Opinion
DOCKET NO. A-1950-13T3
06-14-2016
SUSAN HOLLANDER, Appellant, v. BOARD OF TRUSTEES OF THE POLICE and FIREMEN'S RETIREMENT SYSTEM, Respondent.
Samuel J. Halpern argued the cause for appellant. Joseph F. Dorfler, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Melissa A. Haas and Danielle P. Schimmel, Deputy Attorneys General, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Accurso and O'Connor. On appeal from the Board of Trustees of the New Jersey Police and Firemen's Retirement System, Docket No. 3-49808. Samuel J. Halpern argued the cause for appellant. Joseph F. Dorfler, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Melissa A. Haas and Danielle P. Schimmel, Deputy Attorneys General, on the brief). PER CURIAM
Petitioner Susan Hollander appeals a November 6, 2013 final decision of the Board of Trustees, Police and Firemen's Retirement System (Board) finding that she forfeited her entire pension benefit due to dishonorable service. For the reasons that follow, we vacate the Board's final decision and reinstate the initial decision of the Administrative Law Judge (ALJ), who recommended a forfeiture of three years of petitioner's pension service, as the final agency determination.
I
Petitioner was enrolled into the Police and Firemen's Retirement System (PFRS) in April 1984, when initially hired as a corrections officer by the New Jersey Department of Corrections (DOC) at the Edna Mahan Correctional Facility for Women (facility). While in this position over the ensuing twenty-five years, she was promoted to the position of senior corrections officer.
In November 2008, petitioner submitted an application for retirement benefits, to be effective the following August. Her application was initially approved by the New Jersey Division of Pension and Benefits in June 2009. However, in July 2009, the DOC began an investigation of petitioner after an inmate was caught with a cellular phone, a prohibited item in the prison, and reported petitioner had given her the phone. The inmate also reported petitioner had provided her with beauty products that were not available in the prison commissary, and gave her two money orders that, in the aggregate, totaled $250. Finally, the inmate informed investigators that petitioner had attempted to "push up" on her a couple of times, although she did not do anything of a sexual nature.
Petitioner was charged with second-degree providing a communications device to a confined person, N.J.S.A. 2C:29-10(d); second-degree official misconduct, N.J.S.A. 2C:30-2(a); and fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3(b). Petitioner retired as planned on August 1, 2009 but, because of the pending charges, did not receive any pension benefits.
In October 2010, petitioner pled to third-degree providing a communications device to a confined person, N.J.S.A. 2C:29-10(d), and the other two charges were dismissed. Administrative charges that had been leveled against her were dropped when she pled guilty to the one criminal offense.
In March 2011, petitioner was sentenced to a three-year term of imprisonment. She was also ordered to forfeit her public employment, although by then she had retired from her position as a corrections officer, and was barred from holding any public position in the future. Petitioner's term of imprisonment was subsequently commuted to nine months, of which she served only four months before being admitted into an intensive supervision program.
In October 2011, the Board found petitioner had to forfeit her entire PFRS service and salary credit because of her conviction. The Board addressed the eleven factors set forth in Uricoli v. Bd. of Trs., 91 N.J. 62, 77-78 (1982), subsequently codified in N.J.S.A. 43:1-3(c), that are to be considered when determining if a forfeiture of a public pension is warranted and, if so, whether it should be full or partial. The Board found there was a direct relationship between the misconduct and petitioner's employment, and that her misconduct reflected a "high degree" of moral turpitude. As for the latter finding, the Board commented:
The eleven factors in N.J.S.A. 43:1-3(c) are: "(1) the member's length of service; (2) the basis for retirement; (3) the extent to which the member's pension has vested; (4) the duties of the particular member; (5) the member's public employment history and record covered under the retirement system; (6) any other public employment or service; (7) the nature of the misconduct or crime, including the gravity or substantiality of the offense, whether it was a single or multiple offense and whether it was continuing or isolated; (8) the relationship between the misconduct and the member's public duties; (9) the quality of moral turpitude or the degree of guilt or culpability, including the member's motives and reasons, personal gain and similar considerations; (10) the availability and adequacy of other penal sanctions; and (11) other personal circumstances relating to the member which bear upon the justness of forfeiture." N.J.S.A. 43:1-3(c).
