Matthew Radecky, CSC Docket No. 2022-2658, 2022-3018

BackgroundThe appeals of Matthew Radecky, Police Sergeant, Pohatcong, Police Department, two removals, effective April 5, 2022, on charges, were heard by Administrative Law Judge Danielle Pasquale (ALJ), who rendered her initial decision on March 28, 2023. Exceptions were filed on behalf of the appellant and 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, the Civil Service Commission (Commission), at its meeting on May 3, 2023, adopted the ALJ’s Findings of Facts and Conclusion and her recommendation to modify the removals to a six-month suspension.

Upon its de novo review of the ALJ’s thorough and well-reasoned initial decision as well as the entire record, including the exceptions filed by the appointing authority, the Commission agrees with the ALJ’s determinations regarding the charges, which were substantially based on her assessment of the credibility 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 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); Cavaliert 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 her findings and conclusions based on those determinations, were arbitrary, capricious or unreasonable. In this regard, the ALJ concluded that “[h]aving had an opportunity to observe the demeanor of the witnesses and the lack of any reports, police cameras or contemporaneous statements, and their own self-interest, it is my view that no one in the department was 100% credible.” Thereafter, the ALJ made numerous detailed credibility determinations and presented logical and reasonable explanations for each. Upon its review, the Commission finds nothing in the record or the appointing authority’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 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).

In this matter, the Commission agrees with the ALJ’s recommendation to modify the removal to a six-month suspension. While the appellant’s misconduct is very serious, the Commission does not find it so egregious, under the circumstances presented, to warrant removal from employment. Specifically, as found by the ALJ,

Administrative Law JudgeHowever, under the circumstances, major discipline is the appropriate discipline, and I am persuaded that while I did consider removal, a 6-month suspension is appropriate given his clean record and his terrible personal circumstances at that point in time. Watching your child in pain and constant struggle including his suicide attempt and the sheer and utter stress of COVID-19, his divorce, his current marital and financial problems, coupled with drinking amounted to very poor judgment on one very unfortunate night. Accordingly, I FURTHER

AnalysisCONCLUDE that the penalty of the maximum suspension is the only one available to the department or myself in this matter as the reason for the FFD was sound, the presence of his gun while highly depressed and going to attend a bachelor party, getting highly intoxicated resulting in hospitalization were a safety hazard for him and potentially the safety of others.

While the Commission notes that the appellant, a supervisory-level law enforcement officer, is held to a higher standard, the reasons expressed by the ALJ for the reduction in penalty are supportable. In this regard, as the appellant had a lengthy unblemished career, the Commission finds that the six-month suspension imposed should serve as more than sufficient warning that any future infraction will likely result in his removal from employment. Accordingly, for the reasons expressed by the ALJ, the Commission agrees that removal would not be the appropriate result in this matter.

However, the Commission, given the appellant’s history, has some trepidation allowing his reinstatement without positively establishing his current fitness for duty. Accordingly, it further orders that the appointing authority send him for a fitness for duty examination upon his reinstatement. Should he not be fit for duty at that time, it may bring forth contemporaneous disciplinary action seeking his removal from employment based his unfitness. However, as any such unfitness would be based on his current status, it in no way affects the other remedies provided to the appellant by the Commission as detailed below.

Since the removal has been modified, 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 six months after the first date of separation until the date of actual reinstatement. 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 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.JA.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, Delores 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.

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 six-month suspension.

It further orders that the appointing authority send the appellant for a fitness for duty examination upon his reinstatement. Should he not be fit for duty at that time, it may bring forth contemporaneous disciplinary action seeking his removal from employment based his unfitness. However, any such unfitness in no way affects the other remedies provided to the appellant by the Commission as detailed below.

The Commission orders that the appellant be granted back pay, benefits, and seniority from six months 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. 44:2-2.10. 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.d/.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.d.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.