Malikul Aziz, CSC Docket No. 2022-352

BackgroundThe appeal of Malikul Aziz, Police Officer, Newark, Police Department, 20 working day suspension, on charges, was before Administrative Law Judge Kimberly A. Moss (ALJ), who rendered her initial summary decision on January 25, 2022. Exceptions were filed on behalf of the appellant and on behalf of the appointing authority, and a reply to exceptions was filed on behalf of the appellant.!

AnalysisHaving considered the record and the exceptions, as well as the ALJ's initial decision, and having made an independent evaluation of the record, the Civil Service Commission (Commission), at its meeting on March 2, 2022, did not adopt the recommendation to reverse the 20 working day suspension. Rather, the Commission remanded the matter to the Office of Administrative Law (OAL).

DISCUSSION

The appellant, a Police Officer, was immediately suspended without pay on June 23, 2021, and received a Preliminary Notice of Disciplinary Action (PNDA) on that date, indicating various violations of departmental rules.2. The specifications

! As the exceptions and reply were not instrumental in the Commission reaching its decision, they will not be specifically presented or discuased herein.

2 The PNDA indicated the appellant was “indefinitely suspended June 23, 2021 without pay.” This entry was incorrect, and just the first of a multitude of procedural errors committed by Newark in this matter. In this regard, an indefinite suspension can only be imposed when there are criminal charges that have been filed against an appellant. See N.J.A.C. 4A:2-2.7. Such a suspension cannot be imposed where there is merely a criminal investigation in process. Rather, the suspension is underlying the charges listed on the PNDA indicated that the appellant allegedly posted material regarding a confidential investigation on Facebook. On July 22, 2021, a Final Notice of Disciplinary Action (FNDA) was issued indicating that the appellant received a 20 working day suspension spanning from June 24, 2021, to July 22, 2021. The appellant appealed this FNDA to the Commission and that suspension was transmitted to the Office of Administrative Law (OAL) for a hearing.

At the OAL, the ALJ did not proceed on the merits of the charges against the appellant. Rather, the ALJ issued an initial summary decision recommending dismissing the charges against the appellant for various procedural reasons. As the Commission is rejecting that recommendation, it will discuss each of the ALJ’s reasons in conjunction with its reasons for rejecting those reasons.

RuleN.J.A.C. 4A:2-2.5 indicates, in pertinent part:

(a) An employee must be served with a Preliminary Notice of Disciplinary Action setting forth the charges and statement of facts supporting the charges (specifications), and afforded the opportunity for a hearing prior to imposition of major discipline, except:

1. An employee may be suspended immediately and prior to a hearing where it is determined that the employee is unfit for duty or is a hazard to any person if permitted to remain on the job, or that an immediate suspension is necessary to maintain safety, health, order or effective direction of public services ... However, a Preliminary Notice of Disciplinary Action with opportunity for a hearing must be served in person or by certified mail within five days following the immediate suspension.

Analysis2.An employee may be suspended immediately when the employee is formally charged with a crime of the first, second or third degree, or a crime of the fourth degree on the job or directly related to the job. See N.J.A.C. 4A:2-2.7.

(b) Where suspension is immediate under (a)1 and 2 above, and is without pay, the employee must first be apprised either orally or in writing, of why an immediate suspension is sought, the charges and general evidence in support of the charges and provided with sufficient opportunity to review the charges and the evidence in order to respond to the charges before a representative of the appointing authority. The response may be oral or in writing, at the discretion of the appointing authority.

(c) The employee may request a departmental hearing within properly termed as an immediate suspension without pay pursuant to N.J.A.C, 4A;2-2.5(a)1. For the reasons set forth later in this decision, this initial procedural violation, along with the numerous others, does not warrant the dismissal of the underlying charges.

five days of receipt of the Preliminary Notice. If no request is made within this time or such additional time as agreed to by the appointing authority or as provided in a negotiated agreement, the departmental hearing may be considered to have been waived and the appointing authority may issue a Final Notice of Disciplinary Action.

(d) A departmental hearing, if requested, shall be held within 30 days of the Preliminary Notice of Disciplinary Action unless waived by the employee or a later date as agreed to by the parties....

One of the reasons for the ALJ’s recommendation to reverse the suspension was that Newark did not hold the full departmental hearing within 30 days as required in N.J.S.A. 40A:14-149 (and presumably also in violation of N.J.A.C. 4A:2- 2.5(d)). N.J.S.A. 40A4:14-149, the so-called “80-day rule” indicates that that if any member or officer of the police department or force shall be suspended pending a hearing as a result of charges made against him, such hearing, except as otherwise provided by law, shall be commenced within 30 days from the date of the service of the copy of the complaint upon him, in default of which the charges shall be dismissed and said member or officer may be returned to duty. In this regard, the ALJ found that the appellant did receive a “departmental hearing” on July 22, 2021, but that hearing did not address the merits of the charges. Rather, it was merely a “pretermination” hearing pursuant to N.J.A.C. 4A:2-2.5(a)1 and (b) (also known as a “Loudermill” hearing, pursuant to Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985)). The appellant then had the opportunity for a “full” departmental hearing in November 2021,3 which the ALJ determined was outside the 30-day requirement. The Commission disagrees.

