Andrew Eckert, CSC Docket No. 2023-567

BackgroundThe appeal of Andrew Eckert, Police Officer, Pleasantville, Police Department, removal, effective January 26, 2022, on charges, was heard by Administrative Law Judge Tama B. Hughes (ALJ), who rendered her initial decision on December 15, 2024. Exceptions were filed on behalf of both parties 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 February 7, 2024, adopted the Findings of Fact and Conclusion as found in the initial decision and the recommendation to uphold the removal.

Upon its de novo review of the ALJ’s thorough and well-reasoned initial decision as well as the entire record, including the exceptions and replies, 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, as well as other documentary and video evidence. 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]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 uv. 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 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 her findings and conclusions based on those determinations, were arbitrary, capricious or unreasonable. Accordingly, 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.

Moreover, the Commission rejects the remainder of the appellant’s exceptions as unpersuasive. In this regard, the appellant argues that the ALJ erred by not permitting him to present an expert witness. The Commission is not persuaded. The ALJ presented detailed analyses of the testimony of the witnesses in conjunction with her assessment of the sufficiency of the documentary and video evidence. Based on these assessments as well as the standards for use of force, she determined that the appellant’s actions clearly violated those standards. The Commission agrees.

The appellant also argues that he should receive a lesser penalty based, in part, on the fact that another officer involved who he contends used excessive force only received a six-month suspension while he was removed for unspecified “political or other motive[s].” The Commission rejects this argument. The Commission has no record of the other officer appealing the purported suspension. As such, the matter of the charges and penalty for that officer is not before the Commission and 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.

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.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

! 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’s unsubstantiated and vague argument that his removal as compared to his colleague was based on “political or other motive[s]” is clearly insufficient, 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.eJ. 567 (1990).

Administrative Law JudgeIn her initial decision, the ALJ found the appellant’s actions sufficiently egregious to support removal without regard to progressive discipline. The Commission agrees with the ALJ that the appellant’s misconduct was egregious and wholly inappropriate for a law enforcement officer and worthy of removal without regard to progressive discipline. His actions fall well below what is expected of a Police Officer. Such 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 Andrew Eckert.

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