Lisa Schweizer, CSC Docket No. 2016-2055

BackgroundThe appeal of Lisa Schweizer, Keyboarding Clerk 1, Middle Township School District, of her removal effective November 19, 2015, on charges, was heard by Administrative Law Judge John S. Kennedy (ALJ), who rendered his initial decision on September 23, 2019. Exceptions to the initial decision were filed on behalf of the appointing authority and a reply to exceptions was filed on behalf of the appellant.

AnalysisHaving considered the record and the ALJ's initial decision, and having made an independent evaluation of the record, including a review of the exceptions and reply, the Civil Service Commission (Commission), at its meeting on December 18, 2019, rejected the ALJ’s recommendation to reverse the removal. Rather, the Commission imposed a 20 working day suspension.

DISCUSSION

The pertinent facts of this matter indicate that the appellant worked in the high school guidance department where her duties included various clerical duties. Based on an incident that occurred outside of work on February 14, 2015, she was arrested and charged with obstruction of justice, a crime of the fourth degree, on February 23, 2015. On February 26, 2015 the appellant was indefinitely suspended pending the disposition of the criminal charges. Rather than await the ultimate disposition of the criminal charges, the appointing authority instead subsequently imposed and sustained the administrative charge of “other sufficient cause” and removed the appellant from employment on November 19, 2015. The allegation behind the criminal charges was that the appellant obstructed justice when she interfered with a police officer who was in the course of arresting the appellant’s husband for DUI in front of their home. In June 2016, the appellant’s criminal trial resulted in a hung jury and the appellant subsequently agreed to enter a pre-trial intervention program (PTI) rather than participate in another trial. On February 15, 2017, her PTI was terminated and the criminal charges were dismissed.

Administrative Law JudgeIn his initial decision, the ALJ found that the criminal charges against the appellant “stemmed from an incident that occurred after school hours and not on school property or while conducting any school business” and was “not related in any way to her job as a Keyboarding Clerk 1.” Additionally, the ALJ stated:

AnalysisIn this case, it is true that the charges against appellant, if proven, were egregious, particularly in (sic) given that she was a school employee. However, appellant was never convicted of the charges. The matter was tried to a conclusion which resulted in a hung jury. To impute the egregiousness of a crime to an individual not convicted of that crime circumvents the criminal process. To de so would require a finding of fact that appellant actually committed the crime for which she was charged. There has been no evidence provided in the case before me upon which I can rely to come to that conclusion.

Administrative Law JudgeFor the foregoing reasons I CONCLUDE that the Appointing

AnalysisAuthority has not met its burden of proof that appellant violated

N.J.A.C. 4A:2-2.3(a)(12), “Other Sufficient Cause.” Her conduct of being charged with Obstruction of Justice, without having been convicted of that or any other charge did not violate the implicit standard of good behavior....

Based on these conclusions, the ALJ recommended reversing the removal. As to back pay, the ALJ stated that since her pending criminal charges were not resolved until February 15, 2017, she was entitled to back pay from that date forward.

In its exceptions, the appointing authority argues that it proved by a preponderance of the evidence that the appellant’s underlying conduct in the incident clearly violated the implicit standard of good behavior governing public employees. It further argues that the ALJ erred in finding that the appellant could not be found guilty of “other sufficient cause” since she was not convicted of the criminal charges. In this regard, it contends that the appellant ultimately entered a PTI program and thus, there was not an ultimate finding that she was not guilty of the criminal charges. Finally, it argues that the appellant had signed a one-year contract that was to expire on June 15, 2015.

In reply, the appellant argues that the ALJ’s conclusions regarding the charges were correct as the ALJ found no evidence that she committed a crime. She also argues that her testimony regarding the incident that she did not actually touch the police officer was found to be credible by the ALJ and that his ultimate conclusion was that there was a lack of evidence that she engaged in the underlying behavior. Finally, she contends that she is entitled to back pay from the inception of her indefinite suspension since she should have never been initially suspended pursuant to N.d.A.C. 4A:2-2.5(a)2 as the criminal charges were not related in any way to her employment.

