Andrea Panera, CSC Docket No. 2022-76

BackgroundThe appeal of Andrea Panera, Senior Correctional Police Officer, South Woods State Prison, Department of Corrections, removal, effective June 29, 2021, on charges, was heard by Administrative Law Judge Kathleen M. Calemmo (ALJ), who rendered her initial decision on November 12, 2024. Exceptions were filed on behalf of the appellant and a reply was filed on behalf of the appointing authority .

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 December 18, 2024 adopted the ALJ’s Findings of Facts and Conclusions of Law and her recommendation to uphold the removal.

As indicated above, the Commission has thoroughly reviewed the exceptions filed in this matter and finds them unpersuasive. The main contention in the exceptions was that the ALJ erred in finding the appointing authority’s main witness credible. In this regard, the appellant argues that the witness was inconsistent between her testimony and written statements.

Administrative Law JudgeRegarding credibility, in her initial decision, the ALJ stated:

AnalysisIn this matter, only the credibility of the testimony of Panera and

Coursey were in issue. Petitioner argued that inconsistencies between

Coursey’s two written statements as compared to her testimony about

Panera’s actions in throwing the first punch should undermine

Coursey’s credibility. Petitioner further argued that Coursey’s testimony emphasizing how calm she remained in trying to persuade

Panera to leave was not believable. While inconsistencies were noted, they were not germane to the sustained charges against Panera.

Whether Panera punched Coursey in the face by leaning over her desk or jumping over her desk, or whether she simply grabbed Coursey’s finger to remove it from her own face are not material to the sustained charges. It is undisputed that Coursey asked Panera to leave, whether her tone was calm is not relevant. Coursey’s conduct is not at issue because Panera never maintained that Coursey prevented her from leaving. Further, there is no dispute that Coursey was in her office working when Panera entered uninvited, unannounced, and for no legitimate reason.

Panera’s testimony was motivated by her desire to return to her position as a SCPO, Panera either invented an excuse as a cover for her going into Coursey’s office or she entered the office for the sole purpose of making a copy. The record does not contain the document that Panera was allegedly copying. It was not discovered during the investigation.

Administrative Law JudgeBased on Panera’s description of the document, the investigation found no evidence of its existence. Her reasoning for not using a closer copier machine was that she was “killing two birds with one stone” because she was going to Medical anyway to get the small size gloves. As Panera testified the gloves were not stored in Room 1042, so she could have gotten her gloves and never entered Coursey’s office. Accordingly, her excuse for entering Coursey’s office is not credible. If she simply wanted to make a copy, she would have excused herself and left the office as soon as she realized the copier had been moved. Her copier excuse rings hallow due to the immediate aggression she exhibited upon her entry into Room 1042. Therefore, I FIND Panera’s justification for entering

AnalysisCoursey’s office to make a copy is implausible under the totality of the circumstances, especially because of her own admitted behavior of mumbling under her breath and becoming defensive when she discovered there was no copier in the room. If Panera had made an honest mistake in entering Room 1042, she would have turned around and left.

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.dJ. 644 (1999) (quoting State uv. 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 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). The Commission finds no persuasive evidence in the appellant’s exceptions or the record to demonstrate that the ALJ’s credibility determinations, or her findings and conclusions based on those determinations, were arbitrary, capricious or unreasonable. As noted above, the ALJ took the appointing authority’s main witness's inconsistencies into account and did not find them germane, and specifically otherwise found the appellant’s excuses “implausible.” Accordingly, the Commission has no reason to discount those determinations and adopts the findings and conclusions made therefrom.

The appellant also argues that the penalty of removal is too harsh. The Commission disagrees. Similar to its assessment of the charges, 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 utihzes, 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 N.J. 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.J. 474 (2007). Even when a law enforcement officer does not possess a prior disciplinary record after many unblemished years of employment, the seriousness of an offense may nevertheless warrant the penalty of removal where it is likely to undermine the public trust. In this regard, the Commission emphasizes that a law enforcement officer is held to a higher standard than a civilian public employee. See Moorestown v. Armstrong, 89 N.J. Super. 560 (App. Div. 1965), cert. denied, 47 N.J. 80 (1966). See also, In re Phillips, 117 N.J. 567 (1990).

Administrative Law Judgein her initial decision, the ALJ found:

I understand that the penalty of removal is substantial. However,

I am satisfied that appellant’s actions herein were egregious. As a law enforcement corrections officer, appellant is held to a higher standard of conduct. She represents law and order to the citizenry and must present an image of personal integrity and dependability. [citation omitted].

AnalysisAppellant’s primary duty is to enforce and uphold the law and she must constantly exercise tact, restraint and good judgment.

In this situation, appellant did not exercise tact, restraint and reasonable judgment, and she did not attempt to defuse a situation, which in fact, did escalate. Her conduct was abusive and violent towards a civilian employee entrusted to her care. Such action is unacceptable.

In a corrections setting, an officer must control her behavior and her emotions. After assaulting a civilian employee without provocation, it is not possible to see how the respondent could continue to allow appellant to remain in her position. Therefore, 1 CONCLUDE that progressive discipline is not warranted due to the severity of the misconduct and removal is the appropriate penalty.

In this matter, the Commission agrees with the ALJ that the appellant’s infractions are egregious and finds that they are inimical to what the public expects from a law enforcement officer, who is held to a higher standard. The appellant’s “abusive and violent” actions toward a civilian employee cannot be tolerated. As such, a penalty less than removal would serve to undermine the public trust. Accordingly, the Commission finds the penalty of removal 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 upholds that action and dismisses the appeal of Andrea Panera.

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