CARLOS PIMENTEL, CSC Docket No. 2019-3434

BackgroundThe appeal of Carlos Pimentel, Senior Parole Officer, State Parole Board, removal effective February 1, 2019, on charges, was heard by Administrative Law Judge Sarah G. Crowley (ALJ), who rendered her initial decision on May 19, 2021, modifying the removal to a resignation in good standing. Exceptions were filed on behalf of the appointing authority.

AnalysisHaving considered the record and the ALJ initial decision, and having made an independent evaluation of the record, the Civil Service Commission (Commission), at its meeting on June 2, 2021, did not adopt the ALJ’s recommendation to modify the removal to a resignation in good standing. Rather, the Commission upheld the removal.

DISCUSSION

The appellant in this matter was charged with inability to perform duties and conduct unbecoming a public employee. Specifically, the appointing authority alleged that the appellant was subject to a Final Restraining Order (FRO) as a result of a domestic violence proceeding and could not carry a firearm as required by his position.

Administrative Law JudgeIn her initial decision, the ALJ granted the appointing authority's motion for summary decision finding that as a result of the FRO, the appellant was unable to perform the essential functions of his position as a Senior Parole Officer. She further stated that “the State clarified that they (sic) are seeking removal as a matter of law based on inability to perform his duties and not on the conduct unbecoming. Accordingly, 1 ORDER that his termination is hereby MODIFIED to a resignation in good standing.” No further reasoning was provided.

AnalysisIn its exceptions, the appointing authority argues that the modification of the removal 1s inappropriate and contends that the removal should be upheld.

After its de novo review of the record in this matter, the Commission agrees with the ALJ’s granting of the motion for summary decision. However, it disagrees that the removal should be modified to a resignation in good standing.

In determining the proper penalty, the Commission’s review is de novo. In this regard, it is clear that the removal should not be modified in this matter. The underlying basis for the charge of inability to perform duties was that the appellant was legally barred from carrying a firearm pursuant to a FRO based on a domestic violence proceeding. While the Commission has modified removals to resignations under certain circumstances, such a modification is inappropriate to the case at bar. In previous matters, such a modification was appropriate where the employee’s inability to perform his duties was based on, for example, a serious, chronic and debilitating medical or psychological condition or disability that came about through no fault of the employee. See N.J.A.C. 4A:2-2.9(d); Eugene Verdell v. New Jersey State Department of Military and Veterans Affairs, Docket No. A-0497-04T5 (App. Div. February 16, 2006); See also, e.g., In the Matter of Darryl Duncan (CSC, decided December 16, 2015); In the Matter of Nadine Downing (CSC, decided April 20, 2011). The Commission will not make such a modification where the circumstance leading to the inability to perform was brought about by the employee's underlying misconduct, such as this matter. In this regard, the FRO based on a domestic violence proceeding led to the appellant’s legal inability to perform the essential functions of his position. To modify the removal to a resignation in good standing under these circumstances would essentially be rewarding the appellant for the underlying conduct which led to the FRO and his subsequent inability to perform.

ORDER

The Civil Service Commission finds that the action of the appointing authority in removing the appellant was justified. The Commission therefore upholds that action and dismisses the appellant’s appeal.

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