Edwin Dye, CSC Docket No. 2019-461

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BackgroundThe appeal of Edwin Dye, a Building Maintenance Worker, City of Passaic, Department of Engineering, removal effective August 7, 2018, on charges, was heard by Administrative Law Judge Andrew M. Baron (ALJ), who rendered his initial decision on January 25, 2021. Exceptions were filed on behalf of the appointing authority and a reply was filed on behalf of the appellant.

AnalysisHaving considered the record and the exceptions, as well as the ALJ's initial decision reversing the removal, and having made an independent evaluation of the record, the Civil Service Commission (Commission), at its meeting on March 24, 2021, did not adopt the recommendation to reverse the removal. Rather, the Commission imposed a five working day suspension.

DISCUSSION

The appellant in this matter was charged with incompetency, inefficiency or failure to perform duties, inability to perform duties, conduct unbecoming a public employee and other sufficient cause. Specifically, the appellant struck a pedestrian with a City-owned vehicle while on-duty.

Administrative Law JudgeIn his initial decision, the ALJ found that while the appellant did, indeed strike a pedestrian, that the charges against him were not sustained. Additionally, the ALJ made several other findings regarding a “Last Chance Agreement” entered into by the appellant and the City pursuant to a prior disciplinary matter. Ultimately, the ALJ found that:

I CONCLUDE that the appointing authority has failed in its burden to prove by way of a preponderance of the evidence that Dye was unable to perform his duties, committed conduct unbecoming a public employee, and/or there was other sufficient cause to justify his termination such that the accident itself should lead to a finding of major discipline by the municipality in violation of the 2014 Last Chance Agreement. By way of example, if Dye without authorization, had been driving the City owned vehicle for personal use on off hours when the accident occurred, that may have constituted conduct unbecoming a public employee. Or, if Dye had left the scene of the accident, to prevent the police from doing the investigation, that would constitute conduct unbecoming a public employee, as well as other violations. Nor is there an indication that Dye’s ability to drive the vehicle was impaired, as a result of being under the influence of alcohol or drugs.

Additionally, there is no indication of insubordination, such as Speeding, Reckless or Careless Driving, any of which might be a sign that Dye disregarded his duties as a public employee. Many public employees have accidents while driving City vehicles. But without something more, I CONCLUDE to just invoke the terms of a Last Chance Agreement seems unfair, unjust and an arbitrary and capricious action against a public employee. If this type of draconian penalty were allowed to stand, any public employee, who simply did not like an individual working for it, disliked their appearance, their way of speaking, the way they dressed or some other human mannerism, could abuse a supervisor's discretion and fire an employee without valid cause.

AnalysisEven with the language in the prior Last Chance Agreement, that a penalty may be imposed as major discipline in the sole and absolute discretion of the City Administrator, I FURTHER CONCLUDE without some sort of underlying conduct, the termination here, imposed without interviewing the injured parties, without interviewing the officer, with no summons being issued to Dye for violating traffic ordinances, and without visiting the scene, is an indication of an arbitrary and capricious penalty against a public employee of the kind that under the totality of the circumstances the employer has failed to meet its burden justifying the decision to terminate Dye.

Based on the above, the ALJ dismissed the charges and reversed the removal. While the Commission agrees with much of the above, after its de novo review of the record in this matter, it does not agree that all of the charges should be dismissed, nor does it agree that no penalty should be imposed in this matter.

In its exceptions, the appointing authority argues that the ALJ inappropriately dismissed the charges against the appellant as his actions in the incident constituted per se violations of the motor vehicle code. It further argues that the police report from the accident that was entered into evidence indicated that the appellant struck the pedestrian while he was in a crosswalk as well as the Police Officers opinion that the appellant was at fault for the accident. It further contends that the fact that the Officer did not issue a motor vehicle citation is not determinative. Finally, it contends that the courts have found that Last Chance Agreements should be construed in its favor an appointing authority.

