ALEXANDER PLAZA, CSC Docket No. 2023-2670

BackgroundThe appeal of Alexander Plaza, Police Officer, Lindenwold. Police Department. removal, effective May 18, 2023, on charges, was heard by Administrative Law Judge Jeffrey N. Rabin (ALJ), who rendered his initial decision on February 15, 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 March 20, 2024, adopted the ALJ’s Findings of Facts and Conclusions and his 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 and the reply, the Commission agrces with the ALJ’s determinations regarding the charges, which were substantially based on his 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 Matter of J.W.D., 149 N.J. 108 (1997). “[T]mal 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 exphicitly enunciated if the record as a whole makes the findings clear. Jd. 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). In this matter, the exceptions filed by the appellant are not persuasive in demonstrating that the ALJ’s credibility determinations, or his findings and conclusions based on those determinations, were arbitrary, capricious or unreasonable. Accordingly. the Commission finds nothing in the record to question those determinations or the findings and conclusions made therefrom.

The other issue in this matter is the proper penalty to be imposed. Upon its de novo review of the ALJ’s determination in that regard, including the exceptions and reply filed by the parties, the Commission agrees with the ALJ’s determination to uphold the removal. 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 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 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.J. 567 (1990).

Initially, the appellant argues that he should receive a lesser penalty based on the fact that another officer received a lesser penalty for similar misconduct and a litany of other cases presenting similar misconduct also carried penalties less than removal. The Commission is unpersuaded. The appellant made the same argument to the ALJ, who has already sufficiently addressed these arguments in his initial decision. Moreover, as the matter of the charges and penalty for the other officer is not before the Commission it, therefore, cannot and will not engage in a comparative penalty analysis. Moreover, even if that matter were before the Commission. in imposing the proper penalty, the Commission is generally solely concerned with the misconduct committed by the individual before it, and whether such misconduct is worthy of the penalty initially imposed.' In this case, it is clear that the appellant’s misconduct is worthy or removal.

Administrative Law JudgeThe ALJ performed a thorough analysis of the proper penalty to be imposed in this matter.? In finding the appellant’s misconduct egregious and worthy of removal without regard to progressive discipline, the ALJ indicated that the:

... Appellant’s truck slammed into the rear of the vehicle that was standing still, waiting to make a turn. The impact of the crash was so great that the accident pushed the vehicle across the northbound lane, over the curb, and onto the lawn of a nearby church. Appellant Plaza did not stop his vehicle or immediately pull off the road, and, more specifically, he did not pull over to the front lawn of the church to check on the welfare of the driver he hit. Instead, appellant continued driving

Analysis... and then parked his vehicle .. .. One of the responding Winslow police officers stated that this spot was one mile from the crash site, while the appellant argued that it was only three tenths of a mile from the crash. Either way, appellant failed to remain at the scene of an accident and failed to act like an officer of the law by seeing if the driver he hit required immediate medical help.

The off-duty state trooper who followed appellant’s truck as he fled the accident scene, approached appellant and noted a cell phone in his hand. Yet there was no credible evidence that appellant was calling in the accident to his sergeant, 911 or Winslow Township dispatch.

When asked why he fled the scene, appellant’s only remarks amounted to a concern for getting his car out of the road for traffic safety concerns.

However, appellant never explained why he did not simply pull into the church parking lot, where the vehicle he hit landed after the crash.

While appellant honestly disclosed to the responding Winslow officer that he had a gun in his possession, the fact was that appellant had a loaded handgun with an additional magazine in his vehicle

+ The Commission notes that there are situations where a comparative penalty analysis is appropriate. Such situations include where an appellant contends that the penalty imposed as compared to other similarly situated employees was based on unlawful purposes, such as discrimination based on a protected category, reprisal or other unlawful reasons. The appellant makes no such claims in this matter.

Administrative Law Judge2 The ALJ indicated that the appellant testified that he had a prior “six-month suspension for working side jobs.” This appears inaccurate as the appellant testified that he received a counscling for that infraction along with a six-month suspension from working side jobs. which is not a formal disciplinary action under Civil Service law and rules. Additionally, the Commission could find no record of a six- month disciplinary suspension in the appellant’s official personnel records. Regardless, this error is not relevant as both the ALJ and the Commission based the penalty imposed on the egregious nature of the appellant’s misconduct.

Analysisconsole, and the weapon was not secured in a holster, lockbox, or other kind of container.

The alcohol influence test administered at appellant's vehicle after the accident .. . indicated that appellant’s blood alcohol content was 0.19%, well over the New Jersey limit of 0.08%. Therefore, appellant was driving while intoxicated.

The Commission wholeheartedly agrees that the appellant’s egregious actions in this matter fall well short of what is expected of a public employee, and especially that of a law enforcement officer. Such actions clearly serve to undermine the public’s trust and as such, 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 Alexander Plaza.

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