Czezre Adams, CSC Docket No. 2020-1661

BackgroundThe appeal of Czezre Adams, Police Officer, City of Newark, Police Department, removal effective November 13, 2019, on charges, was heard by Administrative Law Judge Nanci G. Stokes (ALJ), who rendered her initial decision on March 4, 2021. Exceptions were filed on behalf of the appointing authority.

Having considered the ALJ’s initia] decision modifying the removal to a six- month suspension, and having made an independent evaluation of the record, the Civil Service Commission (Commission), at its meeting on April 7, 2021, adopted the Findings of Fact as contained in the initial decision. However, it did not adopt the recommendation to modify the removal to a six-month suspension. Rather, the Commission upheld the removal.

DISCUSSION

The appellant in this matter was charged with conduct unbecoming a public employee and violation of various departmental policies. Specifically, the appointing authority alleged that the appellant posted a video recorded on May 30, 2019, to his Twitter social media account of a sexual encounter involving himself and another person, without that person’s consent. It also alleged that while the appellant thereafter removed the video upon that person’s request, he again discovered that on September 12, 2019, that the appellant reposted the video.

Administrative Law JudgeIn her initial decision, the ALJ found that the appellant did post the aforementioned video without the other person’s consent. Ultimately, the ALJ found that the appellant was guilty of conduct unbecoming a public employee as well as violating all but one of the charged departmental policies.

Regarding the penalty, the ALJ recommended modifying the removal to a six- month suspension. Specifically, the ALJ stated:

Had Adams profited from these actions or identified himself as a police officer on social media, the offense would be more egregious . . . While police officers do not relinquish all First Amendment rights, a police department's legitimate interests permit speech restriction requiring a balancing of the employee’s interest with those of the employer only when the employee “speaks as a citizen upon matters of public concern.” (citation omitted). Here, Adams posts do not involve “matters of public concern.”

The ALJ further indicated that:

Notably, Newark urges that I consider Adam’s (sic) other disciplinary appeals in determining the appropriate penalty. Undeniably, Adams challenges the allegations, and those appeals remain pending. Yet, Newark is correct that consideration of pending disciplinary appeals is appropriate in determining the penalty here. (citation omitted).

AnalysisThe pending cases involve conduct occurring before the events following the May 30, 2019, sexual encounter. Still, all Newark’s charges relate to conduct occurring within a one-year period. While the pending charges also include conduct unbecoming, the nature of the offenses does not suggest a specific pattern of misconduct other than perhaps a disrespectful attitude. Newark rightly can insist on appropriate, respectful, and professional conduct of its officers. Further, the pending appeals note significant offenses within a short period and include a maximum suspension of ninety days. Regardless, no prior discipline occurred in the nearly five years before the pending charges or charges in this case.

Despite consent to engage in sexual relations and to recording the encounter, JB did not consent to posting the images or making the sexual act public. Undeniably, the misconduct occurred off-duty. Yet, I concluded that Adams’s actions concerning the May 30, 2019, images represent violations of multiple Rules, Order 15-02, and N.J.A.C. 4A:2- 2.3(a)(6). Moreover, Adams showed a lack of respect for JB’s privacy and welfare.

Even so, this is mostly a private matter between two adults without sufficient evidence of a crime or direct involvement with

Adams's position as a police officer . . . Accordingly, 1 CONCLUDE that bypassing progressive discipline is not warranted, termination is unreasonably harsh, and that Adams be suspended for the maximum period of six months instead.

While the Commission agrees with the ALJ’s conclusions regarding the charges, after its de novo review of the record in this matter, it does not agree that the removal should be modified to a six-month suspension. Rather, it finds that the only appropriate penalty in this matter is removal from employment.

In its exceptions, the appointing authority argues that the ALJ erred in recommending a modification to the removal. In this regard, it argues that based on the egregious nature of the offenses, that removal is the only appropriate penalty. It contends that the appellant inappropriately posted the video without the other person’s permission as well as subsequently threatened him. It also argues that the ALJ inappropriately applied the tenets of progressive discipline in this matter.

