Mark De Azevedo, CSC Docket No. 2022-1795

BackgroundThe appeal of Mark De Azevedo, Police Officer, Rahway Police Department, removal, effective September 10, 2021, on charges, was before Administrative Law Judge Matthew G. Miller (ALJ), who rendered his initial decision on April 11, 2024. Exceptions were filed on behalf of the appellant, and a reply was filed on behalf of the appointing authority.

AnalysisHaving considered the record and the attached 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 May 22, 2024, adopted the ALJ’s Findings of Fact and Conclusions and his recommendation to uphold the removal.

Upon its de novo review of the ALJ’s 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. 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 Lecurto, 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 his findings after reviewing the footage of several body worn cameras from the Police Officers at the scene, footage from front and rear dash cams from the appellant’s police cruiser, photos of the arrestee’s head, video from internal affairs interviews of the officers involved, and a review of the pertinent police radio and telephone traffic. The ALJ determined that the appellant clearly did not evaluate the arrestee’s condition after having used force against her, as required by departmental policies and Attorney General Guidelines. Further, the ALJ concluded that the appellant deliberately omitted that the arrestee had hit her head when recounting the events of the day. 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 review of the underlying charges, the Commission’s review of the penalty is de novo. In addition to considering the seriousness of the underlying incident in determining the proper penalty, the Commission utilizes, when appropriate, the concept of progressive discipline. West New York v. Bock, 38 N.dJ. 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 principle of progressive discipline is not a “fixed and immutable rule to be followed without question.” Rather, it 1s 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 regard, the Commission notes that 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. As set forth by the ALJ, the Commission emphasizes that a law enforcement officer is held to a higher standard than a civilian public employee. A Police Officer holds a highly visible and sensitive position within the community, whose primary duty is to enforce and uphold the law. The position represents law and order to the citizenry. A Police Officer also carries a service revolver and is constantly called upon to exercise tact, restraint and good judgment in relationship with the public. Thus, a Police Officer must present an image of personal integrity and dependability in order to have the respect of the public. 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). In the instant matter, the appellant’s disciplinary history references minor disciplinary actions and one major suspension of seven days. All of these disciplinary actions occurred since 2018. The appellant’s present actions were serious as he placed the health and wellbeing of an arrestee at risk in failing toe properly evaluate her condition after his use of force caused her to hit her head on a wall. Further, his actions were in direct contradiction of Attorney General Guidelines and the appointing authority’s policies. The appellant’s conduct clearly undermines the public trust and makes it more difficult for other law enforcement officers to perform their duties. Accordingly, based on the seriousness of the offense and his prior disciplinary history, it is clear that removal is the appropriate penalty.

ORDER

The Civil Service Commission finds that the action of the appointing authority in removing the appellant was justified. The Commission therefore affirms that action and dismisses the appeal of Mark De Azevedo.

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