In reply, the appellant argues that the appointing authority’s exceptions in no way challenge the ALJ’s determination that the imposition of the disciplinary action was, under the facts and circumstances presented, arbitrary and capricious. He also contends that the appointing authority attempts to introduce evidence not in the record in its exception and the same should be rejected by the Commission.

In this matter, the facts in the record as found by the ALJ show that, while not cited by police for any motor vehicle infraction, the appellant was, indeed, found “liable” for the accident. As such, while the circumstances support that this liability did not constitute conduct unbecoming a public employee as there was no intent and the incident was truly an “accident,” the appellant’s liability for the accident clearly supports upholding the charge of incompetency or inefficiency. To uphold such a charge, it would not be required that the appellant was cited with a motor vehicle offense, or otherwise engaged in any of the other actions the ALJ listed, such as leaving the scene, etc. Rather, the facts demonstrate that the appellant was on-duty and his liability for the accident supports that he was performing his duties in an incompetent or inefficient manner. Having found the appellant guilty of that charge, the Commission must determine the proper penalty as well as the implication of the Last Chance Agreement.

In determining the proper penalty, the Commission’s review is also 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 assessing the penalty in relation 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. However, it is well established that where the underlying conduct is of an egregious nature, the imposition of a penalty up to and including removal is appropriate, regardless of an individual's disciplinary history. See Henry v. Rahway State Prison, 81 N.J. 571 (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).

In this case, the appellant’s actions are clearly insufficiently egregious to support the penalty of removal. Nevertheless, the Commission is required to take the Last Chance Agreement into account. In that regard, the Commission notes that the use of the Last Chance Agreement is solely for the purpose of determining the appropriate penalty. While the Office of Administrative Law and the Commission are not strictly bound by the terms set forth in the agreement, since neither entity was a party to it, the Commission is nonetheless cognizant of the fact that the parties voluntarily agreed to the penalty of removal for any subsequent major disciplinary violation. Consequently, a Last Chance Agreement can be used by the Commission as a significant factor to be considered when determining the appropriate penalty in an appeal. Additionally, Last Chance Agreements are generally construed in favor of appointing authorities because to do otherwise would discourage their use by making their terms meaningless. See Watson v. City of East Orange, 175 N.J. 442 (2003) (The Supreme Court found an employee’s termination was warranted when that employee did not perform in compliance with a Last Chance Agreement as contemplated by the parties. The Court added that a contrary conclusion would likely chill employers from entering into such agreements to the detriment of future employees); In the Matter of Phillip Montgomery (MSB, decided May 9, 2000) (In denying a request for reconsideration of an employee's removal, it was indicated that in addition to the employee’s extensive history of infractions and the concept of progressive discipline, it gave significant weight to the fact that the employee signed an agreement acknowledging that further instances of certain infractions would result in further disciplinary action up to and including removal). See also, In the Matter of Tina Kirk (CSC, decided January 27, 2010); In the Matter of Brian Whittle (MSB, decided May 28, 2003); In the Matter of Ann Marie Collins- Cole (MSB, decided December 18, 2002) and In the Matter of Donald Hickerson (MSB, decided September 10, 2002).

As indicated by the ALJ, the Last Chance Agreement in this matter states “that any future disciplinary infraction ... which results in a major disciplinary action . . . irrespective of the nature of the infraction, shall result in Dye’s immediate and final termination from the City.” However, while this term appears clear, it is still subject to interpretation. Does the term mean that any future discipline that results in a major disciplinary action, regardless of how that penalty was arrived at by the appointing authority, will result in removal? In other words, if the appointing authority only imposed a major disciplinary action utilizing progressive discipline for an infraction that otherwise would be considered minor, should the above term be implemented?! For the reasons below and after

