LATOYA HOBSON, CSC Docket No. 2021-480

BackgroundThe appeal of Latoya Hobson, County Correctional Police Sergeant, Hudson County, Department of Corrections, 10 working day suspension, on charges, was heard by Administrative Law Judge Kimberly A. Moss, who rendered her initial decision on November 16, 2021. Exceptions were filed on behalf of the appellant and a reply to exceptions was filed on behalf of the appointing authority.

AnalysisHaving considered the record and the Administrative Law Judge’s initial decision, and having made an independent evaluation of the record, the Civil Service Commission (Commission), at its meeting on December 15, 2021, accepted and adopted the Findings of Fact and Conclusion as contained in the attached Administrative Law Judge’s initial decision. However, it did not uphold the recommendation to affirm the 10 working day suspension. Rather, the Commission imposed an official written reprimand.

DISCUSSION

In this matter, it was alleged that the appellant failed to properly perform her duties when she did not properly inspect an officer who carried his personal weapon into the facility. Upon the appellant's appeal, the matter was transmitted to the Office of Administrative Law for a hearing as a contested case.

Administrative Law JudgeIn her initial decision, the Administrative Law Judge found that the credible evidence in the record supported the charges against the appellant and that, notwithstanding that the appellant had no prior discipline, that the 10 working day suspension was the proper penalty.

AnalysisUpon its de novo review of the record, the Commission has no issue with the ALJ’s findings regarding the charges in this matter.! However, it disagrees that the 10- working day suspension is the proper penalty.

In 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.J. 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 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 case, the appellant's actions are clearly serious, especially in a correctional setting. The inattentiveness of the appellant could have had catastrophic consequences. Nevertheless, while not condoning the appellant’s misconduct, there appeared to be a systemic breakdown on the part of several of the supervisory and other staff in this matter. Also, importantly, the record indicates that the appellant has no prior discipline in her nearly 15-year career. Accordingly, the Commission finds that an official written reprimand is the proper penalty and should serve as sufficient warning to the appellant that any future infractions could lead to a more severe disciplinary sanction.

As the appellant's suspension has been modified, she is entitled to 10 days of back pay, seniority and benefits. See N.J.A.C. 4A:2-2.10. However, she is not entitled to counsel fees. N.dJ.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 Matier of Ralph Cozzino (MSB, decided September 21, 1989). In the case at hand, although the penalty was modified by the Commission, the charges were sustained, and discipline was imposed. Consequently, as the appellant has failed to meet the standard set forth at N.J.A.C.

1 As the Commission only disagrees with the ALJ regarding the penalty, the appellant's exceptions, which, among other things, challenged the ALJ’s determinations on the merits, and which were reviewed and considered by the Commission, but ultimately found to be unpersuasive, will not be addressed in detail.

4A:2-2.12, counsel fees must be denied.

ORDER

The Civil Service Commission finds that the action of the appointing authority in suspending the appellant was not justified. The Commission therefore modified the 10 working day suspension to an official written reprimand. The appellant is entitled to 10 days of backpay, benefits and seniority as provided for in N.J.A.C. 4A:2-2.10. The amount of back pay awarded is to be reduced to the extent of any income earned by the appellant during this period. Proof of income earned shall be submitted by or on behalf of the appellant to the appointing authority within 30 days of issuance of this decision.

Counsel fees are denied pursuant to N.J.A.C. 4A:2-2.12,

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