Esteban Rodriguez, CSC Docket No. 2022-1705

BackgroundThe appeal of Esteban Rodriguez, Police Officer, Weehawken, Police Department, removal, effective January 12, 2022, on charges, was heard by Administrative Law Judge John P. Scollo (ALJ), who rendered his initial decision on October 5, 2023. 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 ALJ’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 November 1, 2023, adopted the ALJ’s Findings of Facts and Conclusions and his recommendation to uphold the removal.

Upon its de novo review of the ALJ's painstakingly thorough and well-reasoned 95-page initial decision as well as the entire record, including the exceptions filed by the appellant, the Commission agrees with the ALJ’s determinations regarding the charges, which were substantially based on his assessment of the credibility of the testimony of the witnesses, as well as other documentary and video evidence. In this regard, the Commission acknowledges that the ALJ, who has the benefit of hearing and seeing the witnesses, is generally in a better position to determine the credibility and veracity of the witnesses. See Matter of J.W.D., 149 N.J. 108 (1997). “[T]rial courts’ credibility findings . . . are often influenced by matters such as observations of the character and demeanor of the witnesses and common human experience that are not transmitted by the record.” See also, In re Taylor, 158 N.J. 644 (1999) (quoting State v. Locurto, 157 N.J. 463, 474 (1999)). Additionally, such credibility findings need not be explicitly enunciated if the record as a whole makes the findings clear. Id. at 659 (citing Locurto, supra). The Commission appropriately gives due deference to such determinations. However, in its de novo review of the record, the Commission has the authority to reverse or modify an ALJ’s decision if it is not supported by sufficient credible evidence or was otherwise arbitrary. See N.J.S_A. 52:14B-10(c); Cavalieri u. Public Employees Retirement System, 368 N.J. Super. 527 (App. Div. 2004). In this matter, the exceptions filed by the appellant are not persuasive in demonstrating that the ALJ’s credibility determinations, or his findings and conclusions based on those determinations, were arbitrary, capricious or unreasonable. In this regard, the ALJ made numerous, detailed credibility determinations and corresponding findings based on those determinations as well as the other supporting evidence in the record. Upon its review, the Commission finds nothing in the record or the appellant’s exceptions to question those determinations or the findings and conclusions made therefrom.

Similar to its assessment of the charges, the Commission’s review of the penalty 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 law enforcement officer does not possess a prior disciplinary record after many unblemished years of employment, the seriousness of an offense may nevertheless warrant the penalty of removal where it is likely to undermine the public trust. In this regard, the Commission emphasizes that a law enforcement officer is held to a higher standard than a civilian public employee. 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.J. 567 (1990).

Clearly, the appellant’s egregious misconduct in this matter warrants removal from employment. As indicated by the ALJ:

On the issue of whether progressive discipline should be utilized in this matter, ... the argument has been made that because the WPD saw fit not to suspend Rodriguez immediately, but rather allowed him to keep working as non-road officer, doing administrative tasks, that there is reason to believe that Rodriguez’s violations were not egregious enough to warrant removal. J disagree. The Township’s forbearance in suspending Rodriguez immediately might have been afforded for any number of reasons, and it certainly does not necessarily encompass the issue of the severity of the charges or of the ultimate evaluation of whether the violations were or were not egregious. It must be recalled that at the time of the issuance of the original PNDA dated December

29, 2020 which started Rodriguez’s suspension without pay, the

November 1, 2020 False Report incident was a matter being handled by the NBPD and subsequently by the HCPO, not the WPD. In my judgment, there is no logical connection between the argument as presented and the desired result... The theory of progressive discipline has as its goal the correction of misbehavior. The question is whether punishment will be proportionate to the offense. In the matter at bar, many of the infractions alleged, taken either individually or taken as a group, are serious enough on their own to warrant removal. I

CONCLUDE that progressive discipline is not warranted in this matter.

The Commission wholeheartedly agrees that the appellant’s actions in this matter fall well short of what is expected of a law enforcement employee and are more than deserving of removal from employment. As such, the Commission finds the penalty of removal neither disproportionate to the offenses nor shocking to the conscious.

ORDER

The Civil Service Commission finds that the action of the appointing authority in removing the appellant was justified. The Commission therefore upholds that action and dismisses the appeals of Esteban Rodriguez.

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