In the Matter of Kodi Pollock, Etc.

• Court: New Jersey Superior Court Appellate Division
• Decided: January 31, 2024
• Docket: A-4042-21
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-4042-21

IN THE MATTER OF KODI POLLOCK, SOUTH WOODS STATE PRISON, DEPARTMENT OF CORRECTIONS. ____________________________

Submitted January 16, 2024 – Decided January 31, 2024

Before Judges Marczyk and Vinci.

On appeal from the New Jersey Civil Service Commission, Docket No. 2022-909.

Jacobs and Barbone, PA, attorneys for appellant Kodi Pollock (Louis Michael Barbone, on the brief).

Matthew J. Platkin, Attorney General, attorney for respondent New Jersey Department of Corrections, South Woods State Prison (Donna Sue Arons, Assistant Attorney General, of counsel; Kevin K.O. Sangster, Deputy Attorney General, on the brief).

Matthew J. Platkin, Attorney General, attorney for respondent New Jersey Civil Service Commission (Levi Malcom Klinger-Christiansen, Deputy Attorney General, on the statement in lieu of brief).

PER CURIAM Petitioner Kodi Pollock appeals from the July 20, 2022 final

administrative action of the Civil Service Commission which upheld her

removal from the position of senior corrections police officer with the New

Jersey Department of Corrections ("DOC"). Having considered the record and

applicable legal standards, we affirm.

We discern the following facts from the record. In 2016, Pollock was

hired by the DOC and assigned to South Woods State Prison in housing units

H1-2L and H1-2R. Elijah Blanton is a former inmate who was assigned to

housing unit H1-2R where he served as "head runner" until his release on August

29, 2020.1 Pollock was Blanton's housing unit officer and supervised Blanton.

In March 2021, the Special Investigations Division ("SID") of the DOC

began an investigation after receiving information from two confidential

informants that Pollock passed messages from Blanton, with whom she

allegedly was engaged in an unduly familiar relationship, to Blanton's former

cellmate, who was a current inmate. Surveillance video confirmed Pollock met

with Blanton's former cellmate as reported by the confidential informants.

1 Based on the record, the "head runner" is an inmate assigned to work in the housing unit cleaning and completing any other tasks assigned to the inmate by corrections officers. A-4042-21 2 Pursuant to communications information orders, the SID obtained call

detail records for mobile phone numbers associated with Pollock and Blanton ,

which revealed approximately 249 phone calls between the two. The calls began

as early as September 12, 2020, two weeks after Blanton was released from

South Woods and the first day Blanton's mobile number was active. Pollock

and Blanton spoke twice on September 12, 2020, for a total of one hour and

forty-two minutes. The SID obtained search warrants for the mobile phones and

seized the phones. Pursuant to communications data warrants, the SID extracted

approximately 10,180 text messages between Pollock and Blanton from the

phones.

On March 22, 2021, while Pollock was on duty as the housing unit officer,

the SID searched areas of housing unit H1-2R that were under Pollock's

supervision and discovered various contraband items. Her jacket contained food

items, vehicle keys, and other items from outside the facility. A locked cabinet

for which Pollock was responsible during her shift contained a small plastic bag

of the controlled dangerous substance ("CDS") Buprenorphine (Suboxone),

beard trimmers, and inmate-manufactured immersion heaters. Pollock assumed

control of the only keys to the locked cabinet at the beginning of her shift and

A-4042-21 3 was in possession of the keys at the time of the search. Two more immersion

heaters were discovered in the housing unit officer's podium bundled in a sock.

The text messages evidenced a personal and business relationship between

Pollock and Blanton. In a text exchange on September 22, 2020, they wrote:

[Blanton]: I think ou[r] chemistry is sublime girl[. I] told [yo]u long ago [yo]u have my heart and I meant that[.] I just want you to b[e] totally comfy with me . . . [I] truly [honestly] think [you are] amazing from head to toe and everything in between. And [I']m not just talking about our business ventures [I] want [to] keep [going] with every aspect of our relationship[.] [H]ow about [you?]

