Donna Roche, CSC Docket No. 2018-3770

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BackgroundThe appeal of Donna Roche, Judiciary Clerk 3, Middlesex Vicinage, Judiciary, of her 10 working day suspension on charges, was heard by Administrative Law Judge Susan L. Olgiati (ALJ), who rendered her initial decision on January 27, 2020. 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 attached ALJ’s initial decision, and having made an independent evaluation of the record, the Civil Service Commission (Commission), at its meeting on April 15, 2020, did not adopt the ALdJ’s recommendation to uphold the 10 working day suspension. Rather, the Commission modified the 10 working day suspension to a two working day suspension.

DISCUSSION

The appellant was charged with violating the Judiciary’s policies and directives relating to the use of social media. Specifically, the appointing authority asserted that in December 2017, the appellant made comments directly relating to the Judiciary and disclosed confidential information in a Facebook post. 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 JudgeThe ALJ set forth in her initial decision that the appellant did not substantively challenge that she made the comments in question. However, the appellant contended that the comments were meant to be “humorous” and she admitted that the posting was a lapse in judgment. The appellant also testified that she took responsibility for her actions and never intended to impugn the Judiciary. The ALJ found this testimony credible. Regardless, the ALJ found the appellant guilty of the charges. Regarding the penalty, the ALJ stated that “despite the fact that appellant is a long time employee of the Judiciary, has positive performance evaluations, and a disciplinary-free employment history, the importance of preserving the integrity of the courts and maintaining the public’s trust, esteem and confidence in same, justifies imposition of a ten-day suspension.”

AnalysisIn her exceptions, the appellant contends, among other things, that the Judiciary failed to conduct a thorough investigation into the matter, the ALJ erred in finding the Judiciary’s witness credible while finding portions of her testimony not credible, and erred in not making an adverse inference for the Judiciary’s failure to call a witness.

In its reply to the exceptions, the appointing authority argues that the ALJ’s credibility determinations were appropriate and supported by the evidence in the record, that its investigation into the matter was objective and thorough and that, given the infraction, the 10 working day suspension was the appropriate penalty.

Upon its de novo review of the record, the Commission initially notes that it is wholly unpersuaded by the appellant’s exceptions as the issues presented were either already addressed by the ALJ of lack sufficient merit to warrant extended discussion. Moreover, the Commission agrees with the ALJ’s determination regarding the charges. However, the Commission does not agree with the ALJ’s recommendation to uphold the 10 working day suspension. In this regard, in determining the proper penalty, the Commission’s review is de novo. In addition to considering the seriousness of the underlying incident in determining the proper penalty, the Commission utilizes, when appropriate, the concept of progressive discipline. West New York v. Bock, 38 N.J. 500 (1962). Although the Commission applies the concept of progressive discipline in determining the level and propriety of penalties, an individual’s prior disciplinary history may be outweighed if the infraction at issue is of a serious nature. Henry v. Rahway State Prison, 81 Nd. 571, 580 (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). Further, even when a law enforcement officer does not possess a prior disciplinary record after many unblemished years of employment, the seriousness of an offense may nevertheless warrant the penalty of removal where it is likely to undermine the public trust. See Henry v. Rahway State Prison, supra, 81 NJ. at 579-80.

In the instant matter, notwithstanding that the appellant’s infraction was serious, several mitigating factors warrant the imposition of a lesser penalty.

Specifically, the record shows that, at the time of the infraction, the appellant had been employed with the Judiciary more than 20 years, had no prior disciplinary actions, had positive work evaluations and credibly testified regarding her lack of intent to impugn, the Judiciary. Accordingly, while the appellant’s misconduct and lapse in judgment were clearly inappropriate, the Commission does not find her actions so serious as to warrant the imposition of a 10 working day suspension. Rather, the Commission finds that a two working day suspension is the appropriate penalty. This penalty is sufficient to impress upon the appellant that her actions were improper and will not be condoned, and caution her that any future similar infractions will result in a more severe penalty.

As the suspension has been modified, the appellant is entitled to eight days of back pay, benefits and seniority. With regard to counsel fees, since the appellant has not prevailed on the primary issues on appeal, she is not entitled to an award of counsel fees. See N.J.A.C. 4A:2-2.12. 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. 1998); James L. Smith v. Department of Personnel, Docket No. A-1489-02T2 (App. Div. March 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 the case at hand, while the penalty was modified, all the charges were upheld and discipline was imposed. Consequently, as the appellant has failed to meet the standard set forth in N.J.A.C. 4A:2-2.12, counsel fees must be denied.

ORDER

The Civil Service Commission finds that the appointing authority's actions in imposing a 10 working day suspension was not justified. Therefore, the Commission modifies the 10 working day suspension to a two working day suspension. The Commission further orders that the appellant be granted eight days of back pay, benefits and seniority as provided for in N.-J.A.C. 4A:2-2.10. Proof of income earned shall be submitted by or on behalf of the appellant to the appointing authority within 30 days of issuance of this decision.

Counsel fees are denied pursuant to N.J.A.C. 4A:2-2.12.

ClosingThis is the final administrative determination in this matter. Any further review should be pursued in a judicial forum.