She jeopardized the security of the prison by giving the inmate a cell phone with camera capability. She violated prison protocol by this misconduct . . . . [A]s a law enforcement officer, she should be a
role model for the community and held to a high standard to abide by the laws and polices mandated by the State of New Jersey. As a sworn officer of the law, [petitioner] violated the public trust by her criminal actions. Therefore, based on this serious breach of security at the facility, the gravity of the offense, the ongoing relationship and special treatment with the inmate and the endangerment of other officers and their families, the Board voted to forfeit her entire PFRS service and salary credit.
Petitioner requested a fair hearing, and the matter was transferred to the Office of Administrative Law to be heard as a contested case pursuant to N.J.S.A. 52:14B-1 to -15 and N.J.S.A. 52:14F-1 to -13. During a hearing before an ALJ, petitioner testified that, since 2006, she had maintained a friendly relationship with one of the inmates at the prison with whom she talked on occasion, but petitioner denied the relationship was in any way sexual, physical, or romantic. She commented that she had always tried to be "decent" to the inmates and observed corrections officers are not prohibited from conversing with the inmates.
Petitioner admitted that, once or twice in May 2009, she gave the inmate hair care products and cosmetics that could not be obtained from the prison commissary. In May 2009, she also gave the inmate money orders that totaled $250 in the aggregate, which was to cover the cost of filing an appeal of the convictions for which the inmate was incarcerated. Petitioner explained she felt sympathy for the inmate because the inmate's mother had cancer and the inmate was endeavoring to get out of prison to care for her. Because petitioner's own mother was suffering from congestive heart failure and other serious afflictions, petitioner empathized with the inmate's predicament and wanted to assist her.
Inmates are permitted to possess money orders; the cash from a money order is maintained in the inmate's account at the prison.
Approximately two weeks before her upcoming retirement on August 1, 2009, the inmate asked petitioner to give her a cell phone, indicating she wanted to keep in contact with petitioner after her retirement. Petitioner also wanted to stay in contact with the inmate but refused to give her a cell phone. However, when the inmate threatened to tell "internal affairs" that petitioner had given her the money orders, petitioner capitulated and gave her a cell phone on which were several hundred minutes of time, although the phone did not have the capacity to connect to the Internet. After reflecting upon her error, petitioner had resolved to retrieve the phone but the DOC staff discovered the phone in the inmate's possession before petitioner could do so.
Petitioner admitted that her actions were a serious error in judgment, a "terrible, terrible mistake," and that she deserved to be punished. She stated that giving the inmate the cell phone "definitely wasn't like me, I mean, I enforced every rule and regulation there," mentioning that on one occasion she did not shrink from reporting an immediate supervisor to his own supervisor for violating a prison rule.
She also testified that, during the period she gave the inmate the money orders and phone, she suffered from depression for which she eventually obtained medication, and was overwhelmed by her mother's afflictions and worried she was going to die. Before pleading guilty to conveying the cell phone to the inmate, petitioner had never been convicted of any crime or disciplined for violating any rule or regulation at the prison.
The ALJ found petitioner had a spotless record over the twenty-five years she had served as a corrections officer until just before her retirement, when she succumbed to a lapse in judgment and gave the inmate a cell phone. He accepted her assertion that she felt remorse over her conduct and intended to retrieve the phone from the inmate but was unable to do so before the inmate was caught. He also accepted as fact that petitioner and the inmate had not had a sexual relationship. Although in his written opinion the judge stated petitioner admitted to an "improper" familiarity with the inmate since 2006, petitioner in fact never testified her relationship was improper.
