Steven Mitchell, CSC Docket No. 2020-2597

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BackgroundThe appeal of Steven Mitchell, Senior Correctional Police Officer, Mid-State Correctional Facility, Department of Corrections, removal, effective May 8, 2020, on charges, were heard by Administrative Law Judge Jeffrey N. Rabin (ALJ), who rendered his initial decision on August 9, 2023. Exceptions were filed on behalf of the appellant and a reply to exceptions was filed on behalf of the appointing authority.

AnalysisHaving considered the record and the ALJ's initial decision, and having made an independent evaluation of the record, including a thorough review of the exceptions and reply, the Civil Service Commission (Commission), at its meeting on September 20, 2023, adopted the ALJ’s Findings of Facts and Conclusions and his recommendation to uphold the removal.

Upon its de novo review of the ALJ’s thorough and well-reasoned initial decision as well as the entire record, including the exceptions filed by the appellant, the Commission agrees with the ALJ’s determinations regarding the charges, which were substantially based on his assessment of the credibility of the witnesses and the video of the incident in question. In this regard, the Commission acknowledges that the ALJ, who has the benefit of hearing and seeing the witnesses, is generally in a better position to determine the credibility and veracity of the witnesses. See Matter of J.W.D., 149 N.J. 108 (1997). “[T]rial courts’ credibility findings . . . are often influenced by matters such as observations of the character and demeanor of the witnesses and common human experience that are not transmitted by the record.” See also, In re Taylor, 158 N.J. 644 (1999) (quoting State v. Locurto, 157 N.J. 463, 474 (1999)). Additionally, such credibility findings need not be explicitly enunciated if the record as a whole makes the findings clear. Id. at 659 (citing Locurto, supra). The Commission appropriately gives due deference to such determinations. However, in its de novo review of the record, the Commission has the authority to reverse or modify an ALJ’s decision if it is not supported by sufficient credible evidence or was otherwise arbitrary. See N.J.S.A. 52:14B-10(c); Cavaliert u. Public Employees Retirement System, 368 N.J. Super. 527 (App. Div. 2004). In this matter, the exceptions filed by the appellant are not persuasive in demonstrating that the ALJ’s credibility determinations, or his findings and conclusions based on those determinations, were arbitrary, capricious or unreasonable. In this regard, the ALJ found the appointing authority’s witness credible. Moreover, the ALJ indicated the witness's testimony regarding the video of the incident was credible. In this regard, the ALJ noted that he also viewed the video multiple times, stating:

Major Abrams did not witness the Incident firsthand; his testimony centered on the rules and regulations allegedly violated by appellant.

Major Abrams, however, also offered credible narration of the video evidence proffered herein. Additionally, this court has been afforded opportunities to watch and review the video evidence, resulting in the above-referenced findings of additional fact.

Administrative Law JudgeThe ALJ made numerous detailed findings based on his assessment of the credible evidence, including the video, and presented logical and reasonable explanations for those findings. Upon its review, the Commission finds nothing in the record or the appellant’s exceptions, aside from what was noted previously, to question those determinations or the findings and conclusions made therefrom.

AnalysisSimilar to its assessment of the charges, the Commission’s review of the penalty 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.dJ. 500 (1962). In determining the propriety of the penalty, several factors must be considered, including the nature of the appellant’s offense, the concept of progressive discipline, and the employee’s prior record. George v. North Princeton Developmental Center, 96 N.J.A.R. 2d (CSV) 463. 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). 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. In this regard, the Commission emphasizes that a law enforcement officer is held to a higher standard than a civilian public employee. See Moorestown v. Armstrong, 89 N.J. Super. 560 (App. Div. 1965), cert. denied, 47 N.J. 80 (1966). See also, In re Phillips, 117 N.J. 567 (1990).

Clearly, the appellant’s egregious misconduct in this matter warrants removal from employment. As indicated by the ALJ:

Appellant’s actions during the Incident were particularly concerning because he had been given a refresher training on the proper use of force and de-escalation only four days prior to the Incident. I do not necessarily agree with respondent that appellant was completely ill- suited to the position of a CO but would agree with Major Abrams that misconduct such as appellant’s violated the public trust and could inhibit the ability of the Department to properly maintain order, trust, and confidence in its facilities.

The Commission wholeheartedly agrees that the appellant’s actions in this matter fall well short of what is expected of a law enforcement employee are more than deserving of removal from employment. As such, the Commission finds the penalty of removal neither disproportionate to the offenses nor shocking to the conscious.

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 appeals of Steven Mitchell.

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