Sergio Santiago, CSC Docket No. 2022-2313

BackgroundThe appeal of Sergio Santiago, Senior Correctional Police Officer, Northern State Prison, Department of Corrections, removal, effective March 14, 2022, on charges, was heard by Administrative Law Judge Matthew G. Miller (ALJ), who rendered his initial decision on March 6, 2023. Exceptions were filed on behalf of the appointing authority.

AnalysisHaving considered the record and the AL.J’s initial decision, including a thorough review of the exceptions, and having made an independent evaluation of the record, the Civil Service Commission (Commission), at its meeting of May 3, 2023, accepted and adopted the Findings of Fact and Conclusion as contained in the attached ALJ’s initial decision and his recommendation to reverse the removal.

The Commission makes the following comments. As indicated above, the Commission thoroughly reviewed the exceptions filed by the appointing authority in this matter. In that regard, the Commission finds them unpersuasive as the ALJ’s findings and conclusions in reversing the charges and penalty imposed was based on his thorough assessment of the record and are not arbitrary, capricious or unreasonable.

The Commission notes that the ALJ credited much of the appellant’s testimony, finding much of what the appointing authority witnesses presented as unpersuasive in light of both the appellant’s credible testimony and other evidence in the record. Upon its de novo review of the record, 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 NJ. 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 appointing authority 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. As such, the Commission has no reason to question those determinations or the findings and conclusions made therefrom.

Noteworthy in this regard was the ALJ’s assessment of the underlying investigation into this matter. Specifically, the ALJ stated:

Before reaching my conclusions, I would note that throughout this case, there always seemed to be something “missing”, with no real interest demonstrated by NSP in discovering what actually occurred, as opposed to coming to a pre-determined conclusion.

The investigation was sloppy, disjointed, superficial and ultimately unconvincing. From the very beginning, it was obvious that there was confusion concerning the anger management issues. The investigators, rather than actually attempting to determine the truth, instead relied on computer databases, authored “cut-and-paste” reports, conducted a sophomoric taped interview during which the most informed party seemed to be the union representative and never followed up in any meaningful way with the Wayne Municipal Court,

Mr. Weiss or Ms. Peguero. The primary impression projected during the hearing was that the investigation was a pre forma exercise and that

Officer Santiago was lying.

In fact, from the onset, NSP’s administration seemed more interested in terminating Officer Santiago than in following an unbiased disciplinary procedure (footnote omitted).

Many of the ALJ’s subsequent findings were based on what the he indicated was confusion regarding exactly what the appellant was required to complete/submit to. While some of that confusion could be attributed to the appellant, it does not appear that any such actions would be worthy of discipline as the ALJ found that the appellant attempted, in good faith to comply with what was required, and reported accurately to the best of his ability what treatments, etc., he completed. Further, the exceptions do not persuasively demonstrate that the ALJ’s findings regarding the appellant’s testimony or the other testimony or evidence regarding the underlying investigation were arbitrary, capricious, unreasonable or otherwise in error.

Since the removal has been reversed, the appellant is entitled to be reinstated with mitigated back pay, benefits, and seniority pursuant to N.J.A.C. 4A:2-2.10 from the first date of separation until the date of reinstatement. Moreover, as the removal has been reversed, the appellant is entitled to reasonable counsel fees pursuant to N.d.A.C, 4A:2-2.12.

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 or counsel fees 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 position.

ORDER

The Civil Service Commission finds that the action of the appointing authority in removing the appellant was not justified. The Commission therefore reverses that action and grants the appeal of Sergio Santiago. The Commission further orders that the appellant be granted back pay, benefits, and seniority from the first date of separation until the date of reinstatement. The amount of back pay awarded is to be reduced and mitigated as provided for in Nid.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.

The Commission further orders that counsel fees be awarded to the attorney for the appellant pursuant to N.J.A.C. 4A:2-2.12. An affidavit of services in support of reasonable counsel fees shall be submitted by or on behalf of the appellant to the appointing authority within 30 days of issuance of this decision. Pursuant to Nid. A.C. 4A:2-2.10 and N.d.A.C. 4A:2.12, the parties shall make a good faith effort to resolve any dispute as to the amount of back pay and counsel fees. However, under no circumstances should the appellant’s reinstatement be delayed pending resolution of any potential back pay or counsel fee dispute.

The parties must inform the Commission, in writing, if there is any dispute as to back pay or counsel fees within 60 days of issuance of this decision. In the absence of such notice, the Commission will assume that ail 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.