Matthew Calio, CSC Docket No. 2019-1598

BackgroundThe Superior Court of New Jersey, Appellate Division, has remanded the Civil Service Commission’s (Commission) decision upholding the 30 calendar day suspension of Matthew Calio, a County Correction Officer with Camden County, for reconsideration of the penalty. See In the Matter of Matthew Calio, Docket Nos. A- 5183-16T3 and A-5189-16T3 (App Div. Dec. 11, 2018). The court did not retain jurisdiction. Copies of the Appellate Division’s decision and the Commission’s decision of the 30 calendar day suspension, In the Matter of Matthew Calio (CSC, decided July 13, 2017), are attached.

The relevant facts of this matter are thoroughly discussed in the attached decisions. The Commission upheld the imposition of a 30 calendar day suspension based upon the Administrative Law Judge’s (ALJ) determination that the charges of insubordination, conduct unbecoming a public employee, neglect of duty, other sufficient cause, and violations of Camden County Correctional Facility General Rules of Conduct (GRC) regarding viclations in general, conduct unbecoming a public employee, neglect of duty, insubordination and security were sustained. It is noted the ALJ determined that the appointing authority did not meet its burden of proof with regard to the inattentiveness to duty charge.!' With regard to the penalty, the ALJ noted that the appellant had been previously reprimanded on two occasions for neglect of duty and had received a three and a 15-day suspension for conduct unbecoming a public employee. In light of the record in the matter, including the appellant’s disciplinary history, the nature of his job

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duties and the nature of the underlying charges, the ALJ recommended that the 30 calendar day suspension be upheld. Upon its review of the record, the Commission adopted the ALJ’s Findings of Fact and Conclusion and upheld the 30 calendar day suspension.

The appellant appealed that decision to the Appellate Division.2. The Appellate Division upheld the charges with the exception of the charge of other sufficient cause. Specifically, it found the Commission erred in upholding that charge as it had adopted the ALJ's findings that the appellant had received insufficient notice that the Final Notice of Disciplinary Action (FNDA) included violations of Post Order 8 and General Orders 73 and 74. Therefore, it remanded the matter to the Commission to reconsider the penalty in light of its decision.

Despite the opportunity to do so, neither the appellant nor the appointing authority has submitted arguments on remand.

CONCLUSION

The Appellate Division remanded this matter to the Commission for reconsideration of the proper penalty against the appellant in light of its determination that there was insufficient evidence to sustain the charge of other sufficient cause. It is noted that the Appellate Division affirmed the Commission’s decision to sustain the remaining eight charges against the appellant. Although the appointing authority imposed a 30 calendar day suspension based upon 11 charges, it is emphasized that the Commission's review in determining the proper 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 determining the propriety of the penalty, several factors must be considered, including the nature of the offense, the concept of progressive discipline, and the employee’s prior record. George v. North Princeton Developmental Center, 96 NJAR. 2d (CSV) 463. In assessing the penalty in relationship 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.

In balancing the nature of the appellant's offenses with his disciplinary history, the Commission finds that the appropriate penalty is a 30 calendar day suspension. In assessing this penalty, the Commission notes that the appellant was found to have violated rules and regulations pertaining to insubordination, conduct unbecoming a public employee, neglect of duty, and six of the appointing authority’s

* The appellant also appealed the imposition of a 180-day suspension to the Appellate Division which was consolidated with the instant matter. In its decision, the Appellate Division upheld the 180-day suspension. Therefore, that discipline will not be discussed in this matter.

rules and regulations. Further, the appellant’s record includes, in part, a three and a 15-day suspension for neglect of duty in 2015. The appellant's 15-day suspension resulted from charges that included, in part, conduct unbecoming a _ public employee, neglect of duty, and violations of GRCs regarding conduct unbecoming a public employee, neglect of duty. As a law enforcement officer, the appellant was required to comply with the lawful orders of his superior. See Steven Palamara v. Township of Irvington, Docket No. A-6877-02T1 (App. Div. March 30, 2005) (The appellant was required to comply with an order of his superior, even if he believed the orders to be improper or contrary to established rules and regulations). The appellant’s failure to comply with Captain Taylors lawful orders, in the paramilitary setting of a county correctional facility, is especially egregious since the ability to follow orders is crucial to promoting the safety and welfare of the public. Accordingly, the record does not evidence any reason to modify the penalty imposed by the appointing authority and previously sustained by the Commission. Therefore, based on the totality of the record, including the nature of the offenses and the appellant’s prior disciplinary history, the 30 calendar day suspension is amply supported and consistent with the concept of progressive discipline.

ORDER

The Civil Service Commission finds that the appointing authority’s action in imposing a 30 calendar day suspension was justified.

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