Dennis Turner, CSC Docket No. 2022-1444

BackgroundThe appeal of Dennis Turner, Senior Correctional Police Officer, Bayside State Prison, Department of Corrections, removal, effective December 14, 2021, on charges, was heard by Administrative Law Judge Kathleen M. Calemmo (ALJ), who rendered her initial decision on May 25, 2022, modifying the removal to a 30 working day suspension. 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 Administrative Law Judge'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 June 29, 2022, accepted and adopted the Findings of Fact and Conclusion as contained in the attached Administrative Law Judge’s initial decision.

DISCUSSION

The appellant was removed on charges of conduct unbecoming a public employee and other sufficient cause. Specifically, the appointing authority alleged that the appellant failed a random drug screening by testing positive for 11-Carboxy- THC (THO), including failing to report his accidental ingestion of marijuana prior to his screening.

Administrative Law JudgeIn her initial decision, the ALJ found that the credible evidence in the record, based predominantly of the appellant and his wife’s credible testimony, supported that the positive drug result was caused by the appellant’s accidental ingestion of cookies that contained legally-purchased marijuana. The ALJ also found that based on the appellant’s own admission, he did not report the accidental ingestion when it occurred as required, nor did he report it immediately prior to the drug screening. Since the charges underlying the positive drug result were not sustained, and the upheld charges were only that the appellant failed to report the accidental usage, the ALJ recommended modifying the removal to a 30 working day suspension. The ALJ also noted that this reduction in penalty was based, in part, on the appellant’s previously unblemished disciplinary history over his previous 19 years of service.

AnalysisIn its exceptions, the appointing authority argues that the ALJ minimized the severity of the upheld misconduct. It argues that removal from employment is warranted for the appellant’s knowing and intentional failure to report his accidental ingestion of marijuana prior to the drug screening.

In reply, the appellant argues that the ALJ properly weighed all of the mitigating factors in reducing the penalty.

Upon its de novo review of the entire record, the Commission agrees with the ALJ’s assessment of the charges. In this regard, the ALJ's initial decision was thorough and well-reasoned and after a review of the exceptions, the Commission finds no basis to discount the findings and conclusions made by the ALJ. The Commission also agrees that the proper penalty in this matter is a 30 working day suspension.

Regarding the 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 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. 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). Even when a Senior Correctional Police Officer does not possess a prior disciplinary record after many unblemished years of employment, the seriousness of an offense occurring in the environment of a correctional facility may, nevertheless warrant the penalty of removal where it compromises the safety and security of the institution, or has the potential to subvert prison order and discipline. See Henry, supra. In this regard, the Commission emphasizes that a Senior Correctional Police Officer is a law enforcement officer who, by the very nature of his job duties, is held to a higher standard of conduct than other public employees. See Moorestown v. Armstrong, 89 N.J. Super. 560 (App. Div. 1965), cert. denied, 47 N.-J. 80 (1966). See also, In re Phillips, 117 N.eJ. 567 (1990).

In this case, the appellant’s actions are clearly serious, especially in a correctional setting. The appellant’s failure to properly report his accidental ingestion of marijuana for a significant period of time is problematic. In fact, had the appellant followed the proper policies and reported such ingestion, the Commission can only assume that this matter may have never actually resulted in disciplinary charges. Nevertheless, the appellant's failure to self-report such ingestion as required could clearly support removal from employment, especially given the appellant’s status as a law enforcement officer. The public expects Senior Correctional Police Officers to present a personal background that exhibits respect for the law and rules. The appellant failed in that respect in this matter. Nevertheless, the Commission agrees with the ALJ that the upheld infractions are not so egregious to warrant removal absent the imposition of progressive discipline. In that regard, the Commission cannot ignore that the appellant’s previous 19 years of employment were marked by no discipline and several commendations. Such a record of service clearly mitigates against the imposition of the penalty of removal. Accordingly, the Commission agrees with the ALJ’s assessment that a 30 working day suspension is sufficient under the circumstances. The Commission believes this suspension will impress upon the appellant the severity of his misconduct as well as serve as notice that any future infractions could result in more significant disciplinary penalties, up to and including his removal from employment.

As the appellant’s removal has been modified, he is entitled to mitigated back pay, seniority and benefits 30 working days from his separation from employment until his actual reinstatement. See N.J.A.C. 4A:2-2.10. However, he 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 Matter of Ralph Cozzino (MSB, decided September 21, 1989). In the case at hand, although the penalty was modified by the Commission, charges were sustained, and major discipline was imposed. Consequently, as appellant has failed to meet the standard set forth at N.J.A.C. 4A:2-2.12, counsel fees must be denied.

This decision resolves the merits of the dispute between the parties concerning the disciplinary charges and the penalty imposed by the appointing authority. However, in light of the Appellate Division’s decision, Dolores Phillips v. Department of Corrections, unpublished, 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. However, under no circumstances should the appellant’s reinstatement be delayed due to any back pay dispute.

ORDER

The Civil Service Commission finds that the action of the appointing authority in removing the appellant was not justified. The Commission therefore modified the removal to a 30 working day suspension. The appellant is entitled to 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 and mitigated to the extent of any income earned, or could have been earned, by the appellant during this period. 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.

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 RA. 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.