Upon its de novo review of the entire record, the Commission cannot agree with the AL.J’s determination to dismiss the charges and reverse the removal. The Commission finds that the ALJ’s premise that the appellant should not be found guilty of the administrative charges since she was not found guilty of the criminal charges is in error. Similarly, the Commission is not persuaded by the appellant’s argument in her reply to the exceptions that the ALJ dismissed the charges since he found her testimony credible about the incident. Initially, there is nothing in the ALJ’s initial decision indicating that he found the appellant’s testimony credible. Regardless, the ultimate disposition of the criminal charges in this case is determinative. In this regard, the appellant was never found not guilty of the criminal charges. Rather, she ultimately entered a PTI program to dispose of the charges. The Commission is mindful that while the participation in a PTI program is neither a conviction nor an acquittal, it has not been construed to constitute a favorable termination of criminal charges. See In the Maiter of Clifton Gauthier, Rockaway Township, ___. N.J. Super. ___ (App. Div. 2019); N.J.S.A. 2C:43-13(d). See also, Grill and Walsh v. City of Newark Police Department, Docket No. A-6224- 98T3 (App. Div. January 30, 2001). Thus, it would be improper to impute innocence as to the criminal charges to such a disposition. Regardless, in this case, the appellant was removed on administrative charges based on the conduct underlying the criminal charges. As the appellant entered PTI as to the criminal charges underlying the administrative charges, she now cannot expect the Commission to find that she did not engage in any of the underlying conduct. Moreover, and contrary to her assertions, the ALJ did not find in the initial decision that she did not engage in any inappropriate conduct, only rather, that she did not engage in any criminal conduct. Accordingly, the Commission finds that the appointing authority had sustained its burden of proof that the appellant engaged in conduct sufficient to uphold the charge of “other sufficient cause” underlying the disciplinary action.

Regarding the penalty, as it is with the charges, the Commission’s review of the penalty is de novo. In addition to its consideration of the seriousness of the underlying incident in determining the proper penalty, the Commission also utilizes, when appropriate, the concept of progressive discipline. West New York v. Bock, 38 N.-J. 500 (1962). In assessing the penalty in relation to the employee's conduct, it is important to emphasize that the nature of the offense must be balanced against mitigating circumstances, including any prior disciplinary history. However, it is well established that where the underlying conduct is of an egregious nature, the imposition of a penalty up to and including removal is appropriate, regardless of an individual’s disciplinary history. See Henry v. Rahway State Prison, 81 N.d. 571 (1980). It is settled that the theory of progressive discipline is not a “fixed and immutable rule to be followed without question.” Rather, it is recognized that some disciplinary infractions are so serious that removal is appropriate notwithstanding a largely unblemished prior record. See Carter v. Bordentown, 191 N.J. 474 (2007). In this matter, the Commission finds that the appellant’s misconduct was very serious, but does not warrant removal from employment for the following reasons. While the appellant was a short-term employee at the time of the incident, the misconduct occurred outside of her employment and the appellant completed the PTI program successfully which served to get the criminal charges dismissed. Additionally, the appellant had no prior disciplinary history. Further, the appellant, while working in a school setting, is not a law enforcement or public safety employee, and as such, is not subject to the higher standard imposed on those public employees. Given these considerations, the Commission finds that the proper penalty is a 20 working day suspension. This reduction in penalty should not be construed in any way as the Commission condoning the appellant’s behavior. Moreover, the 20 working day suspension should serve as a warning to the appellant that such misconduct will not be tolerated and any future misconduct may lead to a more severe penalty up to and including removal.