[Pollock]: [O]h okay that[']s awesome. [A]nd heck yes I want to continue with both and do everything. [Y]ou know [I']m down with you.

The text messages included photographs taken by Pollock of her in various

states of undress along with graphic descriptions of sexual acts Pollock and

Blanton intended to perform on each other. Other text messages were sent by

Pollock while she was at work, evidencing her use of her mobile phone while

on duty. In one such exchange they wrote:

[Blanton]: I love u sooo much kodi rose send me a pic [right now] pl[ea]s[e] and thank [yo]u[.]

[Pollock]: [A]t work eating Chinese [with photograph Pollock took of herself in uniform eating.]

A-4042-21 4 [Blanton]: [G]et it. I f[*******] love it [you're] the best[.] [L]ove [yo]u sweetness how do [yo]u still have [yo]ur phone[?]

[Pollock]: I brought it in lmao[.]

In another text message exchange, Pollock disclosed to Blanton an

incident in which an officer was assaulted by an inmate while sitting at his desk

and wrote, "people are getting hurt because inmates are stupid and with this new

detention it[']s like better for inmates and they want to go." Blanton then

encouraged her to leave her job and Pollock responded, "that's why [I] wan[t to]

get a move on with this stuff we wan[t to] do."

The SID conducted a recorded interview of Pollock. A summary of the

interview is included in the SID's administrative investigation report. 2 Pollock

initially denied any relationship with any current or former inmate but told the

investigators she received a call unexpectedly from a former inmate who was

assigned to her housing unit and wanted a construction job with her father.

Pollock recalled the inmate was one of her main runners for at least one year

and was able to describe him but denied knowing his name. Pollock denied

giving the inmate her phone number and did not know how the inmate was aware

2 The parties did not include the recording in the appellate record. Instead, they cite to the administrative investigation report. A-4042-21 5 of her father's business. Pollock said she spoke with the inmate a couple of

times but did not believe they spoke more than ten times. Pollock maintained

she was only acting as a conduit between the inmate and her father.

After the investigators confronted Pollock with evidence of 249 phone

conversations between her and Blanton, Pollock recalled the inmate's nickname

was "E" but repeatedly continued to deny she knew his name. Pollock also

recalled discussing his children and that he lived somewhere in Trenton. Pollock

denied any romantic relationship with "E" and denied the two ever met. Pollock

did recall giving "E" her address but did not know why she did that and did not

remember if she ever asked him to meet her. Pollock continued to deny she

knew his name.

When questioned about the frequency of her text messaging with Blanton

Pollock was not able to estimate the number of times they communicated.

Pollock told the investigator's she stored his number under the name "Alene"

which she believed was his wife's name. After being confronted with evidence

of over 10,000 text messages between her and Blanton, Pollock admitted she

sent him photographs of her in her bra and underwear and recalled graphic

exchanges in which they discussed performing sexual acts on each other.

A-4042-21 6 Pollock, however, denied ever engaging in a sexual relationship with Blanton

and insisted she was merely flirting.

Pollock denied the contraband found in the locked cabinet was hers, but

admitted she concealed food items in the lining of her jacket to evade detection

when entering the prison. Pollock acknowledged she and Blanton were or

intended to engage in business ventures together including a bounce house

business for profit. She also acknowledged she provided Blanton with

information so Blanton could send her money to help pay her bills.

As the interview progressed, Pollock admitted she and Blanton "talked on

the phone a lot . . . maybe a couple of hours here and there . . . throughout the

day." Pollock admitted her initial statement that she and Blanton talked a couple

of times was false, and claimed she initially provided untruthful responses

because she was embarrassed. Pollock admitted she was not honest with the

investigators, particularly about her inability to recall Blanton's name. When

asked if her statement was accurate and truthful, Pollock responded, "[a]t first

no[,] but then yes." Pollock contended that she did not believe it was

inappropriate for her to have contact with Blanton because he completed his

maximum sentence and was a "free man."

