SEAN WEEKS, CSC Docket No. 2022-1915

BackgroundThe appeal of Sean Weeks, Police Officer,! Irvington, Department of Public Safety, six-month suspension, on charges, was heard by Administrative Law Judge Thomas R. Betancourt (ALJ), who rendered his initial decision on October 3, 2024. Exceptions were filed on behalf of the appellant.

AnalysisHaving considered the record and the ALJ’s initial decision, and having made an independent, de novo evaluation of the record, including a thorough review of the exceptions, the Civil Service Commission (Commission), at its meeting on November 6, 2024, adopted the ALJ’s Findings of Fact and Conclusions. However, it did not agree with his recommendation to modify the six-month suspension to a 60 working day suspension. Rather, the Commission modified the six month suspension to a 10 working day suspension.

Administrative Law JudgeRegarding the charges, the ALJ’s determinations were based on his assessment of the testimonial and documentary evidence in the record and his assessment of the credibility of that 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. Jd. at 659

Analysis! The appellant received an accidental disability retirement, effective January 1, 2022.

(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, while the appellant’s exceptions attempt to establish that the appointing authority’s witnesses did not provide truthful testimony, they have not substantiated such claims sufficient to convince the Commission that the due deference normally afforded to an ALJ’s credibility determinations should be ignored. As such, the Commission finds that the ALJ’s credibility determinations and his findings were not arbitrary, capricious, unreasonable or otherwise in error. Accordingly, the Commission, upon its de novo review of the proffered charges, agrees with the ALJ regarding those that were upheld and those that were dismissed.

Regarding the penalty, 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.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).

Administrative Law JudgeIn this case, the ALJ recommended a 60 working day suspension, due to a previous settlement agreement, which indicated that for the next major disciplinary matter, the appellant was to receive a penalty between 60 and 180 days suspension and/or termination. In particular, the ALJ relied on the timing of the appellant’s disclosure to his supervisor that he was in pain and would be booking out sick. Although the timing of the disclosure supports upholding the charges, other than the settlement agreement, there is no discussion as to why the appellant’s actions warrant a significant major discipline. The ALJ found, as mitigating factors, that the appellant was on light duty due to a work-related incident and that there was no doubt that the appellant was in pain when he was given the assignment. The ALJ also found, that despite having the authority to do so, the appellant was not sent for a medical examination on the date in question. Initially, the Commission notes that it is not bound by the provisions of the previous settlement agreement regarding the penalty to be imposed and has exclusive jurisdiction to determine such matters upon appeal. As such, the Commission finds that the appellant’s suspension is more appropriately reduced to a 10 working day suspension as it was undisputed that he was injured at the time.

AnalysisSince the suspension has been modified, the appellant is entitled to mitigated back pay, benefits, and seniority, pursuant to N.dJ.A.C, 4A:2-2.10.2 However, he is not entitled to counsel fees. N.d.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 some charges were dismissed and the penalty was modified by the Commission, charges were sustained, and major discipline was imposed. Consequently, as the 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 penalties imposed by the appointing authority. However, per 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.

ORDER

The Civil Service Commission finds that the action of the appointing authority in suspending the appellant was justified. However, it modifies the six-month suspension to a 10 working day suspension. The Commission further orders that the appellant be granted back pay, benefits, and seniority. 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.

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.

Analysis2 The Commission notes that pursuant to N.dA.C. 4A:2-2.10(d)9, a back pay award is subject to reduction for any period of time during which the employee was disabled from working.