Although he did not condone petitioner's misconduct, the ALJ determined it would be unfair to forfeit twenty-five years of petitioner's pension credits for "an isolated act" that occurred within two weeks of her retirement. He stated:
While the act of giving a cell phone to an inmate is a substantial offense for a corrections officer, I believe this was an aberrant, out-of—character behavior for petitioner, who had no prior disciplinary history during many years of honorable service. The only personal gain that petitioner could have expected from giving the inmate a cell phone was a personal relationship; there was no intent to defraud or to deceive any individuals or organizations. [Also,] other penal sanctions have already been imposed.He also concluded that, although it was not until 2009 when petitioner engaged in the conduct that resulted in the conviction, petitioner's relationship with the inmate began in 2006. Thus, in his view, the forfeiture of three years of petitioner's pension credit was justified.
In its final decision the Board rejected the ALJ's initial decision and found its previous decision to forfeit petitioner's entire pension was warranted. Unlike the ALJ, the Board did not perceive the act of giving the inmate a cell phone to be an isolated incident but "an ongoing, if brief, process of planning, coordination and action." Because the Board did not deem this act an isolated one, the Board rejected the ALJ's recommendation that the forfeiture of petitioner's pension be only three years. The Board stated:
The ALJ[] . . . overemphasizes the one-time nature of Ms. Hollander's offense. This was not a spontaneous crime of opportunity or impetuousness, but involved planning, coordination and action that, if not intercepted by another corrections officer, indisputably would have put innocent parties in further danger. For this reason, the board rejects the ALJ's recommendation of a three-year partial forfeiture.
Although the Board stated it rejected the ALJ's recommended sanction for the reasons quoted above, in its final decision the Board appears to have rejected the ALJ's recommended sanction for additional reasons, which included that petitioner had risked the security of the inmates and other officers in an "escalating" manner, starting with giving the inmate beauty products, followed by providing money orders, and culminating in giving the inmate a cell phone. Further, according to the Board, the phone ended up in the possession of another inmate. Finally, the Board found petitioner had an "improper" relationship with the inmate.
II
On appeal, petitioner argues the Board's determination that a full forfeiture of her pension benefits is warranted is unduly harsh and, thus, arbitrary, capricious, and unreasonable. Petitioner contends the sanction imposed by the ALJ was reasonable and appropriate under the circumstances; she advocates that the Board's final decision be vacated and the ALJ's initial decision be reinstated as the agency's final decision in this matter.
Our role in reviewing the decision of an administrative agency is limited. In re Herrmann, 192 N.J. 19, 27 (2007). We cannot reverse an administrative agency determination unless we find that it was arbitrary, capricious, or unreasonable; that it lacked fair support in the evidence; or that the decision violated legislative policies. Id. at 27-28.
When an appellate court reviews 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.'" The threshold of "shocking" the court's sense of fairness is a difficult one, [and is] not met whenever the court would have reached a different result.
[Id. at 28-29 (quoting In re Polk, 90 N.J. 550, 578 (1982)).]While an appellate court must be vigilant about not substituting its own judgment for that of an agency, see Polk, supra, 90 N.J. 578, especially if the matter under review is directed to the agency's special "expertise and superior knowledge of a particular field," Herrmann, supra, 192 N.J. at 28, if after reviewing the record the court finds a sanction so disproportionate to an offense committed by a petitioner, in light of all the circumstances, as to shock one's sense of fairness, the sanction need not be affirmed.
We are also not bound by the agency's opinions on matters of regulatory law. See Levine v. Dep't of Transp., 338 N.J. Super. 28, 32 (App. Div. 2001). Further, an appellate court will not "disturb [an ALJ's] credibility determination, made after due consideration of the witnesses' testimony and demeanor during the hearing." H.K. v. Dep't of Human Servs., 184 N.J. 367, 384 (2005). Similarly, an "agency head may not reject or modify [an ALJ's] findings of fact as to issues of credibility of lay witness testimony" without demonstrating the findings were "arbitrary, capricious or unreasonable or [were] not supported by sufficient, competent, and credible evidence in the record." N.J.S.A. 52:14B-10(c). This principle is applicable in the specific context of pension cases. See Cavalieri v. Bd. of Trs., 368 N.J. Super. 527, 534 (App. Div. 2004) (noting that "[w]hen an ALJ has made factual findings by evaluating the credibility of lay witnesses, the Pension Board may no longer sift through the record anew to make its own decision.").
