Robert Pharo Atlantic County, CSC Docket No. 2020-1263

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BackgroundThe appeal of Robert Pharo, County Correction Officer, Atlantic County, Department of Public Safety, removal effective August 28, 2019, on charges, was heard by Administrative Law Judge Kathleen M. Calemmo, who rendered her initial decision on April 14, 2020, No exceptions were filed.

AnalysisHaving considered the record and the Administrative Law Judge’s initial decision, and having made an independent evaluation of the record, the Civil Service Commission (Commission), at its meeting of May 20, 2020, accepted and adopted the Findings of Fact and Conclusion as contained in the attached Administrative Law Judge’s initial decision. However, the Commission did not agree with the ALJ’s recommendation to uphold the removal. Rather, the Commission modified the removal to a 45 working day suspension.

In this case, the only issue is whether the appellant's misconduct was worthy of removal absent the imposition of progressive discipline. In that regard, in determining the proper penalty, the Commission’s review is de novo. In addition to considering the seriousness of the underlying incident in determining the proper | penalty, the Commission utilizes, when appropriate, the concept of progressive discipline. West New York v. Bock, 38 N.J. 500 (1962). Although the Commission | applies the concept of progressive discipline in determining the level and propriety of penalties, an individual’s prior disciplinary history may be outweighed if the infraction at issue is of a serious nature. Henry v. Rahway State Prison, 81 Nd. 571, 580 (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). Further, even when a law enforcement officer does not possess a prior disciplinary record after many unblemished years of employment, the seriousness of an offense may nevertheless warrant the penalty of removal where it is likely to undermine the public trust. See Henry v. Rahway State Prison, supra, 81 N.J. at 579-80. Where an infraction has not been found to be egregious, the tenets of progressive discipline are generally followed. See In the Matter of Anthony Stallworth, 208 N.J. 182 (2011).

In this case, while the appellant’s infraction is very serious, the Commission does not find it so egregious as to bypass the imposition of progressive discipline and impose removal. The appellant is clearly guilty of the insubordination and related charges, however, there are mitigating factors that support a lesser penalty. Initially, it cannot be said that the appellant’s failure to write the requested report jeopardized the security of the facility since his superiors became aware of the activity the appellant witnessed. While their legitimate concerns that the appellant’s professed reasons for not writing the report support severe disciplinary action, it does not establish that his actions were so egregious to bypass progressive discipline. In that regard, the appellant was a 13-year employee and had no prior major discipline. Moreover, all involved agreed that his conduct was aberrational as there were no similar previous incidents, which tends to cut against the Warden’s assessment that the appellant’s “fear became a liability for the facility.” Accordingly, based on the above, the Commission finds that the appropriate penalty in this matter is a 45 working day suspension. This significant suspension in no way minimizes the appellant’s misconduct and should serve as a warning that any future infractions would support a disciplinary penalty up to and including removal.

Since the removal has been modified, the appellant is entitled to be reinstated to his position with back pay, benefits and seniority following his suspension until the date of his reinstatement pursuant to N.J.A.C. 4A:2-2.10.

RuleRegarding 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); James L. Smith v. Department of Personnel, Docket No. A-1489-02T2 (App. Div. March 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 matter, while the penalty was modified, charges were sustained, and major discipline was imposed. Therefore, the appellant has not prevailed on all or substantially all of the primary issues of the appeal. Consequently, as appellant has failed to meet the standard set forth at N.Jd.A.C. 44:2-2.12, counsel fees must be denied. This decision resolves the merits of the dispute between the parties concerning the disciplinary charges and the penalty imposed by the appointing authority. However, in light of the Appellate Division’s decision, Dolores Phillips v. Department of Corrections, unpublished, Docket No. A-5581-01T2F (App. Div. Feb. 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 based on any dispute regarding back pay.

ORDER

The Civil Service Commission finds that the action of the appointing authority in removing the appellant was not justified. Accordingly, the Commission modifies the removal to a 45 working day suspension. Pursuant to N.J.A.C. 4A:2- 2.10, the appellant is entitled to receive mitigated back pay, benefits and seniority from the conclusion of the 45 working day suspension until the actual date of reinstatement. 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 are encouraged to make a good faith effort to resolve any dispute as to back pay. However, under no circumstances should the appellant’s reinstatement be delayed based on any dispute regarding 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 shall be pursued in the Superior Court of New Jersey, Appellate Division.