There is apparently much confusion regarding this matter. An immediate suspension under N.J.A.C. 4A:2-2.5(a)1 can only be imposed where the standard in that rule is met. In this regard, based on the specifications in this matter, which touch on Newark’s ability to trust the appellant with confidential information, it is clear that the standard under N.J.A.C. 4A:2-2.5(a)1 was met as the “effective direction of public services” could have been impacted if the appellant were allowed to remain on-duty. To impose this suspension without pay, per N.J.A.C. 4A:2- 2.5(b), an employee must be “apprised either orally or in writing, of why an immediate suspension is sought, [and] the charges and general evidence in support of the charges.” In this case, Newark served the PNDA on the day it sought to immediately suspend the appellant. That PNDA indicated that the appellant was suspended as of that date without pay and included the charges and the underlying specifications. As such, that service satisfied N.J.A.C. 4A:2-2.5(a)1 and (b), so long as the appellant was given the opportunity to respond. No formal proceeding or additional procedural due process was required to impose the immediate suspension at that time. In other words, the hearing on July 22, 2021, should not have been a pretermination hearing, but rather, a hearing on the merits of the charges. Instead, that hearing apparently determined that the suspension time served was sufficient for the appellant’s alleged infractions, even though that hearing was not on the merits.5

3 That hearing was based again on the initial PNDA and included the same charges and specifications, and the subsequent FNDA again imposed the same 20 working day suspension over the same time period. The appellant also appealed that FNDA to the Commission. However, as this matter is ordering that the matter of his 20 working day suspension proceed on the merits, his appeal of that second FNDA was unnecessary and considered moot.

Regarding the 30-day rule, in King v. Ryan, 262 N.J. Super. 401 (App. Div. 1993), cert. dented, 134 N.J. 474 (1993), the Appellate Division recognized that not every violation of the 30-day rule set forth in N./.S.A. 40A:14-149 mandates dismissal of the disciplinary charges. The court stated:

We recognize that the flexibility with which the apparently mandatory statutory thirty-day provision of N.J.S.A. 40A:14-149 has been invested by the courts proceeds from the need to accommodate the prompt dispositional rights of the suspended officer with the public’s overriding interest in an appropriate response to allegations of police misconduct. That flexibility is not, however, congruent with inexcusable and egregious disregard of the officer’s rights. Id. at 411.

See also, In the Matter of Gideon Bernhard, Docket No. A-1934-03T1 (App. Div. April 18, 2005); In the Matter of Joseph Gallant (MSB, decided June 12, 2001).

In this matter, the charges against the appellant should not be dismissed based on Newark’s violation of the above statute. While procedural due process in the disciplinary process is a fundamental right for a Civil Service employee, only violations that are unduly prejudicial warrant the dismissal of charges without a determination on the sufficiency of those charges, especially where those charges are serious in nature. In this case, while Newark did not hold the hearing per the above time frame, it did timely issue a complete PNDA informing the appellant of the charges and specifications. Further, it apparently attempted to remedy its violation by scheduling the hearing after it had already imposed the proposed suspension based on the procedurally botched immediate suspension.* While these violations are puzzling, most importantly, once the appellant initially appealed to the Commission, it transmitted the matter for a hearing on the merits in August 2021, even before the appointing authority's attempted remediation. In this regard, procedural deficiencies at the departmental level which are not significantly prejudicial to an appellant are deemed cured through the de novo hearing received at the OAL. See Ensslin v. Township of North Bergen, 275 N.J. Super. 352, 361 (App. Div. 1994), cert. denied, 142 N.J. 446 (1995); In re Darcy, 114 N.eJ. Super. 454 (App. Div. 1971).

4 Although, the Commission has seen where appointing authorities, usually via a negotiated agreement, have more “formal” hearing-type procedures when imposing an immediate suspension. These proceedings should be promptly scheduled and implemented and only delayed based on the agreement of the parties. Further, where such a process is in place, any immediate suspension prior to a pretermination hearing should be with pay and only converted to without pay after the hearing. The Commission also notes that the hearing requested in N.J.A.C. 4A:2-2.5(c) and undertaken in N.J.A.C. 44:2-2.5(d) is not the pretermination hearing, but rather, the departmental hearing on the merits. 5 In this regard, once Newark determined that the immediate suspension should be terminated, it needed to take one of the following actions. Issue a FNDA reversing the immediate suspension, returning the appellant to work and reimbursing him with back pay for the time period he was immediately suspended, or, as here, if it believed the underlying charges were meritorious, it could have returned the appellant to work and thereafter promptly scheduled a full departmental hearing on the merits of the charges. If the charges were ultimately sustained on the merits, it could have then issued a FNDA upholding the 20 working day suspension already served. It should not have, as it did here, issue the July 22, 2021, FNDA uphelding the suspension where the merits of the underlying charges were not adjudicated. The Commission can only surmise that the reason Newark did so is based on ita very first procedural error terming the initial suspension in the PNDA as an “indefinite” suspension, which, ultimately requires the issuance of a FNDA.