A-4042-21 7 Pollock was previously suspended for thirty days for other sufficient

cause, N.J.A.C. 4A:2-2.3(a)(12), specifically, violation of administrative

procedures and/or regulations involving safety and security, Human Resources

Bulletin ("HRB") 84-17: D-7. That prior incident involved undue familiarity

with inmates when Pollock secreted "herself in the laundry room, with the door

closed and lights out, with two inmates . . . ." Pollock was aware of the DOC

policy on staff/inmate over familiarity from that incident as well as her training.

Pollock was served with a preliminary notice of disciplinary action

charging her with: conduct unbecoming a public employee, N.J.A.C. 4A:2-

2.3(a)(6); other sufficient cause, N.J.A.C. 4A:2-2.3(a)(12); selling or possession

of alcoholic beverages or CDS while on State property and/or on duty, HRB 84-

17: C-2; falsification: intentional misstatement of material fact in connection

with work, employment application, attendance, or in any record, report,

investigation or other proceeding, HRB 84-17: C-8; divulging confidential

information without proper authority, HRB 84-17: C-10; conduct unbecoming a

public employee, HRB 84-17: C-11; use possession or sale of any CDS

(custody), HRB 84-17: C-13; improper or unauthorized contact with inmate –

undue familiarity with inmates, parolees, their families, or friends, HRB 84-17:

D-4; violation of administrative procedures and/or regulations involving safety

A-4042-21 8 and security, HRB 84-17: D-7; and violation of a rule, regulation, policy,

procedure, order, or administrative action, HRB 84-17: E-1.

After Pollock waived her right to a departmental hearing, the DOC issued

a final notice of disciplinary action sustaining the charges and removing Pollock

from her position. Pollock filed an appeal with the Commission, and the matter

was transferred to the Office of Administrative Law. The DOC moved for

summary decision. In a comprehensive written opinion dated June 23, 2022, the

administrative law judge ("ALJ") granted the DOC's motion for summary

decision, ordered that all the charges against Pollock were sustained, and

affirmed the penalty of removal.

The ALJ found, based on Pollock's admissions during the SID interview

and the other evidence presented, the DOC proved by a preponderance of the

evidence Pollock engaged in conduct unbecoming a public employee, N.J.A.C.

4A:2-2.3(a)(6), and constituting other sufficient cause, N.J.A.C. 4A:2-

2.3(a)(12). Specifically, the ALJ found Pollock engaged in an unduly familiar

relationship with Blanton within one year of his release from custody,

intentionally made false statements in connection with the SID investigation,

possessed contraband in the prison, and divulged confidential information to

A-4042-21 9 Blanton. On July 20, 2022, the Commission issued its final administrative

action accepting and adopting the ALJ's findings.

On appeal, Pollock argues there were material facts in dispute and

summary decision in the DOC's favor was improperly granted. She argues she

did not knowingly violate the DOC's staff/inmate over familiarity policy

because she believed the policy applied only to former inmates on community

release or parole status or some other form of criminal justice jurisdiction, and

the ALJ effectively determined Pollock was not credible by granting summary

decision. Pollock also contends the ALJ erred by finding she was in possession

of the Suboxone found in the locked cabinet despite her claim she did not know

it was there. She urges us to exercise a de novo review of the record.

Pollock does not address any of the other violations, including that she

intentionally made false statements in connection with the SID investigation ,3

divulged confidential information to Blanton, and possessed contraband other

3 Pollock implies in her statement of facts she did not make false statements during the investigation. A passing reference to an issue is not sufficient to properly raise an issue on appeal. Miller v. Reis, 189 N.J. Super. 437, 441 (App. Div. 1983) (holding issue not briefed beyond conclusory statements need not be addressed). The contention is also without merit because Pollock admitted she misrepresented material facts during the SID investigation. A-4042-21 10 than the Suboxone in the prison. "An issue not briefed on appeal is deemed

waived." Sklodowsky v. Lushis, 417 N.J. Super. 648, 657 (App. Div. 2011).

Our review of a final agency decision is limited, and we "do not ordinarily

overturn such a decision 'in the absence of a showing that it was arbitrary,

capricious or unreasonable, or that it lacked fair support in the evidence.'" In re

Carter, 191 N.J. 474, 482 (2007) (citations omitted). Further, we may not

substitute our judgment for that of the agency's when "substantial credible

evidence supports [the] agency's conclusion . . . ." Greenwood v. State Police

Training Ctr., 127 N.J. 500, 513 (1992) (citations omitted). Instead, we "defer

to an agency's expertise and superior knowledge of a particular field." Ibid.

