Brian Crimmins, CSC Docket No. 2023-2228

BackgroundThe appeal of Brian Crimmins, Fire Chief, Hoboken, Department of Public Safety, demotions to Fire Fighter, effective January 31, 2023 on charges, was heard by Administrative Law Judge Susana E. Guerrero (ALJ), who rendered her initial decision on October 3, 2024. 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 October 16, 2024 adopted the ALJ’s Findings of Facts and Conclusions of Law and her recommendation to reverse the removal and impose a written warning. !

As indicated above, the Commission has thoroughly reviewed the exceptions in this matter and finds them wholly unpersuasive. It makes the following comment. The burden of proof in a disciplinary matter is on the appointing authority to show by a preponderance of the credible evidence in the record that the proffered charges are sustainable. For all the reasons expressed by the ALJ in her initial decision, the Commission agrees that the appointing authority has fallen short of this burden in this matter for the majority of the charges.

In this regard, the Commission agrees with the ALJ’s determinations regarding the charges, which were substantially based on her assessment of the credibility of the testimony of the witnesses. The Commission acknowledges that the

| The ALJ indicates the penalty as a “written warning” in the initial decision. However, the minimum penalty that is considered disciplinary in nature under Civil Service law and rules is a written reprimand. See N..J.A.C. 4A:2-3.1(a).

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 ALwJ’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).

Administrative Law JudgeIn her decision, the ALJ stated that, although the Battalion Chiefs testified that they disliked the appellant’s leadership style and questioned his policies, none of the witnesses could give any example of any problems with the undertaking and the effectuation of the ability of the appellant to perform the duties of Fire Chief. In particular, the ALJ found that:

Despite the [Battalion Chief's] opinions on Crimmins’ ability to serve as

AnalysisChief, and their testimony that they feel he is not an effective or trustworthy leader, and that he should not return to his position, the

City has failed to present the factual support needed to demonstrate, by a preponderance of the evidence, that Crimmins is unable, or unfit to lead the {Hoboken Fire Department] and perform the duties required of the Chief.

While the exceptions challenge these credibility determinations, the Commission finds no persuasive evidence in the record to demonstrate that the ALJ’s credibility determinations, or her findings and conclusions based on those determinations, were arbitrary, capricious, unreasonable or otherwise in error. Accordingly, the Commission finds nothing in the record to question those determinations or the findings and conclusions made therefrom.

With regard to the penalty, the exceptions argue that Crimmins’ behavior was so egregious, so there was no need to follow progressive discipline. However, the Commission rejects this assertion, The Commission’s review of the proper penalty in a disciplinary matter is de novo. In this matter, based on the reasoning presented by the ALJ and the mitigating factors presented, the Commission finds that a written reprimand is the proper penalty.

Since the demotion has been reversed, the appellant is entitled to be reinstated as Fire Chief, with differential back pay, benefits, and seniority pursuant to N.J.A.C. 4A:2-2.10 from the first date of his demotion to Fire Fighter until the date of reinstatement as Fire Chief. However, he is not entitled to counsel fees. N.e/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 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.

This decision resolves the merits of the dispute between the parties concerning the disciplinary charges and the penalty imposed by the appointing authority. However, per 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. In the interim, as the court states in Phillips, supra, if it has not already done so, upon receipt of this decision, the appointing authority shall immediately reinstate the appellant to his position.

ORDER

The Civil Service Commission finds that the action of the appointing authority in disciplining the appellant was justified. The Commission therefore modifies the demotion to a written reprimand. The Commission further orders that the appellant be granted differential back pay, benefits and seniority.

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

The parties must inform the Commission, in writing, if there is any dispute as to back pay 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.