Moore v. Youth Correctional Institute at Annandale

• Decision Date: 12 June 1990
• Citation: 119 N.J. 256,574 A.2d 983
• Parties: James E. MOORE, Jr., Appellant, v. YOUTH CORRECTIONAL INSTITUTE AT ANNANDALE and the New Jersey Department of Corrections, Respondents.
• Court: New Jersey Supreme Court

Page 256

119 N.J. 256

574 A.2d 983

James E. MOORE, Jr., Appellant, v. YOUTH CORRECTIONAL INSTITUTE AT ANNANDALE and the New Jersey Department of Corrections, Respondents.

Supreme Court of New Jersey.

Argued Feb. 26, 1990.

Decided June 12, 1990.

Robert A. Fagella, for appellant (Zazzali, Zazzali, Fagella & Nowak, Newark, attorneys).

Jeffrey A. Bartolino, Deputy Atty. Gen., for respondents (Robert J. Del Tufo, Atty. Gen. of New Jersey, attorney; Michael R. Clancy, Asst. Atty. Gen., of counsel).

The opinion of the Court was delivered by

GARIBALDI, J.

This appeal concerns the interpretation of N.J.S.A. 2C:51-2(a)(2), which provides that a person holding public employment shall forfeit public employment if he or she "is convicted of an offense involving or touching such office, position or employment." Moore, a senior prison corrections officer, was convicted in municipal court of harassing his supervisor, a petty-disorderly-persons offense. His employer, the New Jersey Department of Corrections ("DOC"), determined that he had forfeited his employment as a result of his conviction. The Merit System Board of the Department of Personnel ("Merit Board") and a majority of the Appellate Division also affirmed Moore's removal from his employment. Moore appeals as of right by reason of a dissent in the Appellate Division. R. 2:2-1(a)(2).

I

In 1975 DOC employed James Moore as a corrections officer at the Youth Correctional Institute at Annandale ("YCIA"). Moore's present employment woes began on the evening of December 23, 1985, when correctional officers looked out their windows and observed an odd spectacle. A figure covered with a white sheet was waving its arms from the courtyard. Within a few seconds inmates came to look out the windows. The words "Ku Klux Klan" sounded among the inmates. About twenty to twenty-five inmates expressed their concern at the sight of the white-sheeted figure.

The sergeant in charge commenced an investigation of the incident by calling into his office the only other correctional officers on duty. He told them that if either of them had been involved in the incident he better "fess up now or there would be big trouble." Moore then admitted to having thrown a sheet over himself. Moore left the room and returned with a sheet, which he gave to the sergeant. Moore denies admitting that he did anything with the sheet besides throwing it over his shoulder.

The day after the incident Moore was suspended without pay. Captain Michael J. Morris, Moore's immediate supervisor, took charge of the investigation of the incident. He drafted seven charges against Moore: neglect of duty, creating a disturbance, mental abuse of inmates, intentional misstatement of a material fact, intentional abuse or misuse of authority or position, notoriously disgraceful conduct and leaving an assigned work area without permission, thereby creating a danger to persons or property. At a departmental hearing, Captain Morris acted as the prosecutor. Following the departmental hearing, Moore was removed from his position.

Moore appealed his removal to the Merit Board, which referred the matter to the Office of Administrative Law. During the time the appeal was pending, the Department forbade Moore from entering the Annandale facility and granted him no pay or benefits. Moore obtained employment as a laborer with a local trucking company.

At the hearing conducted before an Administrative Law Judge (ALJ), Captain Morris assisted the Deputy Attorney General who prosecuted Moore. The ALJ found that Moore had thrown one or more sheets over his head and had walked through the courtyard in full view of the inmates. The ALJ concluded that the evidence supported a finding of guilt on all charges except notoriously disgraceful conduct and creating a danger to persons or property by leaving an assigned work area without permission.

Nonetheless, after considering Moore's work record and concluding that Moore's conduct was not malicious, criminal, inherently evil, or committed with intent to injure, the ALJ recommended that the appropriate sentence was suspension without pay for a period of thirty days not removal. The Merit Board announced that it accepted and adopted the findings of the ALJ. Specifically it reversed the earlier decision to remove Moore and instead imposed a thirty-day suspension on Moore and ordered that he receive back pay for the period following his suspension to the date of his actual reinstatement.

