Friday, June 19, 2015

The "IT Worker," the Emails and the Mayor

This post examines an opinion the Superior Court of New Jersey – Appellate Division in a case    involving “disciplinary charges” brought against a City of Hoboken “IT Worker”: Jonathan Cummins.  In re Cummins, 2015 WL 1540730 (2015). The court begins its opinion by explaining that the appellant,
City of Hoboken (City) appeals from a September 6, 2013 final administrative decision of the Civil Service Commission (Commission). The Commission adopted the initial decision of an Administrative Law Judge (ALJ) who dismissed disciplinary charges filed by the City against Jonathan Cummins and reinstated Cummins's employment with the City.

In re Cummins, supra.  As Wikipedia explains, an “administrative law judge (ALJ) in the United States is a judge and trier of fact who both presides over trials and adjudicates the claims or disputes . . . involving administrative law.”
The Superior Court then goes on to explain how, and why, this case arose:
[I]n May 2011, City officials suspected that the City's computer network and email system had been breached. The City's concern arose from a large volume of Open Public Records Act (OPRA) requests it was receiving for confidential emails between City officials including emails sent and received by Mayor Dawn Zimmer.

The City contacted Edward Reiss to conduct an investigation into the suspected data breach. Reiss is an information security engineer at Tag Solutions, a computer security and forensics firm. City officials suspected that Patrick Ricciardi, who headed the City's two-member information technology (IT) office, might be responsible for the breach.

The Tag Solutions consultants conducted their investigation at the City's IT office on May 16, 2011. The investigation revealed that a hard drive in the City's IT department contained archives of emails sent and received by several City officials, including the Mayor. When Arthur Liston, the City's business administrator, and Mark Tabakin, the City's corporation counsel, reviewed the emails, they noted that the archived emails had been sent to unauthorized third parties. The City then contacted the Federal Bureau of Investigation (FBI) and other law enforcement agencies regarding the issue.
In re Cummins, supra.  The news stories you can find here and here provide more information about the facts in the case and how, and why, it came before this court.
The court then explains that the
following day, Tabakin and Liston decided to question Cummins, the only other employee in the IT Department, and his supervisor, Ricciardi, in order to gather more information. According to Tabakin and Liston, during this questioning Cummins confessed to them that he was responsible for archiving the emails and had been forwarding them to unauthorized third parties, including City Fire Chief Richard Blohm and former Public Safety Director Angel Alicia.

At some point during the questioning, Cummins requested his union representative, Diane Nieves–Carreras. Nieves arrived and upon learning that the matter might be criminal in nature, requested that Merrick Limsky, the union attorney, also be present.  Limsky was contacted and went to City Hall. Neither Limsky nor Nieves heard Cummins' purported confession. Cummins, on his part, denied that he had confessed to sending confidential emails to unauthorized third parties. Following the questioning, Cummins was told to leave City offices.

On May 17, 2011, the City issued a Preliminary Notice of Disciplinary Action (PNDA), charging Cummins with several violations of [New Jersey Administrative Code] 4A:2–2.3(a), including conduct unbecoming a public employee, misuse of public property, and `other sufficient cause.’ The PNDA stated that Cummins was suspended without pay as of that date.
In re Cummins, supra.  
At some point after all this happened, Cummins was interviewed by the
FBI with regard to the compromise of the City's email and computer network. Cummins maintains that he did not confess to City officials or the FBI that he ever disseminated confidential City emails to unauthorized third parties. On November 7, 2011, a criminal complaint was filed against Patrick Ricciardi in the United States District Court for the District of New Jersey.

Attached to the complaint was a probable cause statement sworn to by FBI agent Christian Schorle containing a footnote that read:

`On or about May 17, 2011, another City employee, Jonathan Cummins, confessed to a Mayor's [e]mployee that he had used the Archive File to download Intercepted E–Mails from the Mayor's e-mail account to the Archive File and then to forward those Intercepted E–Mails to several external email accounts. On or about May 25, 2011, however, defendant [Ricciardi] admitted that he, in fact, was the one who had created the Archive File and forwarded the Intercepted E–Mails, and that Cummins had falsely confessed because of the friendship shared between Cummins and [Ricciardi]. Upon further questioning, Cummins confirmed that he had confessed falsely.’
In re Cummins, supra.  
The opinion goes on to explain that,
[b]ased on the filing of the criminal complaint against Ricciardi, the City issued Cummins a second PNDA on June 20, 2012, charging that `[a]s a result of Cummins['s] false confession and deception’ he committed misconduct pursuant to New Jersey Administrative Code] 4A:2–2.3(a), including (1) conduct unbecoming a public employee; (2) insubordination; and (3) neglect of duty. On July 5, the City issued a Final Notice of Disciplinary Action (FNDA) terminating Cummins's employment.

