Benjamin Markus, CSC Docket No. 2023-2658

BackgroundThe appeal of Benjamin Markus, County Correctional Police Officer, Monmouth County, Sheriffs Office, removal, effective May 2, 2023, on charges, was heard by Administrative Law Judge Joan M. Burke (ALJ), who rendered her initial decision on November 9, 2023. 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 December 6, 2023, adopted the Findings of Fact and Conclusion as found in the initial decision and the recommendation to uphold the removal.

There is no issue regarding the charges in this matter as the misconduct alleged is essentially conceded to by the appellant. The only question is the proper penalty. In this matter, the ALJ found:

The appellant's actions of taking his personal cell phone into a secure area of the MCCI, coupled with taking a screenshot of confidential information located on the Central Control computer and disseminating it to an unauthorized person demonstrates brazenness, a reckless attitude and egregious conduct.

Administrative Law JudgeThe ALJ further stated:

The appellant’s prior disciplinary history (R-17) shows that, in the approximately twelve years since the appellant worked for the

AnalysisCounty, he has had three minor disciplines; and one major discipline for taking his cell phone into the secured perimeter of the facility which occurred on December 30, 2022. The appellant was suspended for thirty days for the December 30, 2022, major discipline. (R-24.) While the incident in this matter occurred before the December 30th disciplinary matter, he was not charged until after a thorough investigation was done. The PNDA was issued on April 5, 2023, and charges were sustained after a departmental hearing in March 2023. (R-1.) If this matter should be considered as a first offense, the penalty of termination for a first-time offense is certainly a serious disciplinary penalty.

However, appropriate focus must be given to the nature and seriousness of the appellant’s current actions. The appellant’s conduct on December

16 or December 17, 2022, was a serious offense committed by someone in a safety-sensitive position and the penalty should reflect the same . .

Ultimately, the ALJ concluded that:

The appellant’s status as a law enforcement officer places his conduct under heightened scrutiny ... While I understand there is a plausible reason for taking his phone into the secured perimeter because he was concerned about his mother, there is no excuse for what he did next. He accessed the computer in the Control Unit, took a screenshot of a jail incident on one of the inmates and then sent it to Julie M., the inmate’s wife, a civilian and an unauthorized third party. This is simply unacceptable.

Accordingly, the ALJ recommended upholding the removal. The Commission agrees.

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.d.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 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. In this regard, the Commission emphasizes that a law enforcement officer, such as 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.eJ. 80 (1966). See also, In re Phillips, 117 N.ef. 567 (1990).

In his exceptions, the appellant argues that the removal should be modified. In essence, the appellant attempts to minimize the nature of his misconduct and rely on his previous minor disciplinary history. While the Commission acknowledges the appellant’s prior lack of a major disciplinary record, it wholeheartedly agrees with the ALJ that the appellant’s egregious actions in this matter fall well short of what is expected of a publicemployee. Notwithstanding the appellant’s attempts to justify, rationalize or minimize the serious nature of his misconduct, the Commission finds that his actions were egregious and wholly inappropriate, especially for a County Correctional Police Officer, who is held to a higher standard. The appellant’s actions would clearly tend to undermine the public trust and as such, 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 Benjamin Markus.

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