Michael Dalrymple, CSC Docket No. 2022-1829

BackgroundThe appeal of Michael Dalrymple, Investigator, Secured Facilities, Edna Mahan Correctional Facility, Department of Corrections, removal, effective January 19, 2022, on charges, was heard by Administrative Law Judge Sarah G. Crowley (ALJ), who rendered her initial decision on September 26, 2022. 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 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 2, 2022, the Commission did not adopt the ALJ’s recommendation to reverse the removal. Rather, the Commission imposed a 30 working day suspension.

The appellant was charges with conduct unbecoming a public employee and other sufficient cause, as well as violations of departmental policy. Specifically, that he made intentional misstatements of material fact and made unauthorized use of State equipment. In this regard, it was alleged that the appellant, in the course of his duties, submitted an investigation report “containing false statements” and such statements “were falsely represented” by him in the report. It was also alleged that the appellant misused State equipment by storing personal photos on a State computer in violation of policy. Upon the appellant’s appeal, the matter was transmitted to the Office of Administrative Law for a hearing.

Administrative Law JudgeIn her initial decision, the ALJ recommended dismissing all of the charges and reversing the removal. Regarding the alleged investigative report deficiencies, the ALJ found that:

The alleged misconduct by the appointing authority in this case is that the petitioner did not follow proper interviewing techniques and made an intentional misstatement of a material fact (falsification) in connection with the preparation of an SID report relating to an inmate trying to smuggle a piece of chicken out of the cafeteria. I have found as FACT that the statement of one of the witnesses was incorrectly reported in petitioner’s report. However, the appointing authority did not produce any evidence that this was an intentional misrepresentation and thus, has not proven by the preponderance of the credible evidence that it was an intentional misstatement or falsification.

The ALJ also found that there were no specific other rules regarding investigative techniques presented that the appellant violated. Based on the above, the ALJ did not uphold the charges underlying this alleged misconduct.

Regarding the alleged misuse of State property, the ALJ stated “[t]he final charge related to the storage of the family photos on his work computer is from 2017 and charges were not brought in a timely matter. Moreover, the charge itself is de minimis.” The ALJ based this conclusion on her agreement with the appellant that these charges violated the “45-day rule.”!

AnalysisIn its exceptions, the appointing authority contends, inter alia, that it has established that the appellant’s inaccurate statements were indeed, intentionally false. In the alternative, it argues that even if not intentional, providing such false information was conduct unbecoming a public employee. It also argues that the charges relating to the photos were timely as that information was only uncovered during the investigation into the other infractions. Finally, it argues that should the Commission uphold the charges, the penalty of removal is appropriate based on the egregious nature of the misconduct.

In response, the appellant argues that the appointing authority did not sustain its burden of proof and thus, the charges should be dismissed.?

In its de novo review, while the Commission agrees with the ALJ that the underlying charge of intentional misstatement of a material fact (falsification) cannot be upheld for the reasons expressed by the ALJ, it disagrees that all the charges underlying the appellant’s investigation should be dismissed. While the appellant has not been found to have made any intentional misstatements, he clearly

Administrative Law Judge1 The ALJ does not specify the actual] statutory or regulatory provisions, but it is assumed that she is referring to N.J.S.A. 30:4-3.11a. 2 The reply argues that the exceptions were filed pursuant to N.J.A.C. 4A:2-1.6 and that the appointing authority did not meet the standards under that rule. That is incorrect. The exceptions filed were properly filed pursuant to N.eJ.A.C, 1:1-18.4. N.J.A.C. 4A:2-1.6 is inapplicable as that only pertains to reconsideration of decisions rendered by the Commussion., misreported at least one statement. Moreover, he was charged not only with falsification, but also with conduct unbecoming a public employee and the underlying specifications make no reference to the intent behind the misstatements, rather they merely indicate that the appellant submitted an investigation report “containing false statements.” Based on that description, the charge of conduct unbecoming can be sustained as such a lack of accuracy could tend to destroy the public’s trust in such investigations and the sufficiency or competency of such public employees engaged in such investigations within a correctional setting.’

AnalysisRegarding the ALJ’s dismissal of the charge of misuse of State property, the Commission agrees with the ALJ that, even if upheld, those charges are de minimis and would not be worthy of an additional penalty above that imposed for the other infraction in this matter. As such, the Commission dismisses that charge.4

Similar to its review of the underlying charges, 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.¢. 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.d.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 public safety employee 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.

3 The Commission notes that a more accurate charge may have been “Incompetency, inefficiency or failure to perform duties” or “Neglect of Duty.” However, given that the type of deficiencies demonstrated by the appellant can have a negative effect on the perception of the public on public employees, the charge of conduct unbecoming a public employee is sustainable. 4 The ALJ dismissed that charges based on the “45-day rule.” Assuming that she was referring to N.J.S.A. 30:4-3.11a, the Commission notes that the “45-day rule” explicitly states that it can only be applied to charges lodged against “a State corrections officer.” In this regard, individuals in the Investigator, Secured Facilities title are initially in the State Correctional Police Officer title series and are thereafter promoted to the Investigator series. As such, it is not clear that N.J.S.A. 30:4-3.1la is applicable. Further, even if applicable, there is no analysis as to when the individual responsible for bringing the charges had sufficient knowledge to do so. The record appears to indicate that the infractions were only discovered when the investigation into the appellant’s misstatements were investigated. If true, the misuse charges may have been timely filed. Regardless, as the Commission finds those charges di minimis, and unworthy of further penalty, it declines to reverse the ALJ’s dismissal of those charges.

In this matter, the Commission does not find the infractions so egregious to warrant removal absent the imposition of progressive discipline. While the appellant's disciplinary record is not officially in the record, the Commission has access to all official computerized State employee personnel records. The appellant’s record shows that since his employment in April 2010, he has a 30 working day suspension in December 2017.5 The Commission has generally found that inaccuracies in reporting for correctional staff are worthy of a significant suspension, dependent on the facts of the matter. In this case, the Commission finds that, while not intentionally false, the inaccuracies were significant, especially for an Investigator whose entire job is to present as accurate information as possible, and warrant a 30 working day suspension. Accordingly, the Commission imposes a 30 working day suspension in this matter.

Since the removal has been modified, the appellant is entitled to be reinstated with mitigated back pay, benefits, and seniority pursuant to N.Jd.A.C. 4A:2-2.10 from 30 working days after the first date of separation until the date of actual reinstatement. However, he is not entitled to counsel fees. NJAC. 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, 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. In the interim, as the court states in Phillips, supra, if it has not already done so, upon receipt of this decision, the appointing authority shall immediately reinstate the appellant to his permanent position.

5 There is also reference to an indefinite suspension in October 2020. However, there is no underlying information and the Commission cannot be sure that the suspension was enacted or served. Regardless, the penalty imposed in this matter is appropriate without regard to that suspension. Moreover, even if his official records are incorrect, the penalty imposed in this matter is appropriate given the charges sustained and the nature of the incidents.

ORDER

The Civil Service Commission finds that the action of the appointing authority in removing the appellant was not justified. The Commission therefore modifies that action to a 30 working day suspension. The Commission further orders that the appellant be granted back pay, benefits, and seniority from 30 working days after the first date of separation to the actual date of reinstatement. The amount of back pay awarded is to be reduced and mitigated as provided for in N.J.A.C. 4A:2-2.10. 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. Pursuant to N.J.A.C. 4A:2-2.10, the parties shall make a good faith effort to resolve any dispute as to the amount of back pay. However, under no circumstances should the appellant's reinstatement be delayed pending resolution of any potential back pay dispute.

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 R. 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.