Caldwell v. New Jersey Department of Corrections

STERN, J.A.D.,

concurring.

The United States Supreme Court has held that the due process clause requires “that an individual be given an opportunity for a hearing before he is deprived of any significant property interest”, Boddie v. Connecticut, 401 US. 371, 379, 91 S.Ct. 780, 786, 28 L.Ed.2d 113, 119 (1971) (emphasis in original), and that “[t]his principle requires some kind of a hearing prior to the discharge of an employee who has a *617constitutionally protected property interest in his employment.” Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542, 105 S.Ct. 1487, 1493, 84 L.Ed.2d 494, 504 (1985). In Loudermill the Court indicated that the hearing “though necessary, need not be elaborate.” 470 U.S. at 545, 105 S.Ct. at 1495, 84 L.Ed.2d at 506. “[T]he formality and procedural requisites for the hearing can vary, depending upon the importance of the interests involved and the nature of the subsequent proceedings.” Id., quoting Boddie v. Connecticut, supra, 401 U.S. at 378, 91 S.Ct. at 786, 28 L.Ed.2d at 119. “In general, ‘something less’ than a full evidentiary hearing is sufficient prior to adverse administrative action.” Loudermill, supra, 470 U.S. at 545, 105 S.Ct. at 1495, 84 L.Ed.2d at 506.

... [T]he pretermination hearing need not definitively resolve the propriety of the discharge. It should be an initial check against mistaken decisions— essentially, a determination of whether there are reasonable grounds to believe that the charges against the employee are true and support the proposed action. **$$*#**
The essential requirements of due process, and all that respondents seek or the Court of Appeals required, are notice and an opportunity to respond. The opportunity to present reasons, either in person or in writing, why proposed action should not be taken is a fundamental due process requirement____ The tenured public employee is entitled to oral or written notice of the charges against him, an explanation of the employer’s evidence, and an opportunity to present his side of the story____ To require more than this prior to termination would intrude to an unwarranted extent on the government’s interest in quickly removing an unsatisfactory employee. [Id., 470 U.S. at 545-546, 105 S.Ct. at 1495, 84 L.Ed.2d at 506. (citations omitted)].

Because of security interests and fears attendant to the discovery of information obtained confidentially from inmate informants, disciplinary proceedings in the prison setting have always been treated differently than in other contexts. See e.g., Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974); Avant v. Clifford, 67 N.J. 496, 341 A.2d 629 (1975). This is not the occasion to decide the application of Loudermill in the prison setting, its scope or the degree to which, if at all, the due process rights afforded by Loudermill require discovery by a corrections officer of confidential information in order to respond to the charges noticed based on his *618insubordination in failing to take the drug test.1 This is particularly true because this case involves a violation of the department’s own regulations and procedures which provide that:

In those instances when an officer ... refuses to provide a urine sample or refuses to remain within a specified area until able to urinate, the officer ... will be subject to disciplinary charges and dismissed from employment if, after a fair and impartial hearing, it is determined that the officer ... was properly ordered to undergo testing, (emphasis added).

Further, as the majority notes, the petitioners were told at the time they were directed to take the exam that “[i]f the officer refused to provide the sample, he would be placed on suspension with pay, pending a hearing.” At 604, 595 A.2d at 1124. Therefore, and because I agree with the court’s conclusion on the cross-appeal as developed in Point VI of the opinion, I find it unnecessary to consider the constitutional issues developed in Point V. Specifically, I find it unnecessary to “reject so much of the holding in Poole v. Stephens, [688 F.Supp. 149 (D.N.J.1988) ] as provides that an employer is not required to disclose the source and/or identity of the reasons for the individualized suspicion at a Loudermill hearing.” At 615, 595 A.2d at 1129. To the contrary, if we had to address those issues, I would be inclined to agree with Judge Bissell’s analysis of the Loudermill issue relative to the same procedures involved in this case (see 688 F.Supp. at 151-154; facts 12, 29 and 35):

Pear of retaliation and the chilling effect which that may have upon prisoners and other corrections officers revealing an officer’s drug abuse are very real concerns aggravated by the confined setting of a prison. The fourth amendment principles do not require disclosure of the grounds and sources of information to one about to be subjected to an otherwise reasonable search and seizure ... The codified procedures, which require a high-level decision based upon a contemporaneous memorandum which freezes the bases for the alleged suspicion, provide protection to the corrections officers. Although source *619disclosure is not required at the Loudermill hearing, it will inevitably be required if an officer invokes his right to further, formal hearings and judicial review. These post-termination hearings satisfy due process requirements. [688 F.Supp. at 157-158 (footnote omitted) ].2

Subject to the caveats expressed above, I join the court’s opinion.

I recognize that there is a difference between discipline of prisoners and corrections officers, but in both instances the case can be based in whole or part on confidential information received from an inmate informer. The concern about retaliation upon disclosure may be greater when the informer is an inmate living in the prison with the person disciplined.

I need not address herein the scope of discovery at the post-termination hearing. However, I tend to believe that the ultimate "source disclosure” whenever required may frequently be satisfied by reference to “unnamed staff and inmate informants.” (majority at 615, 595 A.2d at 1130).