriate compensation for past duty, not fitness for present and future duty, and they have been distinguished on those grounds. See Uricoli v. Police & Fire Retirem. Sys., 91 N.J. 62, 73-76 (1982); Masse v. Public Employees Retirem. Sys., 87 N.J. 252, 264 (1981). In State v. Botti, supra, 189 N.J.Super. at 136, Judge O’Brien said, respecting the mayor in his private life, “[although the crimes involve defendant’s actions as a salesman for a private company, as earlier observed, they involve fraudulent conduct with respect to public bidding procedures. In his public role as mayor and commissioner Botti is called upon to act in compliance with public bidding laws.” In other words, whether a conviction involves or touches employment under the forfeiture statute does not depend upon whether the criminally proscribed acts took place within the immediate confines of the employment’s daily routine. The crux of the matter is whether the conviction and the facts upon which it is based have a direct and — 386 — incompatible relationship with the duties required by the employment. Our review of the nature of Moore’s employment persuades us that such a relationship existed. As a preliminary, we note that from his application for employment as a corrections officer onward, Moore was subjected to a higher standard respecting contact with the criminal justice system than other non-law-enforcement applicants for public employment. For instance, as a corrections officer, unlike other candidates for public employment, Moore could be questioned about his arrest record and he could be removed from a list of eligible appointees even though he had been pardoned or had his criminal conviction expunged. N.J.S.A. 11A:4-10,-11. More important, Moore’s employment conduct was specifically regulated as authorized by N.J.S.A. 30:lB-24 and N.J.A.C. 10A:3-1.1 et seq. respecting physical confrontation with others: for example, respecting the use of force upon inmates (N.J.A. C. 10A:3-3.1); the use of force against others (N.J.A. C. 10A:3-3.4); the use of deadly force (N.J.A. C. 10A:3-3.3); the use of mechanical restraints (N.J.A. C. 10A:3-3.6). These limitations were not confined to Moore’s conduct on the grounds of the institution. Every incident requiring the use of force was required to be reported to Moore’s “shift supervisor”, who also was required to approve the use of restraints (N.J.A. C. 10A:3-3.5,-3.6). The “shift supervisor” was responsible for security in any tour of duty (N.J.A. C. 10A:3-1.3). These regulations and others spelled out the hierarchical command inherent in Moore’s employment and its relationship to the use of only such force as necessary in his correctional work. Moore does not deny that he had a duty to enforce the law and to uphold the regulations of the institution in order to present an image of dependability to the inmates he guarded. See Moorestown Township v. Armstrong, 89 N.J.Super. 560, 566 (App.Div.1965), certif. den. 47 N.J. 80 (1966). We derive from the regulations governing his employment an additional conclusion that his duty was particularized concerning both his position in — 387 — the chain of command and the use of physical force.8 There are “special problems of [employee] discipline in a prison.” Belleville v. Coppla, supra, 187 N.J.Super. at 154 distinguishing Henry v. Rahway Prison, 81 N.J. 571 (1980).9 The provisions of N.J.S.A. 2C:51-2 were new with the criminal code, and harsher than those contained in the prior law. N.J.S.A. 2A:135-9 limited forfeiture of public employment to circumstances involving convictions for misdemeanors touching the position, or which involved moral turpitude. N.J.S.A. 2C:51-2 was enacted as a part of a chapter which represented “an effort to rationalize the collateral consequences of a criminal conviction.” The New Jersey Penal Code Volume II: Commentary, Final Report of the New Jersey Criminal Law Revision Commission (1971). The Model Penal Code source was Sec. 306.1 et seq., although the New Jersey statute differed significantly. N.J.S.A. 2C:51-1 states that unless otherwise provided, no person may suffer legal disability because of his conviction of an offense unless “the disqualification or disability involves the deprivation of a right or privilege ... when the commission of the offense or the conviction or the sentence is reasonably related to the competency of the individual to exercise the right or privilege of which he is deprived.” N.J.S.A. 2C:51-la(4). The 1971 commentary noted that, “[c]onviction in some instances may be relevant to the public safety interests underlying the regulation but in many others it is not.” We derive from examining this related statute and its history a — 388 — legislative intent to require a rational connection between a disqualifying conviction for an offense and the public employee’s competence, emphasizing underlying public safety where the employment so requires. We recognize that N.J.S.A. 2C:51-la(2), rather than N.J.S.A. 2C:51-la(4), specifically covers Moore’s conviction because forfeiture is a disability created by another section of the Code, but in our view the commentary sheds light on the intent of the entire chapter, including other sections of the Code. By L. 1987, c. 427, the Legislature amended N.J.S.A. 2C:51-2 to provide that the court may waive any of the forfeiture provisions respecting disorderly and petty disorderly offense convictions, clearly recognizing and approving the harsh terms of the unamended statute, but conferring judicial discretion to ameliorate the harshness of the civil penalties involved. Part of the legislative history of that amendment includes the Governor’s veto statement when he returned a previous bill to the Legislature for reconsideration. That statement, a reliable aid to legislative interpretation (see Fields v. Hoffman, 105 N.J. 262, 270 (1987)), includes the following quote: law enforcement officers are often placed in confrontational situations which may result in a complaint being filed against them for disorderly conduct, including