Darrin DeWitt, CSC Docket No. 2023-2770

BackgroundThe appeal of Darrin DeWitt, Police Captain, Hackensack, Police Department, 10 working day suspension, on charges, was heard by Administrative Law Judge Kimberly A. Moss (ALJ), who rendered her initial decision on April 7, 2025. 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, the Civil Service Commission (Commission), at its meeting on May 21, 2025, adopted the ALJ’s Findings of Facts and Conclusions of Law and her recommendation to uphold the 10 working day suspension.

As indicated above, the Commission has thoroughly reviewed the exceptions and finds them unpersuasive. Of note, the appellant argues that the charges should be dismissed pursuant to O’Rourke v. City of Lambertville, 405 N.J. Super. 8 (2008) since the appointing authority did not follow the Attorney General (AG) Guidelines for internal investigations. In her initial decision, the ALJ stated that any irregularities or violations of the AG Guidelines were cured as the Bergen County Prosecutor's Office performed the investigation. In this case, the Commission agrees. Initially, the Commission notes that procedural deficiencies at the departmental level which are not significantly prejudicial to an appellant are deemed cured through the de novo hearing received at the Office of Administrative Law. See Ensslin v. Township of North Bergen, 275 N.J. Super. 352, 361 (App. Div. 1994), cert. denied, 142 Nef. 446 (1995); In re Darcy, 114 N.J. Super. 454 (App. Div. 1971). Moreover, the Court in O'Rourke, supra at 23, stated:

In summary, we are convinced that when a law enforcement agency adopts rules pursuant to N.J.S.A. 40A:14-181 to implement the

Attorney General's Guidelines, the agency has an obligation to comply with those rules. Because it failed to do so, and because the deficiencies tainted the disciplinary process, the City's decision to remove plaintiff from his position cannot stand. (emphasis added).

Initially, the Commission notes that the O’Rourke matter was decided in a jurisdiction not covered under the Civil Service Act, i.e., Title 11A of the New Jersey Statutes. Regardless, where applicable, the Commission believes it should also be applied to Civil Service jurisdictions. A plain reading of the above holding indicates that in order to find that charges should be dismissed, there must be a showing that the deficiencies also tainted the disciplinary process. In this matter, the ALJ found that the Bergen County Prosecutor’s Office investigation was sufficient to defeat any violations of the AG Guidelines. The Commission agrees as it finds nothing in the record or the exceptions to establish that the departmental-level disciplinary process was so tainted as to procedurally dismiss the charges.

The appellant’s exceptions also argue for a reduced penalty. The Commission is not persuaded. Similar to its assessment of the charges, the Commission’s review of the penalty is de nove. 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). 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).

Here, it is clear that as a superior-level law enforcement officer, who, per above, is held to a higher standard, the appellant’s misconduct was improper and worthy of a significant disciplinary penalty. As such, the Commission finds the penalty of a 10 working day suspension neither disproportionate to the offense nor shocking to the conscious.

ORDER

The Civil Service Commission finds that the action of the appointing authority in suspending the appellant was justified. The Commission therefore upholds that action and dismisses the appeal of Darrin DeWitt.

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