Gregory Williams, CSC Docket No. 2019-1386, 2019-1923

BackgroundThe appeals of Gregory Williams, Senior Correctional Police Officer, South Woods State Prison, Department of Corrections, 15 and 60 working day suspensions on charges, were heard by Administrative Law Judge Elaine B. Frick (ALJ), who rendered her initial decision on July 24, 2024. Exceptions were 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, including a thorough review of the exceptions, the Civil Service Commission (Commission), at its meeting on September 4, 2024, adopted the ALJ’s Findings of Fact and Conclusions and affirmed the recommendation to uphold the 15 working day suspension. However, the Commission did not agree with the ALJ’s modification of the 60 working day suspension to a 15 working day suspension. Rather, the Commission imposed a 30 working day suspension.

As indicated above, the Commission has thoroughly reviewed the exceptions filed in this matter and finds them generally unpersuasive. The Commission makes the following comments. In its exceptions, the appointing authority argues that the ALJ should not have dismissed certain charges underlying the 60 working day suspension. The Commission disagrees. Much of the ALJ’s determinations stemmed from her credibility determinations of the testimony of the witnesses in conjunction with the video evidence in the record. In this regard, 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 also, 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 sufficient credible evidence or was otherwise arbitrary. See N.J.S.A. 52:14B-10{c); Cavalieri u. Public Employees Retirement System, 368 N.J. Super. 527 (App. Div. 2004). Upon its review, the Commission finds nothing in the record or the appointing authority’s exceptions to demonstrate that the ALJ’s credibility determinations, or her findings and conclusions based on those determinations in conjunction with the video of the event, were arbitrary, capricious or unreasonable.

As such, the only question is the proper penalty to be imposed regarding the 60 working day suspension. In that regard, the Commission notes that its review of the penalty is also de nove. Further, 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 determining the propriety of the penalty, several factors must be considered, including the nature of the appellant's offense, the concept of progressive discipline, and the employee's prior record. George v. North Princeton Developmental Center, 96 N.dJ.A.R. 2d (CSV) 463. It is settled that the theory of progressive discipline is not a “fixed and immutable rule to be followed without question.” See Carter v. Bordentown, 191 N.dJ. 474 (2007).

Upon its review, the Commission finds that the modified 15 working day suspension imposed, in light of the misconduct that has been sustained, and, importantly, the appellant’s previous disciplinary history, is insufficient. The appellant’s history of major discipline as well as similar types of misconduct supports a higher penalty. However, given the circumstances and the dismissal of certain charges, the Commission finds that the proper penalty is a 30 working day suspension. This penalty should be sufficient to impress on the appellant that any future similar misconduct will result in increased penalties, up to removal from employment.

Since the 60 working day suspensions has been modified, the appellant is entitled to 30 working days of back pay, benefits, and seniority pursuant to N.J.A.C. 4A:2-2.10. However, he is not entitled to counsel fees. N.J.A.C. 4A:2-2.12(a) provides for the award of counsel fees 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 the disciplinary appeal is the merits of the charges. See Johnny Walcott v. City of Plainfield, 282 N.J. Super. 121,128 (App. Div. 1995): 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, the initial 15 working day suspension was upheld and, although the penalty for the 60 working day suspension was modified by the Commission, charges were sustained, and major discipline was imposed. Consequently, as the appellant has failed to meet the standard set forth at N.J.A.C, 4A:2-2.12, counsel fees must be denied.

This decision resolves the merits of the dispute between the parties concerning the disciplinary charges and the penalties imposed by the appointing authority. However, per the Appellate Division’s decision, Dolores Phillips v. Department of Corrections, Docket No. A-5581-01T2F (App. Div. Feb. 26, 2003), the Commission’s decision modifying the 60 working day suspension to a 30 working day suspension will not become final until any outstanding issues concerning back pay are finally resolved.

ORDER

15 Working Day Suspension

The Civil Service Commission finds that the action of the appointing authority in suspending the appellant was justified. Accordingly, the Commission affirms that action and dismisses the appeal of Gregory Williams.

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

60 Working Day Suspension

The Civil Service Commission finds that the action of the appointing authority in suspending the appellant was justified. However, it modifies the 60 working day suspension to a 30 working day suspension. The Commission further orders that the appellant be granted 30 working days of back pay, benefits, and seniority. 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.

Counsel fees are denied.

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 shall be pursued in the Superior Court of New Jersey, Appellate Division.