Administrative Law JudgeThe ALJ also found that Newark was in violation of N.J.S.A. 40A:14-118, which relates to, inter alia, the line of authority relating to police functions. In this regard, the ALJ found that Newark’s Police Director was not the proper individual to issue and sign the PNDA and FNDA issued to the appellant. Rather, she found that it was the Police Chief who was the proper authority.?, Although the ALd did not explicitly indicate that the charges should be dismissed on this basis, she did include this violation as part of her decision to dismiss the charges and reverse the suspension. As such, the Commission can only conclude that the ALJ also relied on this alleged violation in making her ultimate recommendation. The Commission need not make a substantive determination on this issue. Initially, unlike N.J.S.A. 40A:14-149, which explicitly provides for dismissal of disciplinary charges if violated, N.J.S.A. 40A:14-118 provides no explicit remedies for its violation. As such, it does not necessarily follow that a violation of N.J.S.A. 40A:14-118 requires the dismissal of disciplinary charges. Perhaps if the violation was purposeful or it was demonstrated that the improper authority was issuing such charges with invidious intent or for the sole purpose of bypassing the proper authority, such a remedy could be countenanced as that would evidence substantial prejudice to the employee. However, absent such a demonstration, it appears that the proper remedy for the issuance of such arguably “defective” charges would be to allow that violation to be corrected by the appointing authority. To find otherwise would be putting form over substance. Further, as indicated above, such a procedural violation, absent a showing of actual prejudice, would be considered cured via the Commission’s granting of the de novo hearing on the merits of the charges.

Analysis6 Interestingly, the record indicates that the appellant waived his November 2021 departmental hearing on the merits.

7 In its exceptions, Newark disputes this finding and points to a 2016 ordinance giving the Police Director the authority to initiate and impose discipline as well as a recent New Jersey Supreme Court case supporting that proposition. See Fraternal Order of Police, Newark Lodge No. 12 v. City of Newark, 244 N.J. 75 (2020). The appellant's reply provides rebuttal to these arguments.

Finally, the ALJ indicated that the charges should be dismissed pursuant to N.J.A.C. 40A:14-147, the so-called “45-day rule.” The relevant portions of N.J.SA. 40A:14-147 provide that “a complaint charging a violation of the [police department's] internal rules and regulations established for the conduct of a law enforcement unit shall be filed no later than the 45th day after the date on which the person filing the complaint obtained sufficient information to file the matter upon which the complaint is based.” This statute is designed to protect police officers from an appointing authority unduly and prejudicially delaying the imposition of disciplinary action. However, the statute does not prohibit an appointing authority from doing a proper investigation into a matter to determine whether disciplinary charges are necessary and appropriate. The fact that such normal and necessary investigation may span a period of time, which may exceed 45 days, does not automatically call for the dismissal of such charges. Rather, for the purposes of N.J.S.A, 40A:14-147, the charges must be brought within 45 days of the “person filing the complaint” obtaining sufficient information to bring such charges.

In this matter, the Commission rejects the ALJ’s determination that the 45- day rule was violated. What the ALJ does not consider is that the original June 23, 2021, PNDA issued to the appellant listed all of the underlying charges and specifications that ultimately were sustained on both the original July 22, 2021 FNDA, as well as the subsequent nearly identical FNDA issued after the November 2021 departmental hearing. As such, it is clear that Newark issued the charges prior to the expiration of the 45-day period. In fact, the charges were issued apparently even before it had completed its own internal investigation after it was informed that no criminal charges were being filed. While this may not be advisable, it certainly does not equate to a violation of N.J.S.A. 40A:14-147.

While this decision may appear to be unfairly rewarding Newark for its slew of procedural violations, none of these violations significantly impacted the most important factor to be cognizant of where an appointing authority seeks to impose major discipline on a Civil Service employee. That is, that the employee received sufficient due process regarding the charges and had the ability to substantively challenge those charges on the merits. In this case, while the numerous procedural violations are concerning, they did not unduly prejudice the appellant, and as indicated above, are cured via the granting of a de novo hearing.® As such, there is no procedural basis to reverse the suspension as found by the ALJ. Finally, the Commission cautions Newark in the future to properly follow the provisions of N.J.A.C. 4A:2-2.1, ef seq., in imposing major discipline on its employees in the future. Its failure to do so may subject it to dismissal of the charges, or other remedies, as well as fines and penalties pursuant to N.J.A.C. 4A:10-1.1 and

8 The Commission notes that it is always hesitant to dismiss disciplinary charges against an employee without a substantive hearing on the merits. As it is an appointing authority's burden to sustain those charges, should it fail to do so at such a hearing, an employee is afforded full restorative remedies. With that said, the Commission would not hesitate to dismiss charges on procedural grounds where appropriate.

N.d_A.C. 4A:10-2.1.

Accordingly, this matter is remanded to the OAL for a hearing on the merits of the charges.

ORDER

The Civil Service Commission remands the appeal of Malikul Aziz to the Office of Administrative Law for further proceedings.