Theodore Christie, CSC Docket No. 2022-96

BackgroundThe appeal of Theodore Christie, County Correctional Police Officer, Mercer County Corrections Center, eight working day suspension, on charges, was heard by Administrative Law Judge Joan M. Burke (ALJ), who rendered her initial decision on July 5, 2023. Exceptions were filed on behalf of the appellant and a reply to exceptions 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, the Civil Service Commission (Commission), at its meeting on August 2, 2023, adopted the ALJ’s Findings of Facts and Conclusions of the ALJ but modified the eight working day suspension to a five working day suspension.

As indicated above, the Commission has thoroughly reviewed the exceptions filed in this matter and finds most do not require extensive comment. Nevertheless, the Commission makes the following comments. In his exceptions, the appellant argues that, in essence, that the appointing authority did not sustain its burden of proof as he had a “reasonable” excuse for his lateness. The Commission is not persuaded. In this regard, the ALJ stated:

It is undisputed that appellant was late 58 minutes to his shift on

December 17, 2019. The evidence also shows that the appellant has a history of lateness as documented in his disciplinary record. (reference omitted). Since 2017, the appellant has been disciplined over six times for lateness. The disciplines consisted of a written reprimand, four days suspension in 2017 for lateness, five days suspension in 2018 for lateness and in 2020 a three-day suspension for lateness. (reference omitted). Appellant argues that because of an extraordinary number of hours worked “demonstrate that officers, like Christie have chronic sleep deprivation due to the inadequate staffing level in place at the

Correction Center.” I am not convinced by this argument. There was no corroboration that Christie was sleep deprived. Moreover, Christie admitted that he overslept and nowhere stated he was sleep deprived.

In addition, he testified that he had a strategy on how to work, preferring the 3 p.m.to 11 p.m. and the 11 p.m. to 7 a.m. shifts to work.

His lateness on December 17, 2019, was not the first but the third infraction. I therefore CONCLUDE that the respondent has demonstrated, by a preponderance of the credible evidence, that the appellant's conduct constitutes a violation of N.J.A.C. 4A:2-2.3(a)(4)

(chronic or excessive lateness), and that such charge must be

SUSTAINED.

Upon its de novo review of the record, the Commission concurs with the ALJ’s findings and nothing in the exceptions is persuasive in showing those findings were arbitrary, capricious or unreasonable, or not based on the credible evidence in the record.

Similar to its assessment of the charges, the Commission’s review of the penalty is also de novo. Further, 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.J. 474 (2007). In this regard, the Commission emphasizes that a County Correctional Police Officer is held to a higher standard than a civilian public employee. See Moorestown v. Armstrong, 89 N.d. Super. 560 (App. Div. 1965), cert. denied, 47 N.J. 80 (1966). See also, In re Phillips, 117 N.e. 567 (1990).

The Commission agrees that the misconduct supports as disciplinary suspension in this matter. However, while the Commission acknowledges that the appellant has prior similar disciplines, there are mitigating factors in this matter which warrant consideration. Most important in that respect is the fact that some of those factors are outside of the appellant’s control, such as the evidence that the appointing authority is significantly understaffed and requires employees to undertake mandatory additional shifts. While this does not excuse the appellant’s lateness, 1t provides context and support for a slight reduction in penalty. As such, the Commission imposes a five-working day suspension which should impress upon the appellant the inappropriate nature of his misconduct and serve as a warning that any future misconduct will be met with more severe discipline, up to and including 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.edA.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. 4A: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 eight working day suspension to a five 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.J.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.