MELVIN FINLEY, CSC Docket No. 2022-2459

BackgroundThe appeal of Melvin Finley, Security Guard, Newark School District, removal, effective April 19, 2021, on charges, was heard by Administrative Law Judge Danielle Pasquale (ALJ), who rendered her initial decision on July 9, 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 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 August 14, 2024, adopted the ALJ’s Findings of Facts and Conclusions and her 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 her 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 uv. 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).

Administrative Law JudgeAs to the credibility, the ALJ found:

Having had an opportunity to observe the demeanor of the witnesses and the corresponding consistent video testimony, it is my view that Mr. Stewart, Mr. Bullock, Executive Director Holmes as well as Ms. Alvarez were highly credible. Their testimony was clear, truthful and their investigation was not speculative, but rather completely thorough and fully documented before any charges were lodged against Finley. Their testimony regarding the March 20, 2021 abandonment was clear and concise and corroborated by the video evidence as reviewed in detail at the hearing during their testimony and as noted in their written documentation, and thus I FIND their versions as fact in this matter and gave them enormous weight.

In contrast, I FIND the testimony of Finley to be wholly incredible. He admits to leaving the post and not letting anyone but the custodian know of his departure. He knew this was not the protocol. First, he would not even concede that his supervisor was Mr. Stewart even though he admitted, and it is undisputed that he texted Stewart to obtain both overtime shifts that day. Next, his first mention of having Covid as a reason for leaving was during his testimony. In fact, he floundered about whether he had a COVID test or not, although he certainly did not follow the protocol regarding testing or exposure. He then recounted a wholly unbelievable story about not being able to contact his supervisor Stewart or dispatch because he was so sick, he “did not even know where he was”. He testified that staying there in his altered state and exposing them (students) to him would be more dangerous for the students than his fully abandoning and not covering the post. In fact, he said he was too sick to text his supervisor but had no problem notifying the custodian. Finley knew from his recent history of similar infractions and subsequent suspensions and training that the only option was to approach a superior and get his shift covered. The version that is more believable is that he simply left the post and did not have it covered. In fact, my review of the video shows an unhampered and well man who is walking to his car without assistance with his belongings in hand. He was able to open his passenger door and get his things in and then get into the driver’s seat without incident. He drove off the lot and was certainly ambulating with no problem and thus I so FIND. Again, the video evidence presented was comprehensive and the witnesses for the District were professional and dispassionate, and corroborative. They were clear on the Finley’s job description, his abandonment and the training given and received in order to combat the known security issues at Barringer. None of the witnesses appeared to dislike Finley, but rather they had to report what they observed and confirmed by their research and investigation as part of their supervisory responsibilities, and I thus I FIND them to be highly credible witnesses. Furthermore, I have no doubt that Finley knew the protocol for leaving a post due to his training and due to his recent prior discipline. Again, Finley was caught abandoning his post as we watched along on the video coverage. In addition, after he left, we watched the parts of the video proving that there were students still in the building for hours unattended by any security guard, and thus I so FIND.

AnalysisUpon its review, the Commission finds nothing in the record or the appellant’s exceptions to demonstrate that the ALJ’s credibility determinations, or her findings and conclusions based on those determinations, were arbitrary, capricious or unreasonable. Accordingly, the Commission adopts those findings.

The only other issue in this matter is the proper penalty to be imposed. 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.Jd.A.R. 2d (CSV) 463.

Administrative Law JudgeIn the initial decision, the ALJ noted the appellant’s disciplinary history, including prior major disciplines, including infractions similar to the misconduct at bar. Ultimately, the ALJ stated:

Under the circumstances, I CONCLUDE major discipline is the appropriate discipline, and I am persuaded that removal is required as there is recent and extensive progressive discipline history including repeat similar offenses listed in the instant matter. Furthermore, due to the fact that Finley was recruited by his employer to come to

AnalysisBarringer High School from Westside because of his special knowledge and training to help manage the well-known gang activity and dangerous events that were known to Finley by his own admission; he assumed the risk of abandoning his post without coverage and knew with students left in the building what could happen in accordance with the credible testimony, documentary and video evidence outlined above as well as his own admissions in court. Accordingly, I FURTHER

CONCLUDE that the penalty of removal is the only one available to me or the District in this matter as the previous minor and major disciplines, respective recent suspensions and corresponding training and counseling did not rectify his behavior. In fact, the most-recent discipline occurred just prior to and included language that no further violations would be tolerated and may result in removal.

The Commission agrees that removal is the proper penalty in this matter. The appellant’s infractions are of significant concern. Indeed, his actions posed a serious safety and security risk in a school setting. Moreover, the appellant’s documented disciplinary history, including infractions similar to the case at hand, makes imposing a lesser penalty unlikely to impress upon the appellant the serious nature of his misconduct. Accordingly, the Commission finds the penalty of removal neither disproportionate to the offense 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 appeal of Melvin Finley.

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