In determining the proper penalty, the Commission’s review is de nove. 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 sufficiently egregious to support the penalty of removal without consideration of progressive discipline. The ALJ appeared to focus more of the type of video and the appellant’s rights to engage in the activities and make such a video, than she did on the main reason for the discipline, which was violating the other individual’s trust and right to privacy. She also noted that the appellant's actions all occurred off-duty and without direct identification to his position. Regardless of the above, the fact is that the appellant, a Police Officer, posted the video without the other person’s consent on more than one occasion. These actions are an egregious violation of that person’s right to privacy. The nature of the activities in the video, or the appellant’s “right” to post it, in essence, are not relevant. As such, the ALJ’s references to “free speech” appear misplaced. In that regard, had the other person consented to the video's posting, it is more than likely that the appellant would not have faced any charges, or at the most, very minor ones. Thus, the Commission is not finding that the appellant could not have engaged in whatever legal consensual activities he wished to while off-duty. Nor is it even finding that he could not have posted the resultant video with consent to any public location so long as it did not run afoul of his employer's policies or was otherwise illegal. However, the Commission is finding it wholly inappropriate, and even outrageous, for the appellant to have posted the video without consent in public multiple times. This inexplicable lack of judgement on multiple occasions was exacerbated by the appellant’s additional communications with the other person which can only be seen as actual or veiled threats. These activities are, indeed, the definition of conduct unbecoming a public employee. This misconduct is even more egregious as the appellant is a Police Officer. It is recognized that a municipal Police Officer is a law enforcement employee who must enforce and promote adherence within to the law. Municipal Police Officers hold highiy visible and sensitive positions within the community and that the standard for an applicant includes good character and an image of the utmost confidence and trust. It must be recognized that a municipal Police Office is a special kind of employee. His primary duty is to enforce and uphold the law. He carries a service revolver on his person and is constantly called upon to exercise tact, restraint and good judgment in his relationship with the public. He represents law and order to the citizenry and must present an image of personal integrity and dependability in order to have the respect of the public. See Moorestown. v. Armstrong, 89 N.J. Super. 560, 566 (App. Div. 1965), cert. denied, 47 N.J. 80 (1966). See also In re Phillips, 117 N.J. 567 (1990). The appellant certainly violated the above standards.

Moreover, the Commission notes that the ALJ’s application of progressive discipline, even if it were appropriate in this case, was in error. As the ALJ indicated, the appellant had four previous major disciplinary actions within one year prior to the current infraction. These disciplines included a 15 working day suspension, a 30 working day suspension, a 45 working day suspension and a 90 working day suspension.! While the ALJ properly found that the prior disciplines could be considered, she concluded that they were for dissimilar conduct and thus, coupled with the misconduct in this matter, did not support removal from employment. She also noted that “no prior discipline occurred in the nearly five years before the pending charges or charges in this case.”2 The Commission

1 All of these matters are currently on appeal and pending at the Office of Administrative Law.

2 This statement appears inaccurate. The County and Municipal Personnel System indicates that the appellant was hired in September 2015. Additionally, the earliest incident underlying the appellant’s 15 working day suspension occurred in September 2018. Regardless, for the purposes of disagrees. A Police Officer with four major disciplines in such a short time period cannot seriously expect that the fifth serious infraction that warrants major discipline would carry any penalty short of removal. The fact that the prior disciplines were not for the same type of conduct is not determinative. More important is the fact that the appellant had demonstrated a consistent pattern of misconduct that cannot be tolerated given the above standards imposed upon Police Officers. As such, even if the Commission were to agree that the appellant’s current infractions were not so egregious to support removal absent the application of progressive discipline, it would find that applying that standard, removal is the only appropriate penalty.

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.