Jose Lopez, CSC Docket No. 2021-1133

BackgroundThe appeal of Jose Lopez, Senior Correctional Police Officer, Northern State Prison, Department of Corrections, removal, effective January 19, 2021, on charges, was heard by Administrative Law Judge Jude-Anthony Tiscornia (ALJ), who rendered her initial decision on August 28, 2024. Exceptions were filed on behalf of the appointing authority and a reply to exceptions was filed on behalf of the appellant.

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 July 3, 2024 adopted the ALJ’s Findings of Facts and Conclusions of Law and his recommendation to reverse the removal.

The Commission makes the following comments. The burden of proof in a disciplinary matter is on the appointing authority to show by a preponderance of the credible evidence in the record that the proffered charges are sustainable. For the reasons expressed by the ALJ in the initial decision, the Commission agrees that the appointing authority has fallen short of this burden in this matter.

In this regard, the appointing authority’s exceptions that the appellant was required to administer Narcan based on the testimony of its witnesses as well as its policies is unavailing. Indeed, in its exceptions it indicates the testimony of the facility's Training Lieutenant was: “if an inmate is non-responsive an officer should administer Narcan in case it is an opioid overdose . . . If an officer encounters an inmate who is not responsive, but unsure whether they are breathing, the officer has to make that assessment” (emphasis added). The Commission interprets the above not as an absolute that Narcan must be administered where an inmate is not responsive but breathing, as was the case here as the exceptions state that the

Lieutenant at the scene told the investigator that the inmate was “breathing and unresponsive, that he was mumbling words and ‘not making sense’.” More telling is the fact that this Lieutenant did not testify, where he could have confirmed that it would have been inappropriate for the appellant not to have administered Narcan based on the circumstances. Additionally, he apparently did not tell the investigator that he ordered the appellant to administer Narcan upon his arrival on the scene. Without such testimony, especially from a direct supervisory witness to the incident, the Commission cannot conclude that the appellant’s inaction regarding Narcan was a violation. In fact, further information provided by that Lieutenant to the investigator belies the appointing authority's position that the appellant, as first to respond, should have administered Narcan. Specifically, according to the exceptions, the Lieutenant told the investigator that even upon the inmate being taken from the cell, he did not initially administer or order the use of Narcan, but rather, upon the suggestion of a later arriving Sergeant that Narcan should be used, it was administered. Clearly, if the ranking Lieutenant on the scene was not sure that Narcan needed to be administered, it is difficult to conclude that the appellant’s non- administration upon arrival is worthy of sanction.

Further, the Commission rejects the appointing authority's exceptions arguing that the ALJ’s lack of a full recitation of the charges is indicative of his error in not finding that such charges were sustained. The ALJ clearly stated the charges in the procedural history section, including those that fall under Title 4A of the New Jersey Administrative Code, including the charge of Other Sufficient Cause, under which violations of departmental policy and procedure are subsumed. The fact that the ALJ did not identify or specifically address each such alleged violations does not equate to ignorance of those charges or establish that there was credible evidence presented sufficient to sustain such charges. Significant in this regard, again, 1s information provided by the Lieutenant on the scene to the investigator. In its exceptions, the appointing authority indicated the Lieutenant stated to the investigator that he was not sure if the inmate “had an injury and did not want to move [the inmate] until medical staff arrived on scene.” The Lieutenant further stated to the investigator that he “gave custody staff an order to move [the inmate], but only after medical staff advised them to do it.” Given the above, it is unreasonable to conclude that the appellant failed to administer aid, when the Lieutenant on scene ordered staff not to move the inmate, and as previously discussed, did not administer or order Narcan to be administered until after suggestion from a subordinate Sergeant.

Since the removal has been reversed, the appellant is entitled to be reinstated with mitigated back pay, benefits, and seniority pursuant to N.d.A.C. 4A:2-2.10 from the first date of separation without pay until the date of reinstatement. Moreover, as the removal has been reversed, the appellant is entitled to reasonable counsel fees pursuant to N.J.A.C, 4A:2-2.12.

This decision resolves the merits of the dispute between the parties concerning the disciplinary charges and the penalty imposed by the appointing authority.

However, per 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 or counsel fees are finally resolved. In the interim, as the court states in Phillips, supra, if it has not already done so, upon receipt of this decision, the appointing authority shall immediately reinstate the appellant to his position.

ORDER

The Civil Service Commission finds that the action of the appointing authority in removing the appellant was not justified. The Commission therefore reverses that action and grants the appeal of Jose Lopez. The Commission further orders that the appellant be granted back pay, benefits, and seniority from the first date of separation without pay until the date of 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.

The Commission further orders that counsel fees be awarded to the attorney for the appellant pursuant to N.J.A.C. 44:2-2.12. An affidavit of services in support of reasonable counsel fees 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 and N.J.A.C. 4A:2.12, the parties shall make a good faith effort to resolve any dispute as to the amount of back pay and counsel fees. However, under no circumstances should the appellant's reinstatement be delayed pending resolution of any potential back pay or counsel fee dispute.

The parties must inform the Commission, in writing, if there is any dispute as to back pay or counsel fees 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 shall be pursued in the Superior Court of New Jersey, Appellate Division.