Michael La Montagne, CSC Docket No. 2023-2634

BackgroundThe appeal of Michael La Montagne, Police Officer, Little Egg Harbor Township, Police Department, removal, effective April 19, 2023, on charges, was heard by Administrative Law Judge Rebecca C. Lafferty (ALJ), who rendered her initial decision on March 11, 2024. Exceptions were 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, the Civil Service Commission (Commission), at its meeting on April 10, 2024, adopted the ALJ’s Findings of Facts and Conclusions and her recommendation to uphold the removal.

Upon its de novo review of the ALJ’s initial decision as well as the entire record, including the exceptions filed by the appellant, the Commission agrees with the ALu’s determinations regarding the charges, which were substantially based on her assessment of the credibility of the testimony of the witnesses. 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 Matier of J.W.D., 149 N.f. 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 vu. 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 Nef. Super. 527 (App. Div. 2004). The exceptions filed by the appellant in this matter are not persuasive in demonstrating that the ALJ’s credibility determinations, or her findings and conclusions based on those determinations, were arbitrary, capricious or unreasonable. In that regard, the ALJ made detailed credibility determinations and corresponding findings based on those determinations. The ALJ specifically found that the appellant’s testimony was not credible, as at times it was self-serving and non-sensical and at other times it was contradictory, particularly in light of the evidence presented. Therefore, upon its review, the Commission finds nothing in the record or the appellant’s exceptions to question those determinations or the findings and conclusions made therefrom.

Similar to its assessment of the charges, the Commission’s review of the penalty is also 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.” 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 disciphnary 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.eJ. 80 (1966). See also, In re Phillips, 117 N.dJ. 567 (1990).

Clearly, the appellant’s egregious misconduct in this matter warrants removal from employment. Regardless of a lack of a disciplinary history in his short-term employment, the appellant’s actions fall well short of what is expected of a Police Officer and certainly are likely to undermine the public trust. As stated by the ALJ, the “appellant failed to adhere to any of these standards. What is most troubling about appellant's behavior was that it was a repeated course of conduct over a

; significant period of time... In all of the incidents . .. [the] appellant failed to exercise tact, restraint and good judgment.” As such, contrary to the appellant’s exceptions, the Commission finds the penalty of removal neither disproportionate to the offenses 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 Michael La Montagne.

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