Kevin Gonzalez, CSC Docket No. 2020-705

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BackgroundThe appeal of Kevin Gonzalez, a Senior Correctional Police Officer with Northern State Prison, Department of Corrections, of his removal, effective August 21, 2019, on charges, was before Administrative Law Judge Barry E. Moscowitz (ALJ), who rendered his initial decision on June 11, 2021. Exceptions were filed on behalf of the appointing authority.

AnalysisHaving considered the record and the attached ALJ's initial decision, including viewing the video of the including and having made an independent evaluation of the record, the Civil Service Commission (Commission), at its meeting on July 19, 2021, did not adopt the ALJ’s recommendation to reverse the removal. Rather, the Commission modified the removal to a 90 working day suspension.

DISCUSSION

The appellant was served with a Final Notice of Disciplinary Action removing him from employment, effective August 19, 2019, on charges of neglect of duty, conduct unbecoming a public employee, other sufficient cause, and violations of departmental rules and regulations. Specifically, the appointing authority asserted that the appellant used inappropriate physical force against an inmate, failed to call a code and failed to write a report documenting the incident as required. Regarding the use of force, the appointing authority alleged that the appellant punched an inmate where no cause was present. Upon the appellant’s appeal to the Commission, the matter was transmitted to the Office of Administrative Law for a hearing as a contested case.

On November 4, 2019, prior to any hearings being held, the appointing authority filed a motion for summary decision, arguing that no genuine issue of material fact existed and that it should prevail as a matter of law. Upon review of the parties’ written submissions, the documentation presented, including certifications of witnesses, and a video recording of the alleged incident, the ALJ agreed that the matter was ripe for summary decision. Specifically, the ALJ found that the appellant did not violate any regulations, policies or procedures regarding the use of force against the inmate. However, the ALJ determined that the appellant should have called a Code 33, a code that must be made when force is used. Additionally, the appellant should have handcuffed the inmate pursuant to policy. Consequently, the ALJ indicated that both the appointing authority and the appellant were entitled to prevail as a matter of law. Thus, the ALJ granted the appointing authority's motion for summary decision in part and recommended that the appellant’s removal be modified to a reprimand with back pay, seniority, and counsel fees. Upon its de novo review, the Commission did not adopt the ALJ’s recommendation. Rather, the Commission remanded the matter for a full hearing. See In the Maiter of Kevin Gonzalez (CSC, decided March 12, 2020).

On remand, the ALJ recommended dismissing all the charges and reversing the removal. For the use of force charge, the ALJ indicated that based on his review of the video of the incident as well as the testimony presented, including that of the appellant, that the physical force exerted was warranted as the inmate was “noncompliant for a protracted period of time” and “refused to follow directions and orders and his threatening behavior persisted.” The ALJ also dismissed the charge underlying the appellant’s failure to call a code finding, in essence, that since the appellant did not have a radio during the incident, he could not have called a code. Finally, the ALJ dismissed the charge that the appellant did not file a report on the incident finding that as the appellant was not directed to submit a report, he was not required to do so.

In its exceptions, the appointing authority argues that the ALJ's interpretation of the video of the incident was unreasonable. It also argues that the ALJ misinterpreted both the policy behind the appellant’s requirement to call a code and write a report about the incident.

Upon its de novo review of the record, the Commission disagrees with the ALJ regarding the charges underlying the appellant’s use of force and his failure to write a report. However, it will not disturb the ALJ’s dismissal of the charge that the appellant did not call a code. 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. Jd. 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); Cavalieri v. Public Employees Retirement System, 368 N.J. Super. 527 (App. Div. 2004). In this matter, there is ample evidence in the record to demonstrate that the ALJ’s findings regarding the appellant’s use of force were arbitrary, capricious and unreasonable.

In this regard, while the ALJ did not specifically identify the appellant’s testimony as credible, he clearly credited the appellant’s testimony regarding his perception as to the threat imposed by the inmate. However, this testimony is completely belied by the video of the incident. One does not need to be an expert in corrections to view the video of the incident and reasonably conclude that the inmate made absolutely no overt physical movements that could be construed as threatening, especially no such movements that would warrant such a physical response. The Commission’s review of the video indicates that the inmate does appear to be agitated and gesturing with his hands, however, it appears to be the other officer, who first strikes the inmate, that is most animated, gesturing with his hands and moving back and forth in front of the inmate, prior to his lunging forward and striking the inmate in the stomach. Conversely, the inmate is leaning against the caged enclosure and does not move forward in a threatening manner. Further, for nearly the entire incident, the appellant is clearly seen in a somewhat relaxed posture, leaning against one hand on the caged enclosure. In fact, the appellant only lowers his hand from that position while striking the inmate and immediately thereafter replaces it and reestablishes his relaxed leaning posture on the caged enclosure. In this regard, the video indeed illustrates that the initial officer's punch as well as the appellant’s punch could not be construed as anything but gratuitous and unnecessary. While there is no audio, the axiom that “a picture is worth a thousand words” certainly applies in this matter. Upon viewing the video, the Commission cannot fathom how the ALJ could have reasonably concluded that the appellant’s testimony regarding the threat imposed by the inmate was credible or that the use of force was appropriate. In that regard, the Commission finds, based specifically on its viewing of the video, that the AL.J’s finding that the appellant’s use of force against the appellant was appropriate, arbitrary, capricious and unreasonable and not supported by sufficient credible evidence. Accordingly, it rejects that finding. As such, the Commission upholds the charges associated with that action.

