Robert Pharo, CSC Docket No. 2021-37

BackgroundAtlantic County, represented by Jennifer P. Starr, Esq., requests reconsideration1 of the attached decision, In the Matter of Robert Pharo (CSC, decided May 20, 2020), which modified Pharo’s removal to a 45 working day suspension.

As background, on August 18, 2019, Pharo contacted his supervisor and indicated that he had witnessed two inmates commit a facility rules violation. Subsequently, the supervisor instructed Pharo to submit a disciplinary action report pertaining to the incident. Pharo refused to submit such report as he believed the inmate would retaliate against him and harm his family. Pharo’s belief was based on the inmate’s criminal history, despite that the inmate did not verbally threaten him. Pharo was also instructed to write a separate report indicating what he had witnessed, and provided an explanation within that report indicating the reasons why he did not want to submit the disciplinary action report, which Pharo also refused to submit. Pharo was charged with neglect of duty, incompetency, inefficiency and failure to perform duties, insubordination, inability to perform duties, violations of rules and regulations, and other sufficient cause, and removed from service effective August 28, 2019. Pharo appealed and the matter was transferred to the Office of Administrative Law (OAL) as a contested case. After a hearing, the Administrative Law Judge (ALJ) determined that the charges were sustained. The ALJ in discussing the penalty, noted that Pharo did not have any disciplinary history. The ALJ also noted that Pharo was seeking a second chance and promised that he would not exhibit such behavior again as his behavior was irrational. The ALJ found that Pharo witnessed a blatant minor violation and he ignored the incident as he believed that by doing so he was protecting himself and his family from retaliation. As a result, he refused to submit the disciplinary action report and, although he eventually submitted the incident report, the contents of the incident report contained false information. As such, the ALJ determined that Pharo’s behavior jeopardized the safety and security of the workplace. Accordingly, the ALJ recommended upholding the removal. Upon its de novo review, the Civil Service Commission (Commission) did not uphold the removal. Rather, the Commission modified the removal to a 45 working day suspension. In the prior matter, the Commission determined that mitigating factors warranted a lesser penalty, as Pharo had no prior disciplinary history, and all involved agreed that his conduct was aberrational as there were no similar incidents throughout his 13 years of employment. Additionally, the Commission warned Pharo that the 45 working day suspension was significant and in no way minimized his behavior and that any future similar infractions would support a disciplinary penalty up to and including removal.

1 Atlantic County also requested a stay of the Commission’s decision. However, since the Commission is deciding the request for reconsideration on the merits, the request for a stay is moot.

Appellant's argumentIn its request to the Commission, the appointing authority asserts that the only issue to be considered was the appropriate penalty. The appointing authority contends that Pharo, who possesses 13 years of experience, was fearful of an inmate and was concerned the inmate would harm him and his family.2 The appointing authority explains that Pharo’s concerns were based on the inmate’s criminal background, despite that the inmate did not make any actual threats.3 Further, the appointing authority states that Pharo failed to provide an explanation for his refusal to provide a disciplinary action report. The appointing authority adds that, not only did Pharo fail to include his reasons for not writing the disciplinary report, but he provided incorrect information in the reports.4 The appointing authority explains that because Pharo witnessed the inmate commit a violation, he was required to complete and submit a disciplinary action report, and such report is used to provide notice of the charges to the inmate. The appointing authority adds that the incident report documents any observations and actions taken by County Correctional Police Officers that occurred at the time of a particular incident. As such, the appointing authority states that Pharo’s inability to submit the reports constitutes a threat to the safety of the facility, which is sufficient reason to terminate him. As such, the appointing authority explains that it properly removed Pharo, as he failed to perform his duties by submitting the required reports and his actions threatened the security of the facility.

2 Pharo witnessed a male inmate kiss a female inmate, which is a violation of facility rules. 3 The charges that involved the inmate included gang affiliation and murder charges. 4 Pharo used the wrong incident number, wrong inmate name, and failed to name any inmates who would allegedly subject him to retaliation in his report.

