Homero Almanzar, CSC Docket No. 2022-3090

BackgroundThe appeal of Homero Almanzar, County Police Sergeant, Union County, Department of Public Safety, nine working day suspension, on charges, was heard by Administrative Law Judge Kimberly A. Moss (ALJ), who rendered her initial decision on August 28, 2023. Exceptions were filed on behalf of the 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 and reply, the Civil Service Commission (Commission), at its meeting on October 11, 2023, adopted the ALJ’s Findings of Facts and Conclusion and her recommendation to modify the nine working day suspension to a six working day suspension.

The Commission makes the following comments. This matter is a question of penalty as there is no serious challenge as to the sufficiency of the charges. In its exceptions, the appointing authority argues that no reduction in penalty is warranted and contends an increase could be supported. In his reply, the appellant minimizes the severity of his misconduct and argues a minor disciplinary action is warranted, at most.

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. It is settled that the theory of progressive discipline is not a “fixed and immutable rule to be followed without question.” See Carter v. Bordentown, 191 N.d. 474 (2007). In this regard, the Commission emphasizes that a Police Officer is held to a higher standard than a civilian public employee. See Moorestown v. Armstrong, 89 Nd. Super. 560 (App. Div. 1965), cert. dented, 47 N.J. 80 (1966). See also, In re Phillips, 117 NJ. 567 (1990).

In this matter, the Commission upholds the ALJ’s recommendation to modify the nine working day suspension to a six working day suspension. Initially, the ALJ provides the following:

In this matter Almanzar has been employed by Union for twenty- two years. However, Almanzar had a one-day discipline in 2017, a five day discipline in 2019, a two day discipline in 2020 and an eight day discipline in 2021. He has had four disciplines in the last six years.

As of July 2021, IA no longer investigates late or absent from assignments, which is the basis of Almanzar’s charges. It is now done by the commanding officer. Almanzar admitted to missing the assignment because he was home with his nine-year-old daughter who was doing virtual learning. In light of the above a six day suspension is the appropriate discipline.

Clearly, the appellant’s misconduct warrants major discipline based on the appellant’s status as a supervisor. However, given the above circumstances, the Commission affirms the slight reduction in penalty as the reduction to a six working day suspension is still a major discipline under Civil Service law and rules, and will serve as a warning to the appellant that any future misconduct will incur more severe disciplinary penalties up to removal from employment.

Since the suspension has been modified, the appellant is entitled to three working days of back pay, benefits, and seniority pursuant to N.J.A.C. 4A:2-2.10. However, he is not entitled to counsel fees, N.dJ.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 discipline was imposed. Consequently, as appellant has failed to meet the standard set forth at N.J.A.C. 4A4:2-2.12, counsel fees must be denied.

ORDER

The Civil Service Commission finds that the action of the appointing authority in disciplining the appellant was justified. The Commission therefore modifies the nine working day suspension to a six working day suspension. The Commission further orders that the appellant be granted three working days of back pay, benefits and seniority. The amount of back pay awarded is to be reduced as provided for in N.J.A.C, 4A:2-2.10(d)3. Proof of income earned 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 pursuant to N.d.A.C. 4A:2-2.12.

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