The receipt of a public pension is "expressly conditioned upon the rendering of honorable service by a public officer or employee." N.J.S.A. 43:1-3(a). The Board may "order the forfeiture of all or part of . . . [a] pension . . . for misconduct occurring during the member's public service which renders the member's service or part thereof dishonorable." N.J.S.A. 43:1-3(b). In evaluating a member's misconduct to determine whether it breaches the condition requiring that the member's service be "honorable" and whether total or partial forfeiture of the member's earned service credit is appropriate, the Board must consider and balance the eleven factors in N.J.S.A. 43:1-3(c).
The Board addressed these factors in its initial decision and the ALJ essentially did so in his written opinion. The first six factors of N.J.S.A. 43:1-3(c) cover background information about a petitioner. Here, none of the information provided in these factors is material to the issues on appeal. The eighth factor, which addresses the relationship between the misconduct and the member's public duties, see N.J.S.A. 43:1- 3(c)(8), is not in dispute, as there is no question the subject acts in issue were employment-related. For simplicity, we address the remaining factors without delineation because the facts intertwine.
It is not contested petitioner provided twenty-five years of untarnished, honorable public service when, within less than three months of retirement, she gave a gift of $250 to an inmate to facilitate the inmate's appeal. While such gesture was against prison regulations and cannot be condoned, this transgression was relatively minor and was not a criminal act. Petitioner neither gained nor sought to gain anything from her gesture, a gratuitous act. She also gave the inmate beauty products on a couple of occasions, another gratuitous act. While inappropriate, this infraction was minor and did not violate any criminal laws.
The third and unquestionably the most serious act was committed two weeks before her retirement, when petitioner gave a cell phone to an inmate, a criminal offense. She gave the phone to the inmate to keep her from reporting petitioner to internal affairs. The proper course of action would have been to have reported herself to her superiors but, to petitioner's credit, almost as soon as she turned the phone over to the inmate, she was struck by the gravity of her error and was preparing to take remedial action to get the phone back when it was discovered in the inmate's possession.
Unlike the evidence presented to the Board, the petitioner testified before the ALJ, who was able to gauge and evaluate her demeanor and credibility. The judge credited petitioner's assertion that once she gave the phone to the inmate, she experienced "terrible" remorse. Fortunately, the phone was discovered in the inmate's possession within a matter of days and confiscated without incident. On balance, it cannot be said that petitioner's actions reflected, as characterized by the Board in its initial decision, a "high degree of moral turpitude."
We also note there is evidence that at the time she gave the money orders and cell phone to the inmate, petitioner was suffering from depression and was distracted and beset by her mother's illnesses. She had otherwise been a devoted employee who, for twenty-five years, tenaciously adhered to the law and prison rules and regulations. Finally, the penal sanctions imposed upon her more than adequately punished her for her conduct.
Petitioner's mother eventually died in 2011. --------
We are mindful our standard of review is limited but, in our view, the Board's assessment of her actions and the remedy it deems appropriate — a total forfeiture of petitioner's pension benefits — is far too harsh a remedy under the circumstances. Our conclusion comports with analogous case law. For example, in Uricoli, supra, 91 N.J. at 65, the Court reversed the Board's forfeiture of the entire pension of a police officer, who had illegally "fixed" a careless driving ticket for the relative of a friend. As here, before the incident the officer — who was the chief of police in his municipality - had over two decades of honorable service on the police force. Ibid.
