Samuel Doherty, CSC Docket No. 2023-630

BackgroundThe appeal of Samuel Doherty, County Correctional Police Officer, Ocean County, Department of Corrections, 90 calendar day suspension, on charges, was heard by Administrative Law Judge Deirdre Hartman-Zohlman (ALJ), who rendered her initial decision on November 12, 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 December 18, 2024 adopted the ALJ’s Findings of Facts and Conclusions of Law and her recommendation to uphold the 90 calendar day suspension.

As indicated above, the Commission has thoroughly reviewed the exceptions filed in this matter and finds them unpersuasive. The main contention in the exceptions is that the penalty imposed was too severe. The Commission rejects this contention.

Administrative Law JudgeRegarding the penalty, in her initial decision, the ALJ stated:

The unrefuted facts are clear: Doherty possessed a cell phone in the secure area of the jail while on duty. While he did so unintentionally, the phone was left in a bathroom near the dining hall, where a non- officer found it and reported its presence. This was an area where trustee inmates had access and could have found the phone.

AnalysisOne of the central purposes of the policy for the prohibition of unsanctioned phones in the jail is that they create a potentially life- threatening danger if they were to end up in the hands of an inmate.

Although Doherty’s actions were inadvertent, the consequences of his actions demonstrate the real and potential dangers that the presence of unsanctioned cell phones creates. Lastly, Doherty was aware of the policy and signed an acknowledgment of it on June 1, 2021.

Although Doherty does not have any prior discipline, his position involved public safety, and his actions had the potential to cause great risk of harm. Grievous harm has previously occurred when a cell phone has gotten into the hands of an inmate at this jail. Respondent has addressed the serious concerns of unsanctioned cell phones and has explicitly included in the policy a disciplinary schedule for violations of this policy, a progressive disciplinary schedule—starting with 90 days for the first infraction, 180 days for a second infraction, and removal for a third infraction.

Administrative Law JudgeI CONCLUDE that considering principles of progressive discipline, the imposition of a 90-day suspension without pay is appropriate for the sustained charges ....

AnalysisIn its de novo review, the Commission initially notes that it is not bound by the appointing authority’s penalty schedule in determining the proper penalty. See In the Maiter of Gregory McDaniel, Docket No. A-5583-02T2 (App. Div. May 24, 2004); In the Matier of Leonard Wilson (MSB, decided April 6, 2005); In the Matter of Patricia Everingham (MSB, decided March 13, 2003); In the Matter of George Roskilly (MSB, decided November 20, 2002). Nevertheless, it agrees with both the appointing authority and the ALJ that a 90 calendar day suspension is warranted.

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.AR. 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 uv. 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.” 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 Nid. Super. 560 (App. Div. 1965), cert. denied, 47 N.J. 80 (1966). See also, In re Phillips, 117 NA. 567 (1990).

In this matter, the Commission agrees with the ALJ who cogently detailed the serious potential consequences for the appellant’s misconduct, even if unintentional. Thus, a significant disciplinary penalty is justified as both the safety and security of the facility, its employees and the inmates were potentially imperiled. Moreover, the appellant, as a law enforcement officer, is held to a higher standard. Accordingly, the imposition of a 90 calendar day suspension will serve as sufficient reminder to the appellant as to the significance of his misconduct and that any future infractions may lead to more severe disciplinary penalties. Accordingly, the Commission finds the 90 calendar day suspension imposed 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 the 90 calendar day suspension and dismisses the appeal of Samuel Doherty.

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