Jeremy Kaczoroski, CSC Docket No. 2019-314, 2019-315

BackgroundThe appeals of Jeremy Kaczoroski, Electrician, Trenton Psychiatric Hospital, Department of Health, two removals, effective December 11, 2017, on charges, were heard by Administrative Law Judge Carl V. Buck, III (ALJ), who rendered his initial decision on May 18, 2022. Exceptions were filed on behalf of the appellant.

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 of June 29, 2022, accepted and adopted the Findings of Fact as contained in the attached ALJ’s initial decision. Accordingly, the Commission accepts and adopts the ALJ’s recommendation to uphold the removal based on the appellant’s interaction with Employee Relations employees. Additionally, given its adoption of the removal in the above matter, while it does not agree with the ALJ’s recommendation to procedurally dismiss the charges underlying the removal based on the “pillowcase” incident, it declines to disturb that recommendation.

DISCUSSION

The appellant’s two removals were predicated on separate, but related, events. The first removal was based predominantly on the appellant’s violation of the State Policy Prohibiting Discrimination in the Workplace (State Policy). Specifically, it was alleged that the appellant, inter alia, attempted to place a pillowcase, with eye holes cut out, over his head in order to imitate a Ku Klux Klan (KKK) hood. The second removal was based on allegations regarding the appellant’s inappropriate interactions with an Employee Relations employees when he was receiving a disciplinary notice.

The Commission will deal with these incidents in reverse order. In his initial decision, the ALJ found that the appellant’s actions towards the Employee Relations employees were threatening and intimidating. Based on these egregious actions, the ALJ found that the underlying removal was appropriate. Upon its de novo review of the record, the Commission agrees with the ALJ that such behavior is wholly inappropriate in the workplace and worthy of removal. In this regard, the Commission is unpersuaded by the appellant’s exceptions which argue that the offenses are not worthy of removal absent the imposition of progressive discipline. The appellant’s actions were threatening and bordering on violent, and have no place in the workplace, and therefore, of such an egregious nature that removal is warranted.

Administrative Law JudgeRegarding the pillowcase incident, the ALJ found that the appellant did commit the underlying infractions alleged. The ALJ also found that “the [pillowcase] incident in question is deplorable and would be a terminable offense.” However, the ALJ dismissed these charges based on procedural grounds. Specifically, the ALJ stated:

[Bjecause the State and the majority representative agreed to a procedure for review before the appointing authority, and the appointing authority failed to follow that procedure, per N.J.S.A. 11A:2-13, I FIND that the charges brought relating to the appellant’s violation of the State Policy were procedurally defective and are thereby dismissed. I FURTHER FIND that the charges brought in the January 8, 2018, PNDA, N.J.A.C. 4A:2-2.3(a)6 -— Conduct unbecoming a public employee; N.J.A.C. 4A:2-2.3(a)12 -— Other sufficient cause NJ Department of Human Services Disciplinary Action

AnalysisProgram D13-1 Engaging horseplay, running, scuffling, or throwing things, are procedurally defective because they were not brought within one year of the incident as required by the union contract and are therefore dismissed.

Administrative Law JudgeIn this regard, the ALJ relied on provisions in the union contract which stated:

An employee shall not be disciplined for acts which occurred more than one (1) year prior to the services of a [PNDA], except for those acts which would constitute a crime or involve alleged violations of the New

AnalysisJersey Policy Prohibiting Discrimination in the Workplace (“State Policy”). The employee’s whole record of employment, however, may be considered with respect to the appropriateness of the penalty to be imposed. Charges involving alleged violations of the State Policy must be brought within sixty (60) days of notification to the Appointing

Authority of the EEO Investigative Determination.

The Commission does not agree. Nevertheless, as the appellant’s removal for the other incident has been upheld, the dismissal of these charges and the underlying removal is essentially moot. As such, the following is for instructional purposes and details the Commission’s position regarding major disciplinary matters and the interaction of Civil Service law and rules arising under a contract.

