Keith Martinez, CSC Docket No. 2022-581, 2022-582

BackgroundThe appeals of Keith Martinez, County Correctional Police Officer, Hudson County, Department of Corrections, 60 and 90 working day suspensions, on charges, were heard by Administrative Law Judge William J. Courtney (ALJ), who rendered his initial decision on December 16, 2022. 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 February 1, 2023, the Commission adopted the ALJ’s recommendation to modify the 60 working day suspension to a 40 working day suspension and reverse the 90 working day suspension.

As indicated above, the Commission thoroughly reviewed the exceptions and reply filed in this matter. Upon that review, it does not find anything persuasive to overturn the ALJ’s recommendations regarding the charges or the reduction in penalty regarding the 60 working day suspension or the charges and reversal of the 90 working day suspension. The ALJ's initial decision was thorough and well- reasoned and his findings and conclusions were based on his assessment of the credibility of the witnesses. In this regard, upon its de novo review of the record, 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 1ts 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 appointing authority 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. As such, the Commission has no reason to question those determinations or the findings and conclusions made therefrom.

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.d.A.R. 2d (CSV) 463. In this matter, the Commission agrees with the ALJ that the sustained infractions are worthy of a 40 working day suspension. In this regard, given the ALJ’s findings of lack of intent and partial compliance, and in light of the appellant’s disciplinary history, that suspension should serve as sufficient warning to the appellant that any future infractions may lead to increasingly higher disciplinary penalties, including removal.

Regarding the 60 working day suspension modified to a 40 working day suspension, the appellant is entitled to 20 working days of mitigated back pay, benefits, and seniority pursuant to N.d.A.C. 4A:2-2.10. However, the appellant is not entitled to counsel fees for this matter. N.J.A.C. 4A:2-2.12(a), which 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). While 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.J.A.C. 4A4:2-2.12, counsel fees must be denied regarding the 40 working day suspension.

Since the 90 working day suspension has been reversed, the appellant is entitled to 90 working days of mitigated back pay, benefits, and seniority pursuant to N.J.A.C, 44:2-2.10, He is also entitled to reasonable counsel fees for the reversed suspension pursuant to N.J.A.C. 4A:2-2.12. The Commission notes, however, under no circumstances should counsel fees for this matter exceed 50% of the total counsel fees for both matters.

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.

ORDER

60 Working Day Suspension

The Civil Service Commission finds that the action of the appointing authority in suspending the appellant was justified and modifies that action to a 40 working day suspension. The Commission further orders that the appellant be granted 20 days of back pay, benefits, and seniority.

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. Pursuant to N.J.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.

Counsel fees are denied pursuant to N.eJ.A.C. 4A:2-2.12.

90 Working Day Suspension

The Civil Service Commission finds that the action of the appointing authority in suspending the appellant was not justified and reverses that action. The Commission further orders that the appellant be granted 90 days of back pay, benefits, and seniority. The amount of back pay awarded is to be reduced and mitigated as provided for in N.d/.A.C. 4A:2-2.10.

The Commission also orders reasonable counsel fees pursuant to N.d.A.C. 4A:2-2.12(a). However, under no circumstances should counsel fees for this matter exceed 50% of the total counsel fees for both matters.

Proof of income earned, an affidavit of mitigation and an affidavit 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:2-2.12, the parties shal! make a good faith effort to resolve any dispute as to the amount of back pay or counsel fees.

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.