Cummins appealed his termination and the matter was transferred to the Office of Administrative Law (OAL) as a contested case. The ALJ conducted a three-day hearing in October 2012. The ALJ heard testimony from Liston, Tabakin, Reiss, Nieves, Limsky, and Liston. The federal criminal complaint against Ricciardi, the disciplinary notices, and a confidential report prepared by Tag Solutions were entered in evidence.

In a comprehensive thirty-one page written decision, ALJ Marose made numerous detailed credibility determinations and rendered extensive findings of fact and conclusions of law. The ALJ found that the City `presented no actual evidence that Cummins was responsible for the email leaks.’ She further found that the City failed to prove Cummins either confessed to any wrongdoing, or falsely confessed in an effort to thwart the City's investigation. The ALJ determined that the testimony of Liston and Tabakin `lacked credibility,’ while Cummins's version of events was, by contrast, `plausible.’
In re Cummins, supra.  
The opinion also notes that the ALJ
specifically addressed, and discounted, the City's reliance on the federal complaint against Ricciardi. She found that:

`Although the footnote contained in the affidavit with the criminal complaint against Ricciardi claims that Cummins had falsely confessed to City employees because of his friendship with Ricciardi, Cummins denied ever stating that to the affiant. The basis relied upon by that affiant remains unclear, but the City failed to present that affiant as a witness to refute Cummins's testimony that he never told anyone that he had falsely confessed.’
In re Cummins, supra.  
The ALJ also found that the
City failed to prove that Cummins had engaged in the conduct that resulted in his termination. Consequently, the ALJ ordered that the disciplinary charges be dismissed, and that Cummins be reinstated to his position with back pay and other benefits.
In re Cummins, supra.  
The next thing that happened was that, on September 4, 2013, the Civil Service Commission held a meeting
during which two members voted to adopt the ALJ's initial decision in full, while the remaining two members voted to uphold Cummins's termination. The tie vote resulted in the adoption of the ALJ's recommended decision as the Commission's final decision, pursuant to New Jersey Statutes Annotated 52:14B–10(c). The City's appeal followed.
In re Cummins, supra.  
On appeal, the City argued that the ALJ’s decision was
not supported by adequate, substantial, and credible evidence and that the ALJ's credibility determinations were erroneous. The City also contends that proper weight was not afforded the federal criminal complaint that established Cummins had falsely confessed to his involvement in the security breach in an attempt to deceive the City and thwart its investigation.
In re Cummins, supra.  
The Superior Court -- Appellate Division then explained that its “scope of review” of
an administrative agency's final determination is limited. In re Carter, 191 N.J. 474, 482 (New Jersey Supreme Court 2007). We accord to the agency's exercise of its statutorily-delegated responsibilities a `strong presumption of reasonableness.’ City of Newark v. Natural Res. Council, 82 N.J. 530, 539 (New Jersey Supreme Court 1980). . . . The burden of showing the agency's action was arbitrary, unreasonable, or capricious rests upon the appellant. See Barone v. Dep't of Human Servs., Div. of Med. Assistance & Health Servs., 210 N.J.Super. 276 (New Jersey Superior Court Appellate Division 1986).
In re Cummins, supra.   It also noted that an appellate court
`should not disturb an administrative agency's determinations or findings unless there is a clear showing that (1) the agency did not follow the law; (2) the decision was arbitrary, capricious, or unreasonable; or (3) the decision was not supported by substantial evidence.’ In re Application of Virtua–West Jersey Hosp. Voorhees for a Certificate of Need, 194 N.J. 413 (New Jersey Supreme Court 2008). . . . The court `may not vacate an agency determination because of doubts as to its wisdom or because the record may support more than one result,’ but is `obliged to give due deference to the view of those charged with the responsibility of implementing legislative programs.’ In re N.J. Pinelands Comm'n Resolution PC4–00–89, 356 N.J.Super. 363 (New Jersey Superior Court – Appellate Division 1997). . . .  
In re Cummins, supra.   
The court then addressed the issue before it, explaining that
[a]pplying these standards, and based on our review of the record, we are satisfied that the ALJ's findings, which the Commission adopted, are supported by substantial credible evidence. The ALJ made numerous credibility assessments, and explained in detail the reasons why she accepted or rejected the testimony of the various witnesses. According deference, as we must, to the ALJ's credibility determinations, we conclude that the City's arguments are without sufficient merit to warrant extended discussion in a written opinion. . . . We add the following comments.