offensive language, shoving, offensive touching, etc. While these disorderly persons offenses should be taken very seriously and dealt with sternly, they are not so serious in every case as to warrant the loss of position or the permanent, lifetime disqualification from holding such office. Our dissenting colleague contends that forfeiture must be “inherent” in the complaint and the conviction, but in our view the Governor’s statement clearly asserts that it is the facts underlying harassment complaints and convictions which determine whether a forfeiture will result (as well as whether waiver is appropriate). There is no requirement in the Code that relevant complaints or convictions refer to defendant’s employment in order to trigger forfeiture. As the parties framed it, the issue in this case is whether the Merit System Board’s action which terminated Moore’s public employment as a correction officer was supported by the — 389 — record. Both parties called the Board’s action a N.J.S.A. 2C:51-2 forfeiture. It may be argued that Moore’s civil service “forfeiture” was not a N.J.S.A. 2C:51-2 “forfeiture” but a determination that N.J.S.A. 2C:51-2 was applicable and that if Moore’s conviction made N.J.S.A. 2C:51-2 applicable, the Merit System Board was entitled to impose “automatic” employment termination administratively without having to find that Moore’s conduct met any other administrative criteria.10 In the posture of this appeal, we have no occasion to examine the Board’s authority on this or any other ground. Moore was convicted of deliberate and threatening conduct toward Department personnel in retaliation for being disciplined. While that conduct did not take place during business hours, we cannot find that the conviction therefor became less incompatible with Moore’s corrections employment because the conduct took place at his superior’s home. On the contrary, Moore’s threatening presence at Morris’ home might well have an enhanced chilling effect on Morris’ employment ability. Moore’s conduct threatened the future work of the Department respecting the competence of both employees. Public safety was implicated and the elements of N.J.S.A. 2C:51-2a(2) were properly established. We are satisfied, as was the Board, that Moore’s criminal conviction for harassing his immediate superior was one “involving or touching” his employment as a senior correction officer and that, therefore, he was properly removed from his employment effective with the date of his conviction. The final — 390 — decision of the Merit System Board is accordingly affirmed.11 Footnotes [1] Effective November 30, 1988, to be designated Mountain View Youth Correctional Facility. N.J.S.A. 30:lB-8. [2] At oral argument we were advised that where the appointing authority deems it applicable, the forfeiture statute has been invoked within administrative proceedings if the administrative action is subject to Merit System Board review. N.J.A.C. 4A:2-2.7(c) specifically now so provides. We recognize that our dissenting colleague questions whether the law authorizes such a procedure. As he notes, this argument was not raised by Moore, nor addressed by the State. [3] Now codified and renumbered at N.J.A.C. 4A:2-2.3(a)6, effective October 5, 1987. Because the AU concluded that Moore’s position was subject to forfeiture, he did not examine the applicability of those grounds for removal. [4] Moore does not contend that the notices did not inform him that N.J.S.A. 2C:51-2 applied. At oral argument before us we were advised that forfeiture was discussed at the departmental hearing. [5] Cf. Selengut v. Ferrara, 203 N.J.Super. 249, 263 (App.Div.1985), certif. den. 102 N.J. 316 (1985); Mahonchak v. Mahonchak, 189 N.J.Super. 253, 256 (App. Div.1983); Parker v. Parker, 128 N.J.Super. 230, 232-233 (App.Div.1974); State v. Pohlabel, 40 N.J.Super. 416, 423 (App.Div.1956). [6] N.J.S.A. 2C:51-2c provides that, in addition to forfeiture of employment under 2C:51-2a, a convicted public employee “shall be forever disqualified from holding any office or position of honor, trust or profit under this State or any of its administrative or political subdivisions” if "convicted of an offense involving or touching on his ... employment ...” Thus, the issue of extended forfeiture also concerns the meaning of “involving or touching” employment. However, an employee subject to the provisions of N.J.S.A. 2C:51-2c must have forfeited the original position, which, in most cases, has been because of the application of N.J.S.A. 2C:51-2a(l). [7] Webster’s New Universal Unabridged Dictionary (Simon and Schuster, 1979) gives for the verb “involve” a definition, "to bring into connection.” One definition of the verb “touch” is to "be or come into contact with.” We find little distinction in these meanings. [8] An element of "force” is necessarily implicated in Moore’s harassment conviction. N.J.S.A. 2C:33-4 (harassment) is a lesser included offense of N.J.S.A. 2C:12-la (simple assault), “the difference being in the level of fear induced.” CANNEL, TITLE 2C, Comment NJ.S. 2C:33-4, citing State v. Berka, 211 N.J.Super. 717 (Law Div.1986). [9] The extent to which law enforcement employment “implicates a serious state interest” rendering otherwise protected employee conduct cause for discharge is discussed in Rankin v. McPherson, 483 U.S. 378,-, 107 S.Ct. 2891, 2898, 97 L.Ed.2d 315, 327 n. 13 (1987), reh’g den. — U.S.-, 108 S.Ct. 31, 97 L.Ed.2d 819 (1987). [10] See N.J.A.C. 4A:2-2.7(c): Where an employee has pled guilty or been convicted of a crime or offense which is cause for forfeiture of employment under NJ.S.A. 2C:51-2, the departmental hearing shall be limited to the issue of the applicability of N.J.S.A. 2C:51-2. If N.J.S.A. 2C:51-2 is found not applicable, related disciplinary charges, if any, may be addressed at the hearing. [Emphasis added.] [11] Moore's waiver application is pending before the municipal court. We do not pass upon its merits, or even whether the Board’s ruling triggered an N.J.S.A. 2C:51-2c penalty.