The events that led to Mr. Moore's municipal court conviction for harassing his supervisor occurred on the morning of November 26, 1986, the day after the Merit Board orally issued its order of reinstatement. Captain Morris testified that on the morning of the 26th he received a call at home from a man he identified as Moore. "You like to play with people's lives, I'm gonna ... fuck with your life," the voice said. Later, Mr. Moore arrived at Captain Morris' home. He drove his truck onto Morris' lawn and parked it in front of the house. Thereafter, Moore drove his truck into Morris' driveway, raced his motor, spun his tires, and drove away. Moore returned in a short while and parked across the street from Morris' house. Captain Morris emerged from his house to tell Moore to stop harassing him and to warn him that he should leave because he had reported him to the police and he could get in trouble. Moore responded that "he would do what he'd have to do."

Captain Morris later went to the White Township police and signed a complaint charging Moore with two petty disorderly complaints of harassment. Specifically he charged that Moore had harassed him: (1) "by telephoning complainant using offensively coarse language, and threatening to do harm, contrary to 2C:33-4(a)," and (2) "by repeatedly committing acts with purpose to harm or seriously annoy complainant to wit: came to home and remained in automobile racing his engine, sped off at high rate of speed and returned contrary to the provisions of 2C:33-4(c)."

After Captain Morris had returned home, Moore drove slowly past his home, turned around at the end of Morris' property line, drove up, got out of his car, and just stood and watched. Captain Morris called the State police, but Moore left before the police arrived at Morris' house. Morris then drove to work where he again spotted Moore sitting in his truck at the entrance to the Annandale prison, observing him.

After a hearing in White Township Municipal Court, in which Moore appeared pro se, he was found guilty of both charges of harassment. The court merged the second conviction into the first and assessed Moore a fine of $100.00, costs of $25.00, and a Violent Crimes Compensation Board penalty of $30.00. Moore did not appeal that conviction.

On February 4, 1987, the DOC reinstated Moore to the payroll of YCIA. Shortly thereafter, the Department served him with a Preliminary Notice of Disciplinary Action announcing that it would seek his removal for conduct unbecoming a State employee ( N.J.A.C. 4:1-16.9(a)9(ii) ¹ and for his municipal-court convictions under N.J.S.A. 2C:33-4(a) and 2C:33-4(c). After a departmental hearing Moore once again was removed from his position. The Department's final notice of disciplinary action stated: "The following charges were sustained: N.J.S.A. 2C:33-4A, N.J.S.A. 2C:33-4c, N.J.A.C. 4:1-16.9(a)11. Conduct unbecoming an employee in public service. The following disciplinary action has been taken against you: Removal."

Again, Moore appealed to the Merit Board, which referred the matter to the OAL. At the OAL hearing, Captain Morris testified as to the acts of harassment as set forth in his complaint. Moore admitted driving far from his home to Captain Morris' neighborhood and to passing the Captain's house more than once. However, he denied harassing Captain Morris. He stated that he had sought only to purchase a Christmas tree at the farms adjoining Captain Morris' house. He stated that he had not defended vigorously against the criminal conviction because he was unaware that forfeiture of his public position would be an ensuing result. Despite Moore's protestations, the ALJ recommended that Moore's appeal be dismissed and that his criminal conviction should result in the forfeiture of his State employment as of the date of his January 14, 1987, conviction. The Merit Board affirmed the ALJ's decision and determined that Moore had forfeited his employment on the date he had been convicted of the charges in municipal court.

Moore appealed the Board decision to the Appellate Division, the majority of which affirmed the Board. 230 N.J.Super. 374, 553 A.2d 830. Before the Appellate Division Moore argued that (1) he could not forfeit his employment at a time when he was not employed by the Department, and (2) in the alternative, even if he was employed, his municipal court conviction did not "involve" or "touch" that employment.

Both the majority and dissent rejected Moore's first argument and concluded that he was an "employee" on the day the harassment occurred. Because Moore did not file a petition for certification, that issue is not before the Court.

The Appellate Division, however, divided on Moore's second argument. The majority of the court concluded that Mr. Moore's deliberate and menacing conduct towards his supervisor in retaliation for being disciplined threatened the future work of the Department, implicated public safety, and "involved and touched" his employment as a senior corrections officer. Consequently, a majority of the Appellate Division affirmed the Merit Board.

The dissent, on the other hand, favored a narrow application of the forfeiture statute and maintained that because Moore's misconduct did not occur during working hours or at the place of employment, it did not "involve or touch" his employment. The dissent also asserted that the Department lacked jurisdiction to decide the issue of forfeiture because that should be decided...