Monique Smith, CSC Docket No. 2018-1878

ee

BackgroundThe appeal of Monique Smith, Police Captain, Irvington Township, Department of Public Safety, six-month suspension, on charges, was heard on remand from the Appellate Division by Administrative Law Judge Gail M. Cookson (ALJ), who rendered her initial decision on January 6, 2021. Exceptions were filed on behalf of the appellant and on behalf of the appointing authority.

AnalysisHaving considered the record and the exceptions, as well as the ALJ’s initial decision modifying the six-month suspension to a 15 working day suspension, and having made an independent evaluation of the record, the Civil Service Commission (Commission), at its meeting on February 3, 2021, accepted and adopted the Findings of Fact and Conclusions as contained in the attached ALJ’s initial decision. However, the Commission did not adopt the recommendation to modify the six-month suspension to a 15 working day suspension. Rather, the Commission imposed a 60 working day suspension.

DISCUSSION

The history and facts of this matter need not be recited as they are thoroughly laid out in the Commission's previous decision In the Matter of Monique Smith (CSC, decided March 6, 2019), the remanded determination from the Appellate Division In the Matter of Monique Smith, Irvington Township, Department of Public Safety, A-2987-18T2 (App. Div., October 2, 2020) and the ALJ’s current initial decision. In the current initial decision, the ALJ recommended upholding one of the charges against the appellant and dismissing the remainder of the charges. Based on this determination, the ALJ recommended reducing the six- month suspension to a 15 working day suspension.! Upon its independent review of this matter, the Commission agrees with the current ALJ’s determination regarding the charges but disagrees that the appropriate penalty is a 15 working day suspension. Rather, the Commission finds that a 60 working day suspension is the appropriate penalty.

In her exceptions, the appellant argues that the remaining charge upheld by the ALJ should be dismissed as there was no evidence, other than a newspaper article, presented that her actions were inappropriate. Additionally, the appellant argues that she is entitled to counsel fees in this matter as she prevailed on all or substantially all of the issues in this matter.

In its exceptions, the appointing authority argues that the ALJ erred in dismissing the other charges as she inappropriately failed to admit certain evidence as exceptions to hearsay. Further, it argues that the appellant is not entitled to counsel fees.

The Commission rejects the appellant’s contention regarding the charges. It is clear that the credible evidence in the record supports the ALJ’s upholding of that charge. Indeed, the appellant’s actions in this matter were well documented. Moreover, the Commission rejects the appointing authority’s contentions regarding the dismissed charges. In this regard, the Commission concurs with the ALJ’s determinations regarding the inadmissibility of certain reports as hearsay. Moreover, the Commission notes that the appointing authority had an opportunity to cure this potential issue had it determined upon remand to call any of the witnesses referenced in those reports. However, it did not do. As indicated by the ALJ: “[h]aving conferenced with counsel on the issue on remand, and they are having determined that they did not seek to supplement the factual record but that I should rely on the original hearing record, this remanded matter is ripe for redetermination” (emphasis added).

Regarding the penalty, while the Commission agrees with the ALJ that a reduction is warranted, it finds that a 60 working day suspension is appropriate. In determining the proper penalty, the Commission’s review 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.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).

1 In the ALJ's original initial decision, she recommended modifying the penalty to a “90 day suspension.” The ALJ did not specify whether it was a 90 calendar day or working day suspension. In its March 6, 2019 decision, the Commission sustained a 90 working day suspension.

In this case, the appellant has only a prior written reprimand in her disciplinary history. Also, some of the underlying charges were properly dismissed in this matter. Regardless, the Commission finds that the appellant’s sustained misconduct was highly inappropriate, especially for such a high level supervisory public safety employee. The Commission cannot emphasize enough that such actions by a superior office not only tend to bring negative notoriety and disrepute to the appointing authority, but also tend to diminish the confidence of the public in the effective administration of government and public service. Accordingly, the Commission finds that a 60 working day suspension should impress upon the appellant that such misconduct will not be tolerated, and any future misconduct could lead to an increased penalty up to and including removal from employment.

Since the penalty has been modified, the appellant is entitled to back pay, benefits and seniority for the difference in time between the conclusion of the 60 working day suspension and the 90 working day suspension.2 See N.JA.C. 4A:2- 2.10. However, the appellant is not entitled to counsel fees.2 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

2 Assuming the appellant was previously paid back pay for the difference in time between the conclusion of the Commission’s originally imposed 90 working day suspension and the appointing authority's original six-month suspension 1 In her original initial decision, the ALJ recommended awarding 50% counsel fees, which was reversed by the Commission in its March 6, 2019 decision. In this regard, the ALJ’s award of such counsel fees was not appropriate. A reduction in penalty may lead to an award of partial counsel fees, but only under circumstances where an appellant has prevailed on the most serious charges leaving only incidental charges, which give rise to a significantly reduced penalty, such as a minor discipline. See e.g., Thomas Grill and James Walsh v. City of Newark, Docket No. A-6224-98T3 (App. Div., January 30, 2001); In the Matter of Diane Murphy (MSB, decided June 8, 1999); In the Matter of

Joanne Chase (MSB, decided June 24, 1997): In the Matter of James Haldeman (MSB, decided September 7, 1994); In the Matter of Donald Fritze (MSB, decided January 26, 1993). Such was not the case in that matter, nor is it the case in the current matter.

dismissed some of the charges against the appellant, but it has sustained a serious charge and imposed major discipline. 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. 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.

ORDER

The Civil Service Commission finds that the action of the appointing authority in disciplining the appellant was justified. The Commission therefore modifies the six-month suspension to a 60 working suspension. The Commission further orders that the appellant be granted back pay, benefits and seniority as specified above. 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.

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.