Robert Melendez, CSC Docket No. 2016-3473

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BackgroundThe appeal of Robert Melendez, a Principal Investigator, Parole and Secured Facilities, with New Jersey State Prison, Department of Corrections, of his 30- working day suspension and demotion, on charges, was heard by Administrative Law Judge Elia A. Pelios (ALJ), who rendered his initial decision on May 11, 2021. Exceptions were filed on behalf of the appellant, and a reply to exceptions was filed on behalf of the appointing authority.

AnalysisHaving considered the record and the ALJ's initial decision, and having made an independent evaluation of the record, the Civil Service Commission (Commission), at its meeting on June 2, 2021, accepted and adopted the Findings of Fact as contained in the attached ALJ’s initial decision. The Commission adopted the recommendation to uphold the 30-working day suspension but did not adopt the recommendation to uphold the demotion to Senior Correctional Police Officer. Rather, the Commission modified the demotion to Senior Investigator, Parole and Secured Facilities.

DISCUSSION

The appellant received a 30-working day suspension and was demoted to the title of Senior Correctional Police Officer on charges of insubordination, conduct unbecoming a public employee, other sufficient cause, and violation of a rule, regulation, policy, procedure, order or administrative decision. Specifically, the appointing authority alleged that the appellant failed to follow an order to close an investigation and failed to follow procedures in handling confidential information.

Upon the appellant’s appeal, the matter was transmitted to the Office of Administrative Law (OAL) for a hearing as a contested case.

Administrative Law JudgeIn his initial decision, the ALJ set forth that on J anuary 5, 2016, the Director of Operations for the Department of Corrections was notified by an individual outside her chain of command of an issue in the inventory at the New Jersey State Prison involving needles and medicine. She attempted to bring the matter to her supervisors, who are the Assistant Commissioner and the Commissioner, but was unable to reach either. Therefore, the Director of Operations made the decision to order searches of contract medical staff leaving the premises at the end of their shift. The appellant became aware that searches were being conducted and he began an investigation into the matter. The appellant spoke with the Chief Investigator on January 6, 2016 and January 8, 2016 who advised him to end the investigation. The appellant was uncomfortable with this direction and the Chief Investigator offered to send him the directive in writing. The Chief Investigator sent the appellant the directive to end the investigation on January 11, 2016, and on January 14, 2016, the appellant closed the investigation. On January 27, 2016 the appellant sent an email to the Chief Investigator asking him if he wanted a copy of his report. This raised concerns with the Chief Investigator that the appellant continued to work on the investigation after he ordered it closed.

The ALJ concluded that all of the witnesses agreed that the Chief Investigator verbally told the appellant to close the investigation on January 8, 2016 and in writing on January 11, 2016, and that there was no dispute that he closed it on January 14, 2016. While the specifications against the appellant indicated that he was told by the Chief Investigator to cease investigating the matter on January 5, 2016, the appellant asserted that they did not speak on that date. The Chief Investigator credibly testified that the January 5, 2016 date was a typographical error. Therefore, the ALJ found the first time the Chief Investigator spoke to the appellant about the matter was January 6, 2016. The ALJ also found that the appellant believed he had been told to stop the investigation on January 6, 2016. This finding was based on the appellant’s recording of his phone conversation with the Chief Investigator on January 8, 2016, his concern with protecting himself in the event the chief retired, and his own description during his testimony of the extreme reaction after speaking with the Chief Investigator on January 6, 2016. The ALJ rejected the appellant’s contention that the order of the Chief Investigator was imprecise or otherwise unclear as unpersuasive as his subsequent behavior belied that assertion. As such, the interviews the appellant conducted on January 7, 2016 and January 8, 2016 occurred after he was ordered to cease the investigation on January 6, 2016. Accordingly, the ALJ sustained all of the charges against the appellant. While the appellant had an insignificant disciplinary history, the ALJ determined that the appellant's demonstrated lack of ability to appreciate the appropriate exercise of discretion in handling sensitive matters present in the Special Investigations Division (SID) and the severity of the sustained charges warranted the suspension and demotion.

AnalysisIn his exceptions, the appellant argues that the appointing authority failed to prove the specifications on the charging documents and claims that the Chief Investigator concocted that the January 5, 2016 date was a typographical error. He also contends that the mistakes and misrepresentations in the Chief Investigator’s testimony demonstrates that he lacked credibility. The appellant maintains that the ALJ did not analyze his credibility and that the weight of the totality of evidence demonstrates that any order to stop the investigation into lawful searches at that early stage was an unlawful order. Finally, the appellant states that the proposed penalty is excessive and that removal from SID is completely excessive when reviewing the totality of the circumstances.

In response, the appointing authority indicatets that the ALJ’s credibility determinations are fully supported in the record and that the appellant’s exceptions are without merit.

