OATH Administrative Law Judge [ALJ] Seon Jeong Lee credited the testimony of the Respondent’s fellow correction officers, which was supported by their contemporaneous notes and reports, in finding that Respondent entered a department facility while in possession of her personal cell phone.
While the Appointing Authority [Employer] sought termination for the proved charges, the ALJ found this penalty to be excessive citing the principle of progressive discipline and mitigating factors such as the speed with which Respondent left the facility and secured her phone on the bus after realizing it was on her person and before the start of a housing search operation. Additionally, the ALJ noted that although this was Respondent’s second offense related to making a dishonest statement, Respondent had served the Department for eight years, the underlying incident did not cause injury or risk to others, and a penalty short of termination could deter against similar misconduct in the future.
Accordingly, the ALJ recommended the Employer impose a 10-day suspension without pay for the unauthorized possession of a cell phone and a 40-day suspension without pay for the false or misleading report.
Click HERE to access Judge Seon Jeong Lee's decision and recommended penalty posted on the Internet.