On July 23, 2024, the saga of the kiss heard ‘round the New Jersey judiciary came to an end when the state Supreme Court held that the failure of former prison guard Brian Ambroise to report his kiss with a prisoner—identified as “J.O.”—was sufficient to support his termination from employment with the state Department of Corrections (DOC).

In a videotaped interview on October 7, 2016, J.O. informed staffers with the Special Investigation Division (SID) at the Edna Mahan Correctional Facility (EMCF) that she and Ambroise had a sexual relationship. J.O. stated that Ambroise kissed her and performed oral sex on her while the two of them were inside a storage closet. J.O. provided investigators with Q-tips that she had purportedly used to swab her mouth and vaginal area after the alleged incident. J.O. also informed the SID that Ambroise brought her contraband and passed notes between her and another prisoner.

Lt. Kristen Larsen and Det. Sgt. Aaron Lacey of the Hunterdon County Prosecutor’s Office, along with SID Senior Investigator Michael Kubik and Principal Investigator Jerome Scott, then conducted a videotaped interview of Ambroise. Prior to the interview, Ambroise waived his rights under Miranda v. Arizona, 384 U.S. 436 (1966), but requested the presence of a union representative. That request was denied. During the interview, Ambroise gave differing accounts of the alleged sexual encounter, at first denying the oral sex then admitting to it. However, he consistently admitted that he kissed J.O. and failed to report the kiss.

At the conclusion of the interview, Ambroise was arrested on charges of second-degree sexual assault and second-degree official misconduct. The following day, the SID served Ambroise with a preliminary notice of disciplinary action seeking his removal for conduct unbecoming a public employee and other violations of DOC policies.

As previously reported in PLN, a jury acquitted Ambroise of the charges in 2018. (See: PLN, Nov. 2020, p.34). But at a DOC disciplinary hearing, all the administrative charges against Ambroise were sustained, and he was sanctioned with termination from employment. Ambroise appealed the DOC’s decision.

At a June 2021 hearing before an Administrative Law Judge (ALJ), New Jersey State Police forensic scientist Katherine Meakim testified that, although Ambroise could not be excluded as a source of the Q-Tip DNA, it would match only one in 3,190 men. But Meakim had no knowledge of the chain of custody of the Q-Tips and admitted that Ambroise’s DNA could have been lifted from a water bottle or cup. Scott, from SID, testified that it was error to deny Ambroise’s request for a union representative at the interview. 

Ambroise then testified, walking back his admission to a sexual relationship with J.O.; it was only under intense questioning by investigators, he said, that he felt pressured to tell them what they wanted to hear in order to receive a lighter sentence. In his new version of events in the supply closet, J.O. ambushed him with a kiss, and he ordered her back to her cell. He did not report this, he added, because he handled the situation with a verbal reprimand. Ambroise also confirmed that J.O. asked him to smuggle contraband but did not report it because such requests were common at EMCF. Ambroise also conceded delivering a “harmless” message from J.O. to another prisoner.

The ALJ dismissed all but one charge—failure to report the kiss—finding J.O.’s recorded interview not credible. Ambroise’s recorded confession was found to be coerced and involuntary, and little weight was given to the DNA evidence because there was “no source of collection identified, or any testimony about chain of custody.” It wasn’t entirely clear to the ALJ that the kiss was an unusual incident but should have been reported anyway “out of an abundance of caution.” Ambroise’s sanction was modified to a 20-day suspension.

The DOC Fights Back

The DOC appealed to the state Civil Service Commission, which largely adopted the ALJ’s ruling. However, the Commission disagreed with the ALJ’s assessment of the kiss, saying it “c[ould not] fathom how any custodial staff in a correctional facility for women could reasonably interpret an unwarranted kiss as anything but an unusual incident that needed to be reported.” The Commission also reversed the ALJ’s dismissal of an “undue familiarity” charge. Based upon Ambroise’s own admission that he passed a message between J.O. and another prisoner, the Commission concluded that his actions demonstrated that he was willing to violate DOC policy on their behalf—establishing that he was “unduly familiar” with the prisoners. His sanction was again modified to a six-month suspension with back pay, benefits, and seniority.

The DOC turned next to the Appellate Division, but it affirmed the Commission’s decision. The state Supreme Court granted the DOC’s petition and certified the case for review, conditioning reversal of a state agency on a finding that its decision was “arbitrary, capricious, or unreasonable or … not supported by substantial credible evidence in the record as a whole,” as held in Henry v. Rahway State Prison, 81 N.J. 571 (1980). 

Under this standard, the high Court said it must examine: “(1) whether the agency’s action violates express or implied legislative policies, that is, did the agency follow the law; (2) whether the record contains substantial evidence to support the findings on which the agency based its action; and (3) whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors,” as laid out in Mazza v. Bd. of Trs., PFRS, 143 N.J. 22 (1995).

Drawing on Bowden v. Bayside State Prison, 268 N.J. Super. 301 (N.J. App. 1993)—which upheld firing a DOC guard for gambling with prisoners—the Supreme Court said that Ambroise’s firing was based on the “unique expertise” that the DOC brought to bear in “conclud[ing] that Ambroise can no longer be trusted to work in a prison facility.” The agency’s “assessment should have been afforded significant weight,” the Court continued, “because the gravity of Ambroise’s conduct cannot be understated.” Given that he “tarnishe[d] the institution by knowingly compromising the safety and security of himself, his fellow officers, and the inmates,” a six-month sanction was “disproportionate to the serious and highly concerning offenses found in this record, and therefore, it is arbitrary, capricious, and unreasonable.” Accordingly, judgment of the Appellate Division was reversed, and the DOC’s termination sanction was reinstated. See: In the Matter of Ambroise, 258 N.J. 180 (2024).  

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