John T. Arrington, CSC Docket No. 2021-1854

BackgroundThe appeal of John T. Arrington, a Senior Correctional Police Officer, with the Edna Mahan Correctional Facility for Women, Department of Corrections, of his removal, effective May 19, 2021,! on charges, was heard by Administrative Law Judge Judith Lieberman (ALJ), who rendered her initial decision on January 30, 2026. Exceptions were filed on behalf of the appointing authority, and a reply was 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, including a thorough review of the exceptions and reply, the Civil Service Commission (Commission), at its meeting on February 25, 2026, adopted the ALJ’s Findings of Fact and Conclusions of Law as contained in the ALJ’s initial decision and her recommendation to modify the removal to a six-month suspension.

Administrative Law JudgeIn this matter, the ALJ found that the appellant was guilty of the misconduct alleged and upheld the underlying charges of conduct unbecoming a public employee, other sufficient cause, and violations of departmental rules and regulations. Upon its de novo review, the Commission agrees with the ALJ’s findings and finds nothing in the record to demonstrate that the ALJ’s findings regarding the charges were arbitrary, capricious or unreasonable.

Analysis1 The Final Notice of Disciplinary Action, which made the appellant’s removal effective, was issued on May 19, 2021. However, he was served with a Preliminary Notice of Disciplinary Action on April 6, 2020, seeking his removal. Agency records indicate that he began an immediate suspension on April 9, 2020.

Similar to its assessment of the 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 uv. 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).

In this matter, in recommending that the removal be modified to a six-month suspension, the ALJ performed an analysis of the penalty to be imposed. In that regard, the ALJ found several mitigating factors to modify the penalty, such as, there was “limited to no specific evidence” that the appellant used or possessed his cell phone but for his admission; no harm resulted to others or the facility based on the appellant’s use of the cell phone; and testimony that “it would not be problematic” if an officer accidently brought a cell phone into the facility before the shift started and returned it before their shift started. Further, the appellant was a long-time employee, who was appointed in 2001, and his disciplinary history consisted of only minor discipline of a written reprimand, a three-day suspension, and a five-day suspension, where his last discipline was in 2003. Moreover, the appellant’s prior discipline was not related to contraband.

In its exceptions, the appointing authority argues that the appellant's admission that he improperly possessed and used a cell phone while on duty necessitated his removal based upon long-established precedent which the ALJ ignored, and the ALJ’s reliance on progressive discipline was misplaced. Additionally, the appointing authority contends that the ALJ erred in requiring that a showing that harm resulted from the appellant’s conduct. Moreover, the appointing authority believes that it is not relevant that there was testimony that a Correctional _ - Police Officer who accidentally brought a cell phone into the facility and returned it prior to the start of the shift would not be problematic because, in this case, the appellant admitted to using his cell phone while on duty. Further, the appointing authority presents that there was other testimony that the appointing authority’s policies do not distinguish between accidentally and purposefully bringing in a cell phone into the facility. Additionally, the appointing authority states that the ALJ failed to consider the danger posed by the appellant’s admitted possession and use of a cell phone in the facility. Finally, the appointing authority asserts that the ALJ improperly banned it from presenting evidence it had collected regarding the appellant’s cell phone usage while on duty.

However, while the appointing authority believes the removal should be upheld, the Commission finds support for the modification to a six-month suspension. In this regard, while the appellant's misconduct violated the appointing authority’s policy, the record does not indicate that the appointing authority had a clear policy that mandated removal for using a cell phone while in the facility. Rather, the testimony indicates that the charges that were issued against the appellant could lead to removal, even for a first offense. In fact, there was testimony by a lieutenant that if an officer accidentally brought a cell phone into the facility and returned it before the shift started, it would not be problematic, which further confirms that a violation of the cell phone policy would not result in an automatic removal of an officer. Moreover, instead of pointing to a policy that would mandate removal, the appointing authority highlights prior Commission decisions as “precedent” for its assertion. However, each case is decided on its own unique facts. Consequently, it is appropriate for the Commission to consider progressive discipline. In this case, the mitigating factors, as articulated by the ALJ and stated above, justify modifying the appellant’s removal to a six-month suspension.

Referencing the appointing authority's argument that it should not have been barred from presenting evidence regarding the appellant’s cell phone usage while on duty, as noted by the appellant’s reply, the ALJ, in her December 14, 2023 Order on Cross-Motions for Summary Decision, found that the cell phone records concerning the appellant’s usage were insufficient to determine the penalty. In this regard, the ALJ explained that the cell phone records were not accompanied by an affidavit explaining how they were to be read and interpreted; the appointing authority did not produce an affidavit documenting when the appellant was on duty and not on break during the relevant time; and the appellant stated during his interview that, on at least some occasions, he immediately returned his cell phone to his car when he realized that he had inadvertently carried it into the facility. Moreover, even if the appellant had possessed and used his cell phone in the facility on more than one occasion, based on the mitigating factors, the Commission finds that a six-month suspension is the appropriate penalty. With that said, the Commission is not minimizing the misconduct as it was clearly inappropriate. As such, a six-month suspension, the most severe suspension permitted under Civil Service law and rules, should serve as a warning to the appellant that any future misconduct could result in his removal from employment.

Since the removal has been modified, the appellant is entitled to be reinstated to his position with mitigated back pay, benefits, and seniority pursuant to N.J_A.C.

4A:2-2.10 from six months after the first date of disciplinary separation without pay until the date he is reinstated.

However, the appellant 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 a disciplinary appeal is the merits of the charges. See Johnny Walcoti 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). Thus, where, as here, a penalty is modified but charges are sustained and major discipline is imposed, counsel fees must be denied since the appellant has failed to meet the standard set forth at 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 decision of the Superior Court of New Jersey, Appellate Division, 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. 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 permanent position.

One more issue needs to be addressed. In In the Matter of John Arrington (CSC, decided April 28, 2021), the appellant requested interim relief regarding his then pending discipline. Per the 180-day rule, the Commission ordered that the appellant receive his base pay from October 15, 2020 to his reinstatement. As the Commission ordered that the appellant receive base pay, such pay is not subject to mitigation. See In the Matter of Ryan Marsh (CSC, decided February 17, 2021). It would appear that the appointing authority has already restored the appellant to pay status and he is receiving his base pay until his reinstatement. However, if there is any back pay due to the appellant that is not covered during the base pay period already awarded by the Commission, that back pay would be subject to mitigation.

ORDER

The Civil Service Commission finds that the action of the appointing authority in removing the appellant was not justified. The Commission, therefore, modifies that action to a six-month suspension.

The Commission orders that the appellant be immediately reinstated to his permanent position and receive back pay, benefits, and seniority following six months after the date of disciplinary separation without pay to the date of reinstatement for any period he was not in pay status pursuant to N.Jd.S.A. 40A:14-201. 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..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 resolution of any potential back pay dispute.

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