Brian Pio, CSC Docket No. 2020-199

BackgroundThe appeal of Brian Pio, a County Correction Officer with the Salem County Sheriffs Office, of his removal effective July 19, 2019, on charges, was heard by Administrative Law Judge Jeffrey R. Wilson (ALJ), who rendered his initial decision on December 2, 2019. Exceptions were filed on behaif of the appellant and a reply to exceptions was filed on behalf of the appointing authority.

AnalysisHaving considered the record and the attached ALJ’s initial decision, and having made an independent evaluation of the record, the Civil Service Commission (Commission), at its meeting on January 15, 2020, did not adopt the ALd’s recommendation to uphold the removal. Rather, the Commission modified the removal to a six-month suspension and ordered that the appellant attend diversity training.

DISCUSSION

The appellant was charged with conduct unbecoming a public employee, violation of rules and regulations and other sufficient cause. Specifically, the appointing authority asserted that the appellant made harassing, racial comments towards co-workers. Upon the appellant’s appeal, the matter was transmitted to the Office of Administrative Law (OAL) for a hearing as a contested case.

Administrative Law JudgeThe ALJ set forth in his initial decision that on April 8, 2019, the appellant engaged County Correction Officer Shakyla Ellis in a conversation. The ALJ found that when the appellant overheard Ellis express interest in another position he advised her that she would not get the position because the County Correction

AnalysisSergeant in charge of booking was a racist. When Ellis expressed confusion with the statement as she was aware that an African-American female was working as a booking officer, the appellant stated to her that the reason she would not get the position was because that other officer was “Salem County Black” and that Ellis was “Black-Black” and had a “Black attitude.” Ellis testified that she was offended, surprised, shocked and taken aback by the appellant's comments. The appellant acknowledged stating to Ellis that the other officer was “Salem County Black” and that Ellis was “Black-Black.” The appellant tried to apologize when he realized he had offended Ellis.

Administrative Law JudgeThe ALJ concluded that the appellant’s behavior supported the charge of conduct unbecoming a public employee. In addition, the ALJ determined that the appellant’s comments rose to the level of harassment and violated Salem County Corrections rules and regulations on harassment, standards of conduct, respect, prohibited activity and civil rights. Further, the ALJ upheld the charge of other sufficient cause. In determining the penalty, the ALJ considered the testimony of nine witnesses who testified regarding the appellant’s character and job performance. The ALJ concluded that the appellant’s actions were so egregious as to justify his removal. The ALJ indicated that the appellant’s racially charged statements and his evasiveness to the investigator adversely affected morale and would tend to destroy public respect for the delivery of government services. Based on the foregoing, the ALJ determined that removal was the appropriate penalty.

AnalysisIn his exceptions, the appellant contends that his actions were not egregious enough to forego the principles of progressive discipline. The appellant argues that his conduct did not create a severe or pervasive hostile work environment. Additionally, the appellant claims that the ALJ failed to consider the lack of malice in his statement to Ellis or his 13 years of service in correctional facilities. Further, the appellant asserts that in cases such as Karins vs. Atlantic City, 152 N.J. 532 (1998), In the Matier of William Roberts (CSC, decided January 15, 2014) and In the Matier of Victor Bermudez, Docket No. A0590-17T1 (App. Div., decided May 2, 2019), those individuals used worse racial language such as the “n” word and none were terminated from their positions. Moreover, the appellant complains that the ALJ failed to find that he believed there was a “good ol boy system” at the Salem County Correctional Facility.

In its reply to the exceptions, the appointing authority argues that the ALJ properly determined that the appropriate penalty for the appellant’s action was removal. Additionally, it asserts that the instant matter can be differentiated from the cases cited by the appellant as in those instances, the incidents occurred either in heat of the moment situations or occurred off duty. In the present case, the appellant's inappropriate comments were uttered at work and during a casual conversation.

Upon its de novo review of the record, the Commission agrees with the ALJ's determination regarding the charges. However, the Commission does not agree with the ALJ's recommendation to uphold the removal. Rather, the Commission modifies the removal to a six-month suspension and orders diversity training. In reviewing the charges, the Commission notes that neither party challenges the ALJ's determination that all the charges against the appellant were upheld. The exceptions filed mostly concern the ALJ’s determination to uphold the penalty of removal,

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 N.-J. 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.dJ. at 579-80.

In the instant matter, the appellant had only one two-day suspension in his disciplinary history. The appellant had been employed as a County Correction Officer with Gloucester County since 2008 before receiving an intergovernmental transfer to Salem County in 2013. Given the actual incident in question, the Commission does not find removal to be appropriate under these circumstances. While the Commission finds that the appellant’s comments to Ellis were completely inappropriate and are not condoned, it does not agree that they were so egregious as to warrant removal without following the tenets of progressive discipline. The Commission notes that the appellant was not in a supervisory role when speaking to his co-worker and the inappropriate comments were made in a singular incident. Further, the appellant apologized for his comments. Moreover, while the Commission notes that a law enforcement officer is held to a higher standard than a civilian public employee per Moorestown v. Armstrong, 89 N.J. Super. 560 (App. Div. 1965), cert. dented, 47 N.J. 80 (1966) and In re Phillips, 117 N.J. 567 (1990), the comments made in the context of this particular matter are not so egregious as to ignore the tenets of progressive discipline. Accordingly, the Commission imposes a six-month suspension on the appellant and orders that he attend diversity training. However, the Commission recognizes that appellant’s conduct is unacceptable and emphasizes that, in imposing a six-month suspension, the most severe penalty permitted in lieu of removal, it is not acting to minimize the seriousness of the offense. The Commission is mindful that this penalty should serve as a warning to the appellant that future offenses may result in his removal from employment.

As the removal has been modified, the appellant is entitled to back pay, benefits and seniority for the period after the imposition of the six-month suspension up to his date of reinstatement. With regard to counsel fees, since the appellant has not prevailed on the primary issues on appeal, he is not entitled to an award of counsel fees. See NJAC. 4A:2-2.12. 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. 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 the case at hand, while the penalty was modified, all the charges were upheld and major discipline was imposed. Consequently, as the appellant has failed to meet the standard set forth in N.J.A.C. 4A: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, 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. In the interim, as the court states in Phillips, supra, the appointing authority shall immediately reinstate the appellant to his permanent position.

ORDER

The Civil Service Commission finds that the appointing authority's actions in removing the appellant was not justified. Therefore, the Commission modifies the removal to a six-month suspension and orders that the appellant attend diversity training. The Commission further orders that the appellant be granted back pay, benefits and seniority for the period after the imposition of the six-month suspension through the date of his actual reinstatement. 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, 4A4:2-2.10, 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 resolution of any potential back pay dispute.

Counsel fees are denied pursuant to N.d.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 wil] assume that all outstanding issues have been amicably resolved by the parties and this decision shall become a final administrative determination pursuant to #. 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.