Andrew Juttner, CSC Docket No. 2021-541

BackgroundThe appeal of Andrew Juttner, Battalion Fire Chief, City of Plainfield, Fire Department, 20 working day suspension, on charges, was heard by Administrative Law Judge Thomas R. Betancourt (ALJ), who rendered his initial decision on November 18, 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 January 19, 2022, 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 20 working day suspension. Rather, the Commission imposed a 10 working day suspension.

DISCUSSION

In this matter, the appellant was charged with incompetency, inefficiency or failure to perform duties, neglect of duty and other sufficient cause. Specifically, the appointing authority alleged that the appellant improperly conducted a training session where smoke was released. 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 his 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 only previous minor discipline, that the 20 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 20 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 public safety setting. The appellant's failure to properly administer the training, especially in failing to account for the hazardous consequences that may have been caused by the timing of the training, clearly justifies a major disciplinary suspension. Nevertheless, given that the record indicates that the appellant has only prior minor discipline, much of which is remote in time, in his 25-year career, the Commission finds that a 10 working day suspension 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, he is entitled to 10 days of back pay, seniority and benefits. See N.d.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 Matier 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

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

Commission, charges were sustained, and major discipline was imposed. Consequently, as the appellant has failed to meet the standard set forth at N.J.A.C. 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 justified. The Commission therefore modified the 20 working day suspension to a 10 working day suspension. The appellant is entitled to 10 days of backpay, benefits and seniority as provided for in N.d.A.C. 44:2-2.10. 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.