Since the removal has been modified to a 20 working day suspension, the appellant is entitled to back pay, seniority and benefits. However, as found by the ALJ, the award of back pay can begin no earlier than February 15, 2017, when the appellant completed PTI pursuant to N.J.A.C. 4A:2-2.10(c)1. See also, Gauthier, supra. In this regard, the Commission rejects the appellant’s argument that she should have never been indefinitely suspended since the original fourth degree criminal charges were not related to her employment. In this regard, the appellant never challenged her initial indefinite suspension from employment to the Commission. As such, the Commission will not entertain such an argument at this juncture as the timeframe to challenge the initial indefinite suspension has long since passed. Moreover, it is clear that the appellant could have been initially immediately suspended under N.d.A.C. 4A:2-2.5(a)1 since keeping an employee on the job pending serious criminal charges clearly could affect the safety, health, order or effective direction of public services. Accordingly, the Commission grants back pay pursuant to the provisions of N.J.A.C. 4A:2-2.10 from February 15, 2017 until the date of actual reinstatement.!

! The Commission notes that the 20 working day suspension should be recorded as beginning on the appellant's first day of separation, November 19, 2015. See N.J.A.C. 4A:2-2.10(c). It further notes that it rejects the appointing authority's argument regarding the appellant’s contract. As a permanent career service employee, the appellant is not subject to a provision in a contract limiting her term of office. In this regard, such an employee has a property interest in his or her position and can only be involuntarily removed for disciplinary reasons or via a layoff.

However, the appellant is not entitled to counsel fees. Pursuant to N.J.A.C. 4A:2-2.12(a), an award of counsel fees is appropriate only where an employee has prevailed on all or substantially all of the primary issues in an appeal of a major disciplinary action. The primary issue in any disciplinary appeal is the merits of the charges, not whether the penalty imposed was appropriate. See Johnny Walcott v. City of Plainfield, 282 N.J. Super. 121, 128 (App. Div. 1995); James L. Smith v. Department of Personnel, Docket No. A-1489-02T2 (App. Div. Mar. 18, 2004); In the Matter of Robert Dean (MSB, decided January 12, 1993); In the Matter of Ralph Cozzino (MSB, decided September 21, 1989). In this case, the Commission sustained the charges and only modified the penalty. Thus, the appellant has not prevailed on all or substantially all of the primary issues of the appeal. Consequently, as the appellant has failed to meet the standard set forth at N.J.A.C. 4A:2-2,12(a), counsel fees must be denied.

This decision resolves the merits of the dispute between the parties concerning the disciplinary charges and the penalty imposed by the appointing authority. In light of the Appellate Division’s decision in Dolores Phillips v. Department of Corrections, Docket No. A-5581-01T2F (App. Div. February 26, 2003), the Commission’s decision will not become final until any outstanding issues concerning back pay are finally resolved. However, under no circumstances should the appellant’s reinstatement be delayed by any dispute as to back pay.

ORDER

The Commission rejects the Administrative Law Judge’s recommendation to reverse the removal and instead imposes a 20 working day suspension. Additionally, the Commission orders that the appellant granted back pay, benefits and seniority beginning on February 15, 2017. The amount of back pay awarded is to be reduced and mitigated as provided for in N.J.A.C. 4A:2-2.10. Proof of income earned and an affidavit of mitigation shall be submitted by or on behalf of the appellant to the appointing authority within 30 days of issuance of this decision. Pursuant to N.J.A.C. 4A:2-2.10, the parties shall make a good faith effort to resolve any dispute as to the amount of back pay. However, under no circumstances should the appellant’s reinstatement be delayed by any dispute as to back pay.

Counsel fees are denied pursuant to N.J.A.C. 4A:2-2,12,

The parties must inform the Commission, in writing, if there is any dispute as to back pay within 60 days of issuance of this decision. In the absence of such notice, the Commission will assume that all outstanding issues have been amicably resolved by the parties and this decision shall become a final administrative determination pursuant to R. 2:2-3(a)(2). After such time, any further review of this matter should be pursued in the Appellate Division.