1 Also, as indicated, the Commission is not a party to any Last Chance Agreement. Thus, any reference to the implementation and finality of any major disciplinary action in such an agreement is substantial review, the Commission cannot find that interpretation as reasonable in this matter. To credit that interpretation would essentially provide an appointing authority the unfettered ability to impose a major discipline or removal under a Last Chance Agreement for an infraction that could be considered trivial.2 Indeed, if such a term in Last Chance Agreements were to be construed as such, they would wholly inappropriately supersede the Commission’s statutory authority to impose the proper penalty. Thus, while the Commission does generally construe such agreements in favor of an employer, it cannot completely ignore where such agreements are not being implemented in a fair and balanced matter. Accordingly, given the appellant’s infraction as sustained above, the Commission cannot find that it is worthy of a major discipline. While a more unfortunate outcome may have occurred, the incident itself was merely an accident based not on any intentional malfeasance or misconduct by the appellant. As such, the Commission cannot credit the term in the Last Chance Agreement calling for the appellant’s removal based on a major discipline.

Nevertheless, the Commission is statutorily required to impose an appropriate penalty. To do so in this matter, it must also consider the tenets of progressive discipline. In this regard, the appellant’s past disciplinary history includes three minor disciplinary suspensions between 1996 and 2001, an eight working day suspension in 2007, a 35 working day suspension in 2012 and a 20 working day suspension in 2014 (which included the subject Last Chance Agreement). Given the nature of the current infraction, the sustained charges, and the appellant’s 24-year record of employment including his somewhat remote past disciplinary history, the Commission finds that the appropriate penalty in this matter is a five working day suspension. While this penalty does not appear “progressive” in nature, the current infraction is based on different circumstances and misconduct than his prior major disciplinary infractions, and absent those prior disciplines, an even lesser suspension may have been warranted. However, the Commission notes that the appellant is still subject to the provisions of the last chance agreement for any future qualifying infraction.

Since the penalty has been modified, the appellant is entitled to back pay, benefits and seniority five working days from the original date of his removal to the actual date of his reinstatement. See N.J.A.C. 4A:2-2.10. However, the appellant is not entitled to counsel fees. Pursuant to N.J.A.C. 4A:2-2.12(a), an award of counsel fees is appropriate only where an employee has prevailed on all or substantially all 0 eee solely under the jurisdiction of the Commission once an employee appeals that action to the Commission, 2 A more difficult question in this particular matter would be if the subject agreement stated “that any future disciplinary infraction will result in Dye’s immediate and final termination from the City.” Under that term, the Commission would likely be more inclined and constrained to completely construe that term in favor of the employer and uphold the removal, as the employee, by signing that agreement would clearly be on notice that any infraction, no matter how trivial or minor, would result in the loss of employment regardless of any other factors.

of the primary issues in an appeal of a major disciplinary action. 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. 1995); James L. Smith v. Department of Personnel, Docket No. A-1489-02T2 (App. Div. Mar. 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 this case, the Commission dismissed some of the charges against the appellant, but it has sustained a charge and imposed discipline. Therefore, the appellant has not prevailed on all or substantially all of the primary issues of the appeal. Consequently, as the appellant has failed to meet the standard set forth at N.J.A.C. 4A:2-2,12(a), counsel fees must be denied.

This decision resolves the merits of the dispute between the parties concerning the disciplinary charges and the penalty imposed by the appointing authority. In light of the Appellate Division’s decision in Dolores Phillips v. Depariment of Corrections, Docket No. A-5581-01T2F (App. Div. February 26, 2003), the Commission’s decision will not become final until any outstanding issues concerning back pay are finally resolved. However, under no circumstances should the appellant’s reinstatement be delayed pending any dispute as to the amount of back pay.

ORDER

The Civil Service Commission finds that the action of the appointing authority in removing the appellant was not justified. The Commission therefore modifies the removal to a five working suspension. The Commission further orders that the appellant be granted back pay, benefits and seniority as specified above. 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. Pursuant to N.J.A.C. 4A:2-2.10, the parties shall make a good faith effort to resolve any dispute as to the amount of back pay. However, under no circumstances should the appellant’s reinstatement be delayed pending any dispute as to the amount of back pay.

Counsel fees are denied pursuant to N.J.A.C. 4A:2-2,12.

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