Sha-Keana Davis, CSC Docket No. 2023-742

BackgroundThe appeals of Sha-Keana Davis, County Correctional Police Officer, Mercer County Corrections Center, six, 10, 10 and 20 working day suspensions, on charges, were heard by Administrative Law Judge William T. Cooper, IH (ALJ), who rendered his initial decision on November 24, 2023. Exceptions were filed on behalf of the appellant and a reply to exceptions 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 December 20, 2023, modified the suspensions to a one working day suspension, a five working day suspension, a five working day suspension and a 10 working day suspension.

As indicated above, the Commission has thoroughly reviewed the exceptions filed in this matter and finds them generally unpersuasive. The Commission makes the following comments. In her exceptions, the appellant argues that the ALJ improperly considered charges not upheld on the Final Notices of Disciplinary Action (FNDA). Even assuming, arguendo, the accuracy of this assertion, the Commission finds that the ALJ appropriately upheld the charges that were found on the FNDAs. Even if the ALJ considered charges that were not sustained at the departmental level, the Commission would not consider those charges.

The appellant also contends that the charges underlying the six working day suspension are, in essence duplicative, and the duplicative charges should be dismissed. She further argues that under the appointing authority’s penalty schedule, the upheld misconduct should therefore only receive a one working day suspension. The Commission is not persuaded as to the duplication of charges. Regardless of the proffered charges, the ALJ found that the preponderance of the evidence supported the misconduct alleged.

Administrative Law Judge1 The Administrative Law Judge indicated that while these matters were not formally consolidated, they were heard together.

AnalysisAs such, the only question is the proper penalty to be imposed. In that regard, the Commission notes that its review of the penalty is de novo, and while it can be guided by, it is not bound by the appointing authority’s penalty schedule in determining the proper penalty. See In the Matter of Gregory McDaniel, Docket No. A-5583-02T2 (App. Div. May 24, 2004); In the Matter 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). Further, 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.S.A.R. 2d (CSV) 463. It is settled that the theory of progressive discipline is not a “fixed and immutable rule to be followed without question.” See Carter uv. Bordentown, 191 N.J. 474 (2007). Upon its review, it finds that the penalties imposed, in light of the actual misconduct, which was mainly attendance-related, are excessive. In this regard, while the Commission acknowledges that the appellant has numerous previous infractions and is not minimizing the effect that attendance infractions can have on an appointing authority, it finds that the proper penalties to be imposed for the infractions committed are a one working day suspension, a five working day suspension, a five working day suspension and a 10 working day suspension. These penalties should be sufficient to impress on the appellant that any future similar misconduct will result in increased penalties, up to removal from employment.

Since the suspensions have been modified, the appellant is entitled to 25 working days of back pay, benefits, and seniority pursuant to N.J.A.C. 4A:2-2.10. However, she is not entitled to counsel fees. N.J.A.C. 4A:2-2.12(a) provides for the award of counsel fees only where an employee has prevailed on all or substantially all of the primary issues in an appeal of a major disciplinary action. The primary issue in the disciplinary appeal is the merits of the charges. See Johnny Walcott v. City of Plainfield, 282 N.J. Super. 121,128 (App. Div. 1995): In the Matter of Robert Dean (MSB, decided January 12, 1993); In the Matter of Ralph Cozzino (MSB, decided September 21, 1989). In the case at hand, although the penalties were modified by the Commission, the charges were sustained, and discipline was imposed.

Consequently, as the appellant has failed to meet the standard set forth at N.J.A.C. 4A:2-2.12, counsel fees must be denied.

ORDER

The Civil Service Commission finds that the action of the appointing authority in suspending the appellant was justified. However, it modifies the suspensions to a one working day suspension, a five working day suspension, a five working day suspension and a 10 working day suspension. The Commission further orders that the appellant be granted 25 working days of back pay, benefits, and seniority. The amount of back pay awarded is to be reduced as provided for in N.J.A.C. 4A:2- 2.10(d)3. Proof of income earned shall be submitted by or on behalf of the appellant to the appointing authority within 30 days of issuance of this decision.

Counsel fees are denied.

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