Administrative Law JudgeRegarding the appellant's failure to write a report, the ALJ essentially found that such a report was not necessary unless the appellant was ordered to write a report. The Commission finds this interpretation of the appointing authority’s report policy to be in error. The policy specifically states that for an “unusual incident”:

A staff member who witnessed or was involved in an unusual incident or event shall document the incident or event via a written Special Custody Report. Unusual incidents include, but are not limited to... use of force . .

AnalysisThus, the Commission finds that it was mandatory for the appellant to have written a report of the incident in question. In this regard, it rejects the ALJ’s interpretation that a later section stating that reports must be submitted “as directed by supervisory staff’ alleviates an officer from having to write a report. That section clearly refers only to the timeframes upon which reports are required, not as to the necessity of the report. Regardless, that section later states that “The procedures outlined in this IMP cannot cover every possible situation that may arise... In the event of uncertainty or doubt you are to contact the Shift Commander for instructions.” Thus, even if not ordered to write a report for such an unusual incident, an officer should at least have sought further instructions. Accordingly, the Commission upholds the charge that the appellant failed to submit a report of the incident.

Administrative Law JudgeThe ALJ dismissed the charge that the appellant did not call a code, even though the appellant acknowledged that he should have, based on his finding that the appellant did not have a radio during the incident. This finding is apparently based on the appellant’s testimony to that affect. In its exceptions, the appointing authority contends that the appellant’s radio can be clearly seen on the video of the incident. Upon its review of the video, the Commission cannot be sure, and thus finds that the preponderance of the evidence supports that the appellant did not have a radio during the incident and thus, could not have called a code. Therefore, he is not guilty of the associated charge.

AnalysisIn determining the proper penalty, the Commission’s review 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.eJ. 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 NJ. 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.dJ. 474 (2007).

In this case, the appellant's actions are clearly serious, especially in a correctional setting. In this regard, even when a Senior Correctional Police Officer does not possess a prior disciplinary record after many unblemished years of employment, the seriousness of an offense occurring in the environment of a correctional facility may, nevertheless warrant the penalty of removal where it compromises the safety and security of the institution, or has the potential to subvert prison order and discipline. See Henry, supra, 81 N.J. at 579-80. In this regard, the Commission emphasizes that a Senior Correctional Police Officer is a law enforcement officer who, by the very nature of his job duties, is held to a higher standard of conduct than other public employees. 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). Notwithstanding the above, the Commission finds the following mitigating factor in not imposing removal. While the appellant’s actions should not have occurred and were clearly inappropriate, given that his punch was in response to the initial officer's punch, it is at least arguable that the appellant felt that force was necessary at that point to subdue the inmate. Given this circumstance, the Commission finds that removal would not be warranted for the appellant’s use of force. Further, while the appellant’s failure to properly report the incident was also a serious infraction, such an infraction is normally insufficient, absent a significant prior disciplinary history, to support the penalty of removal. Accordingly, the Commission finds that, while it does not condone the appellant’s behavior in any way, the appropriate penalty in this matter is a 90 working day suspension. This penalty should impress upon the appellant that any future infraction may lead to more significant disciplinary penalties, up to removal from employment.

Since the penalty has been modified, the appellant is entitled to back pay, benefits and seniority 90 working days from the first date of his separation to the actual date of his reinstatement. See N.J.A.C. 4A:2-2.10. However, the appellant is not entitled to counsel fees. Pursuant to N.J.A.C. 4A:2-2.12(a), an award of counsel fees is appropriate 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 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. Mar. 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 case, the Commission has sustained charges and imposed major discipline. Therefore, the appellant has not prevailed on all or substantially all of the primary issues of the appeal. Consequently, as the appellant has failed to meet the standard set forth at N.J.A.C. 4A:2-2.12(a), 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. In light of the Appellate Division’s decision in Dolores Phillips v. Department of Corrections, Docket No. A-5581-01T2F (App. Div. February 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 pending any dispute as to the amount of back pay.

ORDER

The Civil Service Commission finds that the action of the appointing authority in removing the appellant was not justified. The Commission therefore modifies the removal to a 90 working suspension. The Commission further orders that the appellant be granted back pay, benefits and seniority as specified above. The amount of back pay awarded is to be reduced and mitigated as provided for in N.J.A.C. 44:2-2.10. 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. 4A: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 any dispute as to the amount of back pay.

Counsel fees are denied pursuant to N.eJ.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 should be pursued in the Superior Court of New Jersey, Appellate Division.