Mario Fernandez, CSC Docket No. 2023-1790

BackgroundThe appeal of Mario Fernandez, County Correctional Police Sergeant, Hudson County, Department of Corrections, 40 working day suspension, on charges, was heard by Administrative Law Judge Kimberly A. Moss (ALJ), who rendered her initial decision on March 14, 2025. 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, and having made an independent, de novo evaluation of the record, including a thorough review of the exceptions and reply, the Civil Service Commission (Commission), at its meeting on April 9, 2025, adopted the Findings of Fact and Conclusions and the ALJ’s recommendation to modify the 40 working day suspension to a seven working day suspension.

Regarding the charges, notwithstanding the appellant’s reply to exceptions arguing to the contrary, the Commission finds that the ALJ’s findings and conclusions were appropriate and based on the credible evidence in the record. In this regard, her findings were based on her credibility determinations as well as her assessment of the video of the incident in question. In its exceptions, the appointing authority argues that the ALJ erred in finding the appellant’s testimony credible, especially in light of the video. The Commission disagrees. In this regard, 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 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 record or the appellant’s exceptions to demonstrate that the ALJ’s credibility determinations, or her findings and conclusions based on those determinations, were arbitrary, capricious or unreasonable. Moreover, the Commission finds no reason to question the ALJ’s finding that the video, notwithstanding the appointing authority's contentions, does not establish that the appellant placed his hands around the detainee’s neck. As such, the Commission affirms the ALJ’s findings regarding the charges in this matter.

Regarding the penalty, the appointing authority argues that the originally imposed 40 working day suspension is the appropriate penalty, or at least a penalty higher than the previous 20 working day suspensions in the appellant’s history. In this regard, it argues that the appellant's misconduct, coupled with his prior disciplinary history, supports the 40 working day suspension. In her initial decision, the ALJ stated:

In this matter, Fernandez has had three prior disciplines. Two twenty-day suspensions and a minor discipline. The suspension of forty days in the FNDA is not appropriate for Fernandez’s conduct of handcuffing Moreno. A discipline of seven days in this matter is appropriate.

Similar to its review of the underlying 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.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.” Moreover, 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.J. Super. 560 (App. Div. 1965), cert. denied, 47 N.J. 80 (1966). See also, In re Phillips, 117 N.eJ. 567 (1990).

The Commission finds the ALJ’s reduction of the penalty supportable. In this regard, the ALJ found that while the appellant’s handcuffing the appellant was an inappropriate use of force, that he did not otherwise use improper force. Moreover, while the Commission notes the appellant’s history of major discipline, it notes that the most recent action was five years prior to the current infraction. As such, while the sustained infraction merits a major discipline, the ALJ’s reduction to a seven working day suspension is appropriate.

Since the suspension has been modified, the appellant is entitled to 33 working days of back pay, benefits, and seniority pursuant to N.Jg.A.C. 4A:2-2.10. However, he is not entitled to counsel fees. N.d.A.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 some charges were dismissed, charges were upheld and major discipline was imposed. Consequently, as the appellant has failed to meet the standard set forth in 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 suspending the appellant was justified. However, it modifies that action to a seven working day suspension. The Commission further orders that the appellant be granted 33 working days of back pay, benefits, and seniority. The amount of back pay awarded is to be reduced and mitigated as provided for in N./.A.C. 4A4:2-2.10. 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.

Counsel fees are denied.

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