Upon its de novo review of the record, the Commission agrees with the Findings of Fact of the ALJ and concludes that the appointing authority has met its burden of proof in this matter. The Commission also agrees that the 30-working day suspension was proper. However, for the reasons set forth below, the Commission determines that the appellant’s demotion to Senior Correctional Police Officer should be modified to a demotion to Senior Investigator, Parole and Secured Facilities.

The Commission acknowledges that the ALJ, who has the benefit of hearing and seeing the witnesses, is generally in a better position to determine the credibility and veracity of the witnesses. See Matter of J.W.D., 149 N.J. 108 (1997). “[T]rial courts’ credibility findings . . . are often influenced by matters such as observations of the character and demeanor of the witnesses and common human experience that are not transmitted by the record.” See In re Taylor, 158 N.J. 644 (1999) (quoting State v. Locurto, 157 N.J. 463, 474 (1999)). Additionally, such credibility findings need not be explicitly enunciated if the record as a whole makes the findings clear. Jd. at 659 (citing Locurto, supra). The Commission appropriately gives due deference to such determinations. However, in its de novo review of the record, the Commission has the authority to reverse or modify an ALJ’s decision if it is not supported by the credible evidence or was otherwise arbitrary. See N.J.S.A. 52:14B-10(c); Cavalieri v. Public Employees Retirement System, 368 N.J. Super. 527 (App. Div. 2004).

Administrative Law JudgeIn this case, the ALJ specifically indicated that the Chief Investigator stated on direct that he first spoke with the appellant on the matter a day or two after the searches occurred. He acknowledged during cross examination that identifying January 5, 2016 as the date he ordered the appellant to cease the investigation was a typographical error. In this regard, the ALJ noted that the January 5, 2016 date originated in an email to a SID investigator on January 27, 2016 and the misstatement was carried forward in reliance on that email in the charging documents. Additionally, the ALJ indicated that the appellant’s use of the phrase “I determined the investigation would continue,” his concern with protecting himself, his decision to record the January 8, 2016 phone conversation and he appellant's own description of his reaction after speaking with the Chief Investigator evidenced that the appellant believed he was told to stop the investigation on J anuary 6, 2016. However, the appellant continued the investigation after being given the order to cease on January 6, 2016. Therefore, the Commission finds that the appellant has not presented any evidence to disturb the ALJ’s credibility determinations or his Findings of Fact. Accordingly, the Commission upholds all of the charges against the appellant.

AnalysisIn determining the proper penalty, the Commission’s review is also 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.J. 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 case, the appellant’s conduct in this situation demonstrates a failure of the exercise of discretion in handling of a sensitive matter. However, it cannot be ignored that the Chief Investigator testified that the appeliant is a good investigator. Additionally, the SID investigator who looked into this matter testified that the appellant has worked with him on cases and found him to be professional and never knew him to be untruthful regarding the investigations he conducted. Similarly, the Deputy Chief Investigator also testified hat he never knew the appellant to be untruthful and that he was a good investigator. Further, the appellant has an unremarkable disciplinary history. While the Commission is cognizant of the seriousness of the sustained charges, these factors certainly bear on the severity of the penalty. Accordingly, the foregoing circumstances provide a sufficient basis to modify the appellant’s demotion and place him in the title of Senior Investigator, Parole and Secured Facilities and to sustain the 30-working day suspension. See N.J.S.A. 11A:2-19 and NwJ.A.C. 4A:2-2.9(d). This penalty should impress upon the appellant that further infractions will not be tolerated and could lead to more severe disciplinary penalties, up to and including removal.

Since the demotion has been modified, the appellant is entitled to differential back pay, benefits and seniority pursuant to N.J.A.C. 4A:2-2.10 from the date of his demotion to Senior Correctional Police Officer to the date he is reinstated to the title of Senior Investigator, Parole and Secured Facilities. 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. Depariment 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 upheld the charges against the appellant, imposed major discipline, and ordered a demotion. Therefore, 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. However, in light of the Superior Court of New Jersey, Appellate Division’s decision, Dolores Phillips v. Department of Corrections, Docket No. A- 5581-01T2F (App. Div. Feb. 26, 2003), the Commission’s decision will not become final until any outstanding issues concerning back pay are finally resolved. In the interim, as the court states in Phillips, supra, if it has not already done so, upon receipt of this decision, the appointing authority shall immediately reinstate the appellant to Senior Investigator, Parole and Secured Facilities position.

ORDER

The Commission finds that the action of the appointing authority in suspending the appellant for 30-working days was justified but the demotion to Senior Correctional Police Officer was not justified. The Commission therefore modifies the demotion to the title of Senior Investigator, Parole and Secured Facilities. The Commission further orders that the appellant be granted differential back pay, benefits and seniority from the date of his demotion to Senior Correctional Police Officer through the day of his appointment to the title of Senior Investigator, Parole and Secured Facilities. Pursuant to NJ/.A.C. 44:2-2.10, 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 appointment to the title of Senior Investigator, Parole and Secured Facilities be delayed pending resolution of any potential back pay dispute.

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 Superior Court of New Jersey, Appellate Division