Montavious Patten, CSC Docket No. 2024-1054

BackgroundThe appeal of Montavious Patten, Police Officer, Jersey City Police Department, removal, effective October 2, 2023, on charges, was before by Administrative Law Judge Patrice E. Hobbs (ALJ), who rendered her initial decision on March 22, 2024. Exceptions and replies to the exceptions were filed on behalf of the appellant and on behalf of the appointing authority.

AnalysisHaving considered the record and the attached ALJ’s initial decision, including a thorough review of the exceptions and replies, and having made an independent evaluation of the record, the Civil Service Commission (Commission), at its meeting of May 1, 2024, accepted and adopted the Findings of Fact and Conclusions as contained in the ALJ’s initial decision and her recommendation to uphold the removal.

The Commission makes the following comments. As indicated above, the Commission thoroughly reviewed the exceptions filed on behalf of the appellant in this matter. The Commission finds the exceptions unpersuasive. In this regard, the appellant argues that the Final Notice of Disciplinary Action (FNDA) did not charge him for purchasing cannabis from an unlicensed dispensary. However, the FNDA removed the appellant for testing positive for cannabinoids (THC). Thus, for an employee to raise an affirmative defense under the New Jersey Cannabis, Regulatory, Enforcement Assistance, and Marketplace Modernization Act (CREAMMA), N.J.S.A. 24:61-31, et seg., the marijuana/cannabis that was purchased and ingested must have come from a regulated source. See also N.J.S.A. 17:30-2.1. In the instant matter, apart from the appellant’s exceptions and reply which indicate that his testimony was that his friend “Sal” bought the cannabis legally for him without remuneration, and thus obtaining and using regulated cannabis, there is no corroborating competent evidence that he did. There was no testimony from Sal, nor any receipts provided. Thus, the ALJ found that the appellant purchased cannabis in violation of CREAMMA. Therefore, the ALJ properly determined that the charges of conduct unbecoming a public employee; insubordination, for failing to follow the New Jersey Attorney General’s Law Enforcement Testing Policy and the appointing authority’s drug testing policy; and other sufficient cause relating to violations of departmental rules were sustained.

Regarding the appointing authority’s exceptions, 1t maintains that the charges of inability to perform and neglect of duty levied on the appellant should have been sustained by the ALJ since the appellant is legally barred from possessing a firearm by federal law due to his use of marijuana/cannabis. Thus, it maintains that, while removal should be affirmed, the ALJ’s decision should be modified. However, as set forth in In the Matter of Norhan Mansour (CSC, decided August 2, 2023) and In the Matter of Omar Polanco (CSC, decided September 20, 2023), which reversed the removal of the appellants, the Commission agreed with the ALJs that federal law did not preempt CREAMMA; that Mansour and Polanco could carry a service weapon without violating federal law; and that the facts of those matters demonstrated that the terminations violated CREAMMA. Therefore, the Commission, in its de novo review, again finds that federal law does not preempt CREAMMA,