ALJ Marose declined to accept the accounts of Tabakin and Liston with respect to Cummins' alleged confession. The ALJ thoughtfully noted several inconsistencies in their descriptions of Cummins's questioning, including the divergence in their respective testimony as to whether Cummins forwarded the emails to Blohm and Alicia, or just to Alicia.

They also differed with respect to when Cummins purportedly confessed, with Liston testifying that the confession occurred during the middle of the questioning session, while Tabakin testified that the confession occurred at the end. These inconsistencies are duly supported by the record.
In re Cummins, supra.   
And the court pointed out that the ALJ also found that,
[a]fter hearing all four witnesses -- Liston, Tabakin, Cummins, and Nieves, and [assessing] their credibility, I do not FIND Liston and Tabakin's testimony regarding when Cummins requested union representation to `ring’ true. . . .

After assessing all of the witness's [sic] testimony, in light of their internal consistency and the manner in which it `hangs together’ with other evidence, I FIND that Liston and Tabakin intended to question Cummins themselves, without his union representative, and that they did not respond to Cummins's initial requests to provide him with union representation. Instead they delayed calling Nieves until Cummins stopped answering their questions.
In re Cummins, supra.   
In her opinion, the ALJ noted that Nieves
had no stake in the proceedings, [and] found Nieves's testimony most credible, and that it supported Cummins' testimony as to the number of times that he requested representation. Nieves described Tabakin's tone and volume with her as inappropriate, and that Tabakin `raised his voice to a yelling pitch.’
In re Cummins, supra.   
The ALJ therefore concluded that
`[s]uch described behavior on the part of Tabakin supports Cummins's testimony that Tabakin's demeanor caused him to ask for union representation three times. It also supports the assertion that Tabakin did not initially comply with his request.’

`It further indicates the kind of questioning of [an] employee that should have only taken place in the presence of union or legal representation. I FIND that Cummins asked for union representation and Nieves requested [ ] the union attorney several times before Liston and Tabakin stopped speaking and/or questioning Cummins and/or Nieves.’
In re Cummins, supra.   
The Superior Court – Appellate Division then explained that, while
noting that Cummins's testimony might be considered biased due to his self-interest in the outcome of the proceedings, the ALJ determined that his assertion that he did not disseminate confidential City emails was plausible. In contrast, the ALJ noted that `[b]oth Liston and Tabakin indicated a lack of expertise regarding computers and how access to the relevant emails could be obtained.’ The City's challenge to the ALJ's conclusions also fails to address the testimony of Reiss, the Tags Solutions consultant, who was unable to determine whether Cummins was in custody of emails that he lacked authorization to view.

We similarly reject the City's contention that the proofs established by a preponderance of the evidence that Cummins falsely confessed in an effort to thwart the City's investigation. The record contains conflicting and scant support that Cummins confessed at all, and the evidence to establish that he confessed falsely is even more meager.

The City's allegation is premised on the single footnote in the FBI agent's statement made in support of the charges against Ricciardi. The ALJ determined that the `basis relied upon by that affiant remains unclear.’ Also, as the ALJ reasoned, the City failed to call the FBI agent as a witness to refute Cummins' clear testimony that he had never falsely confessed.
In re Cummins, supra.   
It therefore held that
we are satisfied that there is sufficient evidence in the record to support the ALJ's findings and conclusions, which the Commission, in turn, adopted. Consequently, there is no basis to intervene.

In re Cummins, supra.  So, as this news story essentially says, Cummins won.

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