Efrain Martinez, CSC Docket No. 2021-1136

BackgroundThe appeal of Efrain Martinez, Police Officer, Clifton, Department of Public Safety, 90 working day suspension, on charges, was heard by Administrative Law Judge Ernest M. Bongiovanni (ALJ), who rendered his initial decision on December 15, 2022. 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 February 1, 2028, adopted the ALJ’s Findings of Facts and Conclusion and his recommendation to modify the 90 working day suspension to a five working day suspension.

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 appointing authority, the Commission agrees with the ALJ’s determinations regarding the charges, which were substantially based on his assessment of the credibility of the witnesses. 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.d. 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); Cavalieri u. Public Employees Retirement System, 368 N.J. Super. 527 (App. Div. 2004). In this matter, the exceptions filed by the appointing authority 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. As such, the Commission has no reason to question those determinations or the findings and conclusions made therefrom.

Similar to its review of the underlying charges, the Commission’s review of the penalty is 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.-J. 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.Jj.A.R. 2d (CSV) 463.

In this matter, the Commission agrees with a reduction of the penalty. Clearly, the infraction committed, for a Police Officer, is serious and worthy of a suspension. Specifically, the appellant was found guilty of failing to keep identifying information of a citizen attempting to report a purported crime. The fact that the report was ultimately invalid does not make the appellant’s failure any less serious. Nevertheless, for the reasons expressed by the ALJ, the five working day suspension is appropriate. Further, apparently underlying the ALJ’s reasoning was that since the infraction, the appellant’s performance improved. The Commission notes that aside from penalizing an employee for misconduct, discipline short of removal should be remedial. In the appellant’s case, it appears that the originally imposed 90 working day suspension may have had that desired effect. While that penalty has been significantly reduced, the five working day suspension should continue to serve as aclear warning to the appellant that further misconduct could lead to more severe disciplinary penalties.

Since the suspension has been modified, the appellant is entitled to 85 working days of mitigated back pay, benefits, and seniority pursuant to N./.A.C. 4A:2-2.10. However, he is not entitled to counsel fees. N.J.A.C. 4A:2-2.12(a) provides for the award of counsel fees 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 the disciplinary appeal is the merits of the charges. See Johnny Walcott v. City of Plainfield, 282 N.J. Super. 121,128 (App. Div. 1995): 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, although the penalty was modified by the

Commission, charges were sustained, and discipline was imposed. Consequently, as appellant has failed to meet the standard set forth at 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.

ORDER

The Civil Service Commission finds that the action of the appointing authority in suspending the appellant was justified. The Commission therefore modifies that action to a five working day suspension. The Commission further orders that the appellant be granted 85 working days of back pay, benefits, and seniority. 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.JA.C. 4A:2-2.10, the parties shall make a good faith effort to resolve any dispute as to the amount of back pay.

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