JOHN DADURA, CSC Docket No. 2022-1148, 2022-1150

BackgroundThe appeals of John Dadura, Police Officer, Wildwood City, Department of Public Safety and Public Affairs, seven working day suspension! and 60 working day suspension on charges, were heard by Administrative Law Judge Catherine A. Tuohy (ALJ), who rendered her initial decision on July 24, 2023. 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 ALuJ’s initial decision, and having made an independent evaluation of the record, including a thorough review of the exceptions and reply filed by the parties, the Civil Service Commission (Commission), at its meeting on August 23, 2023, adopted the ALJ’s Findings of Fact and Conclusions as contained in the initial decision. However, it did not adopt her recommendation to modify the 60 working day suspension to a 30 working day suspension. Rather, the Commission upheld the 60 working day suspension.

The Commission makes the following comments. The question in this matter is penalty. 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.J.A.R. 2d (CSV) 463. It is settled that the theory of progressive discipline is not a “fixed and immutable rule to be followed without question.” See Carter v. Bordentown, 191 N..J. 474 (2007). In this regard, the Commission emphasizes that a Police Officer is held to a higher standard than a civilian public employee. See Moorestown v. Armstrong, 89 N.dJ. Super. 560 (App. Div. 1965), cert. denied, 47 N.J. 80 (1966). See also, In re Phillips, 117 N.eJ. 567 (1990).

Administrative Law Judge1 The ALJ noted that the seven working day suspension was modified to a five working day suspension by the appointing authority, thereby, taking it out of the purview of the Commission to review. As such, it will not be further addressed herein.

AnalysisThe Commission agrees that the misconduct supports a significant disciplinary suspension in this matter. In her decision, the ALJ stated:

Officer Dadura has five FNDAs contained in his file, including the one at issue in this case for a sixty-day suspension, dated October 25,

2021; the seven-day suspension that was amended to a five-day suspension before this hearing started, dated October 25, 2021; a five- day suspension, dated October 25, 2021; a three-day suspension, dated

October 25, 2021; and a ten-day suspension dated March 9, 2016. (R-18.)

Therefore, prior to this case, Officer Dadura had four disciplinary charges, three of them minor and only one major discipline from 2016.

There was also an “Employee Performance Notice”, dated March 26,

2018, for counselling contained in Officer Dadura’s discipline file.

Although I have sustained all of the charges against Officer

Dadura, I am not inclined to impose a sixty-working-day suspension penalty based on theories of progressive discipline since this discipline arose before Officer Dadura could receive the training anticipated to be conducted pursuant to the Personnel Order, dated March 22, 2021. This incident occurred on March 28, 2021, and resulted in the Chief ordering

Officer Dadura to complete the entire Cape May Police Academy to ensure he is trained properly. The chief had testified that Officer Dadura had not initially attended the Cape May County Police Academy, and this was the way to make sure he was trained properly by their instructors.

Upon its review, the Commission disagrees with the reduction in penalty. The appellant’s misconduct in this matter was troubling, especially given the fact that he has had prior disciplines for similar misconduct regarding the use of a taser, and the potential impact on public safety. While the appellant's prior disciplinary suspensions were of a lesser degree, given the repetitive nature of the misconduct, the 60 working day suspension in this matter is appropriate and should impress upon the appellant the inappropriate nature of his misconduct and serve as a warning that any future misconduct will be met with more severe discipline, up to and including removal from employment. Finally, the Commission highly recommends that the appointing authority, if it has not already done so, send the appellant to a Conductive

Energy Device training course.

ORDER

The Civil Service Commission finds that the action of the appointing authority in suspending the appellant was justified. The Commission therefore upholds the 60 working day suspension and dismisses the appeal of John Dadura.

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