Initially, while it is permissible for the State and a majority representative to agree on departmental procedures under N.J.S.A. 11A:2-13,! as those procedures are part of a contract, neither the Commission nor the ALJ have the authority to review or enforce such provisions where they are not in accordance with the procedures outlined in Title 11A of the New Jersey Statutes or Title 4A of the New Jersey Administrative Code. For the Commission to have such authority, the statutes or any associated regulation would have to indicate the same. No such provision exists in Civil Service law or rules. This is particularly true in matters concerning egregious violations of the State Policy, which, in this case, the ALJ found occurred. In fact, it cannot be ignored that the appellant’s threatening behavior toward Employee Relations staff on December 7, 2017, stemmed from his disagreement to attend EEO training as a result of the October 17, 2017, State Policy investigation determination. In this regard, in accordance with N.d.A.C. 4A:7-3.1(g)2 and 3, and N.d.A.C. 4A:7-3.1(k), an appointing authority is authorized to take remedial action, including referral to training, when an employee has violated the State Policy. Thus, the appellant’s continued obstinance and outbursts in connection to his assertions that he should not be subjected to training for his violation of the State Policy could be viewed as a further violation of the Policy. Moreover, had the appellant’s December 7, 2017 conduct not occurred, it 1s entirely possible that it would have not muddied an already explosive situation which resulted in the additional charges. Said differently, but for that action, the appellant may have very well been disciplined for the original State Policy violation within 60 days. Regardless, the ALJ should not have entertained the argument that the charges should be dismissed based on departmental-level procedural violations found in a contract.2, Any such procedural arguments by the appellant needed to be made at the departmental level, and absent a satisfactory result, to the

1 N.J.S.A. 11:A2-13 states, in pertinent part, where the State of New Jersey and the majority representative have agreed to a procedure for appointing authority review before major disciplinary action is taken against a permanent employee, such procedure shall be the exclusive procedure for review before the appointing authority. 2 The Commission also notes that it is the rarest case where it will dismiss disciplinary charges based on departmental-level procedural violations. In this regard, there is nothing in Title 11A of the New Jersey Statutes or Title 4A of the New Jersey Administrative Code that indicate that charges are required to be dismissed based on procedural viclations. Indeed, in cases where procedural violations are deemed prejudicial to an appellant, the Commission may award remedies such as back pay. However, in most cases, the Commission deems any departmental-level procedural violations cured by the granting of a de novo hearing on the merits of the disciplinary charges. See Ensslin v. Township of North Bergen, 275 N.J. Super. 352, 361 (App. Div. 1994), cert. dented, 142 N.f. 446 (1995); In re Darcy, 114 NJ. Super, 454 (App. Div. 1971).

subsequent proper forum.’ However, for the reasons previously outlined, as the appellant’s removal has been upheld on other grounds, the Commission will not disturb the dismissal of that removal.4 However, the Commission emphasizes that the ALJ did find that the appellant committed the reprehensible and egregious infractions alleged regarding the “pillowcase” incident, and violated the State Policy. He also agreed that such infractions would be worthy of removal. The Commission agrees.

ORDER

The Civil Service Commission finds that the action of the appointing authority in removing the appellant was justified. The Commission therefore affirm that action and dismisses the appeals of Jeremy Kaczoroski.

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

3 In its cursory review of the contract, the Commission could find no provision directing an appellant to the proper forum. Jurisdiction on such matters may rest with the Governor’s Office of Employee Relations or, presumably with the Public Employment Relations Commission, or could be pursued via a contract action in the New Jersey Superior Court. The Commission also notes that it could not find a provision in the contract that called for the dismissal of disciplinary charges based on such procedural violations and it makes no judgement as to what determination would be made by the proper forum on such claims. 4 There is nothing in Title 11A of the New Jersey Statutes or Title 4A of the New Jersey Administrative Code which limits the amount of time for the bringing forth of disciplinary charges. The only such provisions, found in other statutory chapters, pertain to law enforcement or public safety employees, such as Police Officers, Correctional Police Officers, Sheriffs Officers, efc. See e.g. N.f.S.A, 40A:14-147. In this regard, it is clearly in an appointing authority’s interest to bring forth charges as soon as practicable as it has the burden of proof in major disciplinary matters. As such, there would only rarely be preyudice to an appellant for a long delay between alleged misconduct and the bringing forth of charges. Rather, there would be more potential for prejudice to the appointing authority, as a lengthy delay in bringing forth charges risks the spoilage of evidence, the lack of recall or availability of witnesses, or other related problems in proving any underlying charges. Moreover, an appellant is afforded significant procedural due process at the departmental level and upon further appeal to the Commission. Further, a successful appellant is afforded full remedies sufficient to make them whole. Accordingly, the length of time to bring the charges against an appellant for incidents similar to those in question does not normally form any basis to procedurally dismiss those charges.