Appointing authority's argumentIn addition, the appointing authority argues that a clear material error occurred in the prior decision, as the Commission failed to distinguish between two types of relevant reports, ignored material facts, treated the incident as mere insubordination, and incorrectly determined that the concept of progressive discipline was applicable to the matter. Specifically, the appointing authority asserts that the Commission failed to distinguish between the disciplinary action report and the incident report. Rather, it states that the Commission only acknowledged in the prior matter that Pharo failed to write the required reports. As such, the appointing authority contends that the Commission failed to recognize that termination was the appropriate penalty, as it did not have a full understanding of the matter. The appointing authority explains that because Pharo witnessed the inmate commit a violation, he was required to complete and submit a disciplinary action report, as such report is used to issue the charges and provide notice to the inmate. The appointing authority adds that the incident report documents any observations and actions taken by County Correctional Police Officers that occurred at the time of a particular incident.

The appointing authority also contends that the Commission erred by concluding that the refusal to write such reports did not jeopardize the safety of the facility, as Pharo’s supervisors were aware of his activity. The appointing authority states that it is difficult to comprehend that the severity of the infraction in this matter was minimized in the prior decision, and it appears that the Commission was analogizing it to mean that it is acceptable for an employee to shirk their assigned duties so long as someone else knows that an incident occurred.5 The appointing authority adds that the incident was recorded on camera, which Pharo admitted was the reason why he decided to report the matter to a supervisor. As such, the appointing authority argues that it is reasonable to conclude that, if the incident was not recorded on camera, Pharo would not have reported it to a supervisor. The appointing authority contends that there is a risk that the inmate will commit additional infractions given Pharo’s failure to hold him accountable. The appointing authority adds that the fact that the inmate was ultimately charged by a superior officer does not alleviate the risk that such refusals to act will result in a disorderly facility.

The appointing authority further asserts that the Commission erred in concluding that the conduct was aberrational and was not a liability to the facility. The appointing authority states that, although Pharo does not have any prior disciplinary history, it also is concerned that he was genuinely afraid of the inmate. It adds that his current willingness to perform his duties appears to be self-serving so that he can be restored to his position. The Commission ignores that Pharo’s refusal to perform his duty was not just limited to one day, as he held the ongoing belief that the inmate would harm his family. The appointing authority cannot risk the safety of the facility on the self-serving basis that Pharo will complete his duty next time. The appointing authority asserts this matter goes beyond a simple finding of insubordination, but rather, the primary concern is Pharo’s inability to perform his duties. As such, the Commission failed to consider the severity of the infraction. Pharo’s fears cannot be cured by the 45 working day suspension, and as such, his removal should be effectuated.

5 The appointing authority contends that it appears that the Commission is acknowledging that it is appropriate to “pass the buck.”

Despite being provided with the opportunity, Pharo did not provide a response.

CONCLUSION

RuleN.J.A.C. 4A:2-1.6(b) sets forth the standards by which the Commission may reconsider a prior decision. This rule provides that a party must show that a clear material error has occurred or present new evidence or additional information not presented at the original proceeding which would change the outcome of the case and the reasons that such evidence was not presented at the original proceeding. It is noted that the burden of proof is on the appellant to provide information in support of her case. See N.J.S.A. 11A:2-6(b) and N.J.A.C. 4A:2-1.4(c).

AnalysisIn this matter, the appointing authority has not provided any substantive information to show that a material error occurred or any new information that would somehow change the outcome of the prior matter. In the prior matter, the Commission appropriately determined that the concept of progressive discipline applied, and mitigating factors warranted modifying the removal to a 45 working day suspension. Regarding the appointing authority’s argument that the Commission erred by modifying the removal to a 45 working day suspension, the Commission disagrees. Based on the mitigating factors, the record clearly supported modifying the removal to a 45 working day suspension. Although the appointing authority may disagree that the Commission’s methodology in the prior matter, it is the Commission that is authorized by Civil Service law and rules to make such determinations. With respect to the appointing authority’s argument that it appears that the Commission was suggesting in the prior decision that it was appropriate to “pass the buck,” such arguments are misplaced. While the prior decision indicated that the action of notifying a supervisor about the infraction was a mitigating factor, reporting the incident was not the sole mitigating factor considered. In modifying the disciplinary penalty, the Commission considered additional mitigating factors including lack of a prior disciplinary record, no similar circumstances occurred during Pharo’s 13 years of employment, and the conduct was aberrational. Moreover, the Commission indicated in the prior matter that the 45 working day penalty was a serious penalty and specifically warned Pharo that any future similar conduct will result in a disciplinary penalty up to and including removal. Accordingly, the appointing authority has provided no substantive evidence to disturb the prior decision, and its request for reconsideration is denied.

ORDER

Therefore, it is ordered that this request be denied.

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