Brian Pio, CSC Docket No. 2020-2193

BackgroundThe appeal of Brian Pio, a County Correctional Police Officer with the Salem County Sheriffs Office, of his removal effective July 19, 2019, on charges, was heard on remand by Administrative Law Judge Jeffrey R. Wilson (ALJ), who rendered his initial decision on March 10, 2022. Exceptions were filed on behalf of the appellant.

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 April 27, 2022, adopted the ALJ’s Findings of Fact as set forth in the initial decision. Based on those findings, the Commission reaffirmed its January 15, 2020, decision modifying the appellant’s removal to a six- month suspension. See In the Matter of Brian Pio (CSC, decided January 15, 2020) (Pio J).

DISCUSSION

The main issue in this matter is whether the additional evidence presented by the appointing authority was sufficient for the Commission to reconsider its reduction of the penalty in Pio I. In this regard, the Commission granted the appointing authority’s request for reconsideration of Pio J, where it presented new evidence it purported to be germane to the penalty imposed on the appellant. See In the Matter of Brian Pio (CSC, decided July 29, 2020) (Pio I). In that determination, the Commission remanded the matter to the Office of Administrative Law (OAL) to allow the ALJ to conduct additional fact-finding on the new evidence.

At the OAL, and per Pio II, the ALJ permitted the testimony of two individuals who reported an allegation that a newly admitted inmate had made a threat against the appellant as he believed the appellant was racist based on the underlying incident from Pio I. The ALJ thereafter forwarded his findings to the Commission for review.

The Commission has thoroughly reviewed the ALJ’s initial decision and finds that the new evidence does not change its opinion that the proper penalty for the appellant’s infraction was a six-month suspension. The fact that one inmate may have somehow found out that the appellant had made racial comments, and thereafter, issued a verbal threat based on those comments, is insufficient to find that the originally imposed six-month suspension was inappropriate. In this regard, as indicated in Pio I, based on the appellant’s minor disciplinary history as well as his more that 10 years of service, removal for the infraction was not appropriate. Specifically, the Commission stated that while the appellant’s comments to the inmate “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.” While the new evidence certainly raises safety and security concerns, the appointing authority is equipped to deal with such inmate threats for myriad allegations, and that evidence by itself does not disqualify the appellant from employment nor place him or the facility in such a tenuous position as to call for his removal absent the actual misconduct calling for that penalty. Moreover, along with the reduced penalty, the Commission ordered the appellant to undergo diversity training. Per the unrefuted exceptions in this matter, he has completed that training and there have been no further incidents for the approximately 18 months since the appellant’s reinstatement. Finally, as indicated in Pio I, 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.

ORDER

The Civil Service Commission reaffirms its January 15, 2020, determination that the appointing authority’s action in removing the appellant was not justified. Therefore, the Commission modifies the removal to a six-month suspension.

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