A summary decision "may be rendered if the papers and discovery which

have been filed, together with the affidavits, if any, show that there is no genuine

issue as to any material fact challenged and that the moving party is entitled to

prevail as a matter of law." N.J.A.C. 1:1-12.5(b). This standard is similar to

the rule governing a motion for summary judgment. See R. 4:46-2(c).

"Conduct unbecoming a public employee," N.J.A.C. 4A:2-2.3(a)(6), is an

"elastic" phrase encompassing "any conduct which adversely affects . . . morale

or efficiency . . . [or] which has a tendency to destroy public respect for [public]

employees and confidence in the operation of [public] services." Karins v. Atl.

A-4042-21 11 City, 152 N.J. 532, 554 (1998) (first alteration in original) (quoting In re Appeal

of Emmons, 63 N.J. 136, 140 (1960)). Conduct that "has the tendency to destroy

public respect for [public] employees and public confidence in the operation of"

the public entity is intolerable. Id. at 557.

Pollock's status as a corrections police officer subjects her to a higher

standard of conduct than ordinary public employees. In re Phillips, 117 N.J.

567, 576-77 (1990). This is because corrections police officers represent "law

and order to the citizenry and must present an image of personal integrity and

dependability in order to have the respect of the public." Carter, 191 N.J. at

485-86 (quoting Twp. of Moorestown v. Armstrong, 89 N.J. Super. 560, 566

(App. Div. 1965)).

It is undisputed Pollock engaged in an unduly familiar relationship with a

former inmate within weeks of his release, provided false information to the SID

investigators, possessed contraband in the prison, and provided sensitive

information regarding prison operations—all in violation of the applicable rules,

regulations, and procedures. These violations are plainly sufficient to support

the Commission's determination that Pollock engaged in conduct unbecoming a

public employee.

A-4042-21 12 Pollock's contention that the ALJ was required to conduct an evidentiary

hearing to determine whether she knowingly violated the DOC's staff/inmate

over familiarity policy is not persuasive. Pollock concedes she violated that

policy but asserts, without citation to any authority, a knowing violation is

qualitatively more serious than an unknowing violation. Even accepting that

contention as valid, the ALJ properly granted summary disposition. Po llock's

violation of the policy was properly considered in conjunction with the many

other serious violations at issue in this case and her prior disciplinary history.

Under the facts of this case, whether she violated the policy knowingly or

unknowingly was not material to the ultimate level of discipline imposed.

Pollock's claim that the ALJ improperly determined she violated the

policy prohibiting possession of CDS in the prison without a hearing is likewise

not convincing. Pollock was responsible for the locked cabinet where the

Suboxone was found and was in possession of the only keys to the cabinet at the

time of the search. Pollock's contention that she did not put it there is not

material. A CDS was discovered in an area under her control in violation of the

prohibition on contraband in the prison. There was no need for a hearing to

determine whether Pollock was the person who put it there.

A-4042-21 13 Pollock does not challenge the level of discipline imposed. Even if she

did, we would not disturb the Commission's determination. "A reviewing court

should alter a sanction imposed by an administrative agency only 'when

necessary to bring the agency's action into conformity with its delegated

authority.'" In re Herrmann, 192 N.J. 19, 28 (2007) (quoting In re Polk, 90 N.J.

550, 578 (1982)). In reviewing 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." Id. at 28-29

(quoting Polk, 90 N.J. at 578). The sanction of removal in this case does not

shock one's sense of fairness considering the numerous serious violations at

issue and Pollock's prior disciplinary history.

The Commission's decision is supported by sufficient, credible evidence

on the record as a whole. R. 2:11-3(e)(1)(D). To the extent we have not

otherwise addressed petitioner's arguments, they are without sufficient merit to

warrant discussion in a written opinion. R. 2:11-3(e)(1) (E).

Affirmed.

A-4042-21 14