Keith Scott, CSC Docket No. 2022-517

BackgroundThe appeal of Keith Scott, Senior Correctional Police Officer, Garden State Youth Correctional Facility, Department of Corrections, removal, effective August 14, 2021, on charges, was heard by Administrative Law Judge Jeffrey N. Rabin (ALJ), who rendered his initial decision on June 7, 2023. Exceptions were filed on behalf of the appointing authority and a reply was filed on behalf of the appellant.

AnalysisHaving considered the record and the ALJ’s initial decision, including a thorough review of the exceptions and reply, and having made an independent evaluation of the record, the Civil Service Commission (Commission), at its meeting of July 19, 2023, accepted and adopted the Findings of Fact and Conclusion as contained in the attached ALJ’s initial decision and his recommendation to reverse the removal.

The Commission makes the following comments. As indicated above, the Commission thoroughly reviewed the exceptions filed by the appointing authority in this matter. In that regard, the Commission finds them unpersuasive as the ALJ’s findings and conclusions in reversing the charges and penalty imposed was based on his thorough assessment of the record and are not arbitrary, capricious or unreasonable.

In its exceptions, the appointing authority argues that the ALJ improperly relied on certain underlying departmental hearing officer’s findings. While the Commission agrees that any underlying reference or reliance on the hearing officer’s findings was improper, as the hearing at the Office of Administrative Law is de novo, it is not clear as to what actual weight, if any, the ALJ put on that finding. Rather, it appears to have been one of myriad reasons that the ALJ offered in finding that the proffered charges were not sustained by the appointing authority. Regardless, the

Commission finds after its de novo review, that the evidence presented at the hearing, without regard to any portion of the underlying hearing officer’s findings, does not establish that the appellant was guilty of the charges.

Moreover, a review of the specifications underlying the charges in the Preliminary Notice of Disciplinary Action (PNDA) and Final Notice of Disciplinary Action (FNDA) indicates that the appellant was charged with the following:

On March 7, 2021, the Garden State Youth Correctional Facility (GYCF), Special Investigations Division (SID) was notified by Principal

Investigator (PI) Brian Bonomo of a possible threat of harm to others.

Specifically, a Confidential Informant (CI [number omitted]) stated that

Senior Correctional Police Officer (Ofc.) Keith Scott (GYCF) posted a video to his “TikTok” Social Media account, threatening Custody Staff at GYCF. The CI said that staff are in fear because they know that he possesses a weapon each day at work. The CI said that this is in retaliation to staff harassing Ofc. Scott, due to his relationship with the widow of a GYCF Officer who was killed in a vehicle accident (fofficer name omitted]).

Importantly, as indicated above, the specifications underlying the charges in the FNDA and PNDA are highly specific, solely charging the appellant with threatening other employees in the video he posted. Absent a finding that the video, indeed, was specifically threatening as indicated in the specification underlying the charges, such charges cannot be sustained. It is well established that the ALJ and the Commission only have jurisdiction to adjudicate disciplinary charges and specifications which were sustained at the departmental level hearing. See Hammond vu. Monmouth County Sheriff's Department, 317 N.J. Super. 199 (App. Div. 1999); Lamont Walker v. Burlington County, Docket No. A-3485-00T3 (App. Div. October 9, 2002). In this regard, the ALJ found:

It therefore appeared that the only source of the Video being threatening was the CI. Without testimony from someone who indeed felt threatened by the Video, whether another employee or member of the public, this court cannot rely on hearsay statements made by a confidential informant to find that the Video was an attempt by appellant to threaten a specific person.

Important to the finding above is the fact that the ALJ found the appellant’s testimony regarding his reasons for posting the video credible, and those reasons did not establish any threat specific to any individual or group. 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.d. 644 (1999) (quoting State v. Locurto, 157 N.eJ. 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). In this matter, the exceptions filed by the appellant are not persuasive in demonstrating that the ALJ’s credibility determinations, or his findings and conclusions based on those determinations, were arbitrary, capricious or unreasonable. Accordingly, the Commission agrees with the ALJ that there is no competent, credible evidence that the subject video directed any specific threats towards any individual or group.

The Commission also agrees with the ALJ's findings that the general conduct charges against the appellant were not sustained. In this regard, given that the underlying specifications indicate that the specific threatening nature of the video was a required element to the misconduct, absent such a threat, the appellant could not be found to have violated those policies. Had the job specifications been drafted in a manner to indicate that the mere posting of the video was, in fact, unbecoming conduct or a violation of general conduct policies, such charges could have been considered as to whether to be upheld. Nevertheless, while the video is undoubtedly in poor taste, and used questionable lyrics and movements, the appellant was not charged with violating any specific departmental social media policy or other similar policy for merely either the posting of the video or its contents absent establishing that the video constituted a specific threat, which has not been sustained.

Since the removal has been reversed, 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 the first date of separation without pay until the date of reinstatement. Moreover, as the removal has been reversed, the appellant is entitled to reasonable counsel fees pursuant to N.d.A.C. 4A:2-2.12.

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, Dolores 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 or counsel fees 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 position.

ORDER

The Civil Service Commission finds that the action of the appointing authority in removing the appellant was not justified. The Commission therefore reverses that action and grants the appeal of Keith Scott. The Commission further orders that the appellant be granted back pay, benefits, and seniority from the first date of separation without pay until the date of reinstatement. The amount of back pay awarded is to be reduced and mitigated as provided for in N.J.A.C. 4A: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.

The Commission further orders that counsel fees be awarded to the attorney for the appellant pursuant to N.J.A.C. 4A:2-2.12. An affidavit of services in support of reasonable counsel fees 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.J.A.C. 4A:2-2.10 and N.J.A.C. 4A:2.12, the parties shall make a good faith effort to resolve any dispute as to the amount of back pay and counsel fees. However, under no circumstances should the appellant’s reinstatement be delayed pending resolution of any potential back pay or counsel fee dispute.

The parties must inform the Commission, in writing, if there is any dispute as to back pay or counsel fees 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.