Although the Court acknowledged the officer's wrongful conduct could not be "understated" and there was a "direct and actual relationship to the performance of [the chief]'s public duties," it nevertheless found the misconduct insufficient to warrant the forfeiture of his entire pension. Id. at 78-79. Among other things, the officer had provided many years of blemish-free service, the misconduct occurred just once, there was an absence of extensive or pervasive corruption, the officer did not realize any personal gain, and the penal sanctions were adequate. Id. at 79.
Here, petitioner also provided many years of honorable service; there was just one criminal act and two prison violations; there was a complete absence of any pervasive corruption; although petitioner committed the crime to avoid report of the two infractions, she later resolved to retrieve the phone and ultimately did not seek to benefit from her criminal act; the penal sanctions were adequate; and at the time she gave the inmate the toiletries, money orders, and cell phone, there were mitigating factors present that influenced her judgment.
Further, there are factual errors in the Board's final decision. Most important, the Board rejected the ALJ's initial decision because, in the Board's estimation, the act of giving the inmate the cell phone was not one event. The Board reasoned that because the act was not committed impulsively but, rather, was committed over time as petitioner planned and implemented the act, the crime was not an isolated event. However, petitioner committed only the one crime. That the crime required that petitioner buy the phone and hand it to the inmate at the prison does not diminish the fact the crime was a discrete, isolated act that was committed only once. Petitioner was not convicted of any other crime.
Second, according to the Board, the phone ended up in the possession of "an inmate whom Ms. Hollander never intended it to go." In fact, the phone did not end up in the possession of another inmate. There was evidence the inmate gave the phone to an ex-inmate so that she could buy and place minutes on the phone. However, there was no evidence the ex-inmate was prohibited from having a cell phone. How the phone got back into the inmate's hands is not known but petitioner was not implicated in that breach of security.
The Board also justified its final decision on the ground petitioner risked the security of the inmates and other officers in an "escalating" manner, commencing with giving the inmate beauty products, followed by providing the money orders, and, finally, giving the inmate the cell phone. However, while we do not condone petitioner's conduct and it is not disputed she violated prison rules when she gave the inmate beauty products and the money order, these two acts of misconduct were not crimes. Further, there is no evidence the presence of the beauty products and the money orders, which inmates are permitted to have in the facility, placed anyone's safety in jeopardy. The Board's suppositions are simply unsupported by the record.
In its final decision the Board indicated it reviewed the record and concluded petitioner had an "improper" relationship with the inmate. The ALJ's opinion did indicate in his written opinion that petitioner admitted to an "improper familiarity," but a review of her testimony reveals she never made such admission. Further, although she was charged with criminal sexual contact, that charge was dismissed and the ALJ credited her testimony when she denied having a sexual relationship with the inmate.
The Board's determination that petitioner's pension must be forfeited in its entirety cannot be sustained. The Board's reasons for rejecting the ALJ's recommendation are not supported by the record and ignore certain findings made by the ALJ that are grounded upon the judge's assessment of petitioner's credibility upon hearing her testimony.
As we have already noted, are acutely aware of our limited standard of review and the deference to which we must accord agency determinations. Herrmann, supra, 192 N.J. at 27. However, we have the authority to reverse an administrative agency determination if it lacks fair support in the record. Id. at 27-28. Further, we are obligated to intervene if the sanction imposed by an agency is "'so disproportionate to the offense, in light of all the circumstances, as to be shocking to one's sense of fairness.'" In re Stallworth, 208 N.J. 182, 194-95 (2011) (citing In re Carter, 191 N.J. 474, 484 (2007)). Here, both conditions are met.
The Board's final decision lacks support in the record and its ultimate sanction of forfeiting petitioner's entire pension, despite more than twenty-five years of honorable service, is so disproportionate to petitioner's acts of misconduct, in light of all of the circumstances, to shock our sense of fairness. To be sure, petitioner deserved the forfeiture of some of her pension but, under these facts, the ALJ's recommended penalty is not disproportionate to the crime and acts of misconduct petitioner committed.
Accordingly, the Board's final decision is vacated and the initial decision of the ALJ is reinstated. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION