PETER GOBEL, CSC Docket No. 2023-784, 2023-785

BackgroundThe appeals of Peter Gobel, Laborer 1, Linden, Department of Public Property and Community Services, 20 and 40 working day suspensions, on charges, were heard by Administrative Law Judge Thomas R. Betancourt (ALJ), who rendered his initial decision on November 29, 2023. Exceptions were filed on behalf of the appointing authority and a reply to exceptions was filed on behalf of the appellant.

AnalysisHaving considered the record and the ALd’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 January 17, 2024, adopted the ALJ’s Findings of Facts. Additionally, it adopted his recommendation to modify the 20 working day suspension to a 10 working day suspension. However, it did not adopt his recommendation to modify the 40 working day suspension to a 10 working day suspension. Rather, the Commission upheld the 40 working day suspension.

In these matters, the question is the proper penalty to be imposed as the ALu’s findings regarding the cHarges are amply supported in the record. Thus, upon its de novo review, the Commission adopts those findings. However, similar to the Commission’s review of the charges, its 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. It is settled that the theory of progressive discipline is not a “fixed and immutable rule to be followed without question.” See Carter v. Bordentown, 191 N.J. 474 (2007).

In this matter, the Commission notes that the ALJ does not provide extensive analysis of the penalties in these matters. In this regard, the ALJ stated, regarding the 20 working day suspension:

Petitioner has a prior disciplinary history consisting of a written warning for not timely reporting a work injury, dated September 15,

2021; a one day suspension for calling in sick outside the time frame to do so, dated June 3, 2022; and, a one day suspension for calling in sick outside the time frame to do so, dated May 22, 2022.

Mr. Gobel has been employed by the City of Linden since April

Administrative Law Judge2020. I do not find his prior disciplinary history to be significant.

However, Mr. Gobel disobeyed a direct directive from his supervisor. This I find to be a serious infraction. Ten days suspension is appropriate for the sustained charges in FNDA#1.

AnalysisNotwithstanding the relatively scant discussion above, the Commission agrees that. the proper penalty for that matter should be reduced from a 20 working day suspension to a 10 working day suspension. In this regard, the Commission finds that, while the appellant’s insubordination was unwarranted, a 10 working day suspension, the appellant’s first major discipline, is sufficient under the circumstances, to impress upon the appellant that any similar future misconduct will result in increased disciplinary action, up to removal from employment.

Regarding the second matter, the Commission does not agree that the 40 working day suspension should be reduced to a 10 working day suspension. In this regard, in his relatively short employment history, the appellant has accrued two previous minor disciplinary suspensions and the 10 working suspension imposed for the above matter. Thus, it is appropriate, under the tenets of progressive discipline, to impose a more significant penalty to clearly indicate to the appellant that his repeated infractions cannot be continued, and as indicated previously, will merit increased disciplinary penalties. Given the infractions and the disciplinary history cited, the 40 working day suspension is appropriate.

Since the 20 working day suspension have been modified, the appellant is entitled to back pay, benefits, and seniority pursuant to N.J.A.C. 4A:2-2.10. However, he 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 these cases, although the penalty were modified by the Commission, the charges were sustained, and major 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

Order as to 20 working day suspension

The Civil Service Commission finds that the action of the appointing authority in suspending the appellant was justified. The Commission therefore modifies that suspension to a 10 working day suspension. The Commission further orders that the appellant be granted 10 working days of back pay, benefits, and seniority. The amount of back pay awarded is to be reduced as provided for in Nid.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 pursuant to N.J.A.C. 4A:2-2.12.

Order as to 40 working day suspension

The Civil Service Commission finds that the action of the appointing authority in suspending the appellant for 40 working days was justified. The Commission upholds that action and dismisses the appeal of Peter Gobel.

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