JAMES KELLY, CSC Docket No. 2023-1491

BackgroundThe appeal of James Kelly, Custodial Worker, Newark School District, removal, effective November 30, 2022, on charges, was heard by Administrative Law Judge Kelly J. Kirk (ALJ), who rendered her initial decision on June 10, 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 July 24, 2024, adopted the Findings of Fact and Conclusion as found in the initial decision and the recommendation to uphold the removal.

There is no real substantive challenge to the charges in this matter, including those that were not sustained in this matter. After its de novo review, the Commission agrees with the ALJ’s determinations regarding both the charges that were dismissed and those that were sustained. The only real question in this matter, as argued in the appellant’s exceptions, is the proper penalty to be imposed. In his exceptions, the appellant argues that removal is too harsh a penalty. 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 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.JjJ.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../. 474 (2007). Even when a public employee 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.

Administrative Law JudgeIn her initial decision, the ALJ stated:

Kelly has no prior disciplinary history. Nevertheless, of paramount concern are his job functions, which include operation of potentially hazardous equipment, and his job location, which is inside a school. Although appellant presented an October 12, 2022, letter from Immersion, said letter was not presented at the October 25, 2022, departmental hearing or thereafter, despite the record being left open for Kelly to submit any documentation. There was no explanation for the failure to present the letter to the District or the hearing officer at the time. Further, although a printout reflects that Kelly “completed treatment” and the October 22, 2022, letter reflects that he “completed treatment” on October 12, 2022, after twenty-seven days in the program,

AnalysisKelly admitted that he still had a substance-abuse problem after he returned. However, there was no documentation of any further treatment or of any follow-up with a psychiatrist, as noted in his aftercare instructions. Kelly also admitted that he did not comply with the terms of the Agreement. Although Kelly was apologetic and did not intend for a student to be injured, the seriousness of the incident, his noncompliance with the Agreement, the absence of any follow-up or evidence that there is not an ongoing substance-abuse problem, and the safety considerations and risk of harm unfortunately render Kelly unsuitable for continuation in his position in a school, and I

CONCLUDE that termination was appropriate.

The Commission agrees that removal is the proper penalty in this matter. While the appellant had an unblemished disciplinary record over his more than 20 years of employment, the infractions that he committed are egregious and posed a serious safety and security risk in a school setting. The appellant brought unsecured alcoholic beverages to work, and subsequently tested positive for deleterious legal and illegal drugs. While he was apparently not impaired at work, given that he works in a setting where children are present, and given the AIL.J’s additional findings above, it is clear that the only appropriate penalty is removal. Any lesser penalty would serve to undermine the public trust. In this regard, the appellant’s position requires him to be among children of various ages, making his misconduct of even greater concern, and any potential reinstatement seriously problematic. 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 appeals of James Kelly.

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