James Simpson, CSC Docket No. 2022-2832

BackgroundThe appeal of James Simpson, Public Works Inspector, Millville, Department of Public Works, removal, effective May 2, 2022, on charges was heard by Administrative Law Judge Kathleen M. Calemmo (ALJ), who rendered her initial decision on March 2, 2023. Exceptions were 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 of May 3, 2023, accepted and adopted the Findings of Fact and Conclusion as contained in the attached ALJ’s initial decision.

As indicated above, the Commission has thoroughly reviewed the exceptions filed by the appellant and finds them unpersuasive. In this regard, the thrust of his arguments revolve around the penalty, where the appellant argues that the removal imposed was too harsh, and not in line with progressive discipline. In determining the proper penalty, the Commission’s review 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 NJ. 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.eJ. 474 (2007).

In this case, removal is the proper penalty. In this regard, the appellant was abjectly insubordinate without justification. Such egregious insubordinate conduct is worthy or removal without regard to progressive discipline. Progressive discipline is utilized, in part, to inform employees that their conduct was improper, and that further misconduct may lead to greater disciplinary penalties. When that misconduct is a blatant and purposeful failure to perform legitimately assigned work, that remedial aspect of progressive discipline would likely be ineffective; as it would be unlikely that an employee taking such a position would “learn” from a lesser penalty that future similar misconduct is impermissible. Moreover, where, as here, the refused duties are of significant importance to the appointing authority and may impact the public’s safety, refusal to perform such duties cannot be countenanced. Accordingly, notwithstanding the appellant’s previous years of unblemished service, the violations in this matter warrant removal from employment. This penalty is 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 affirms that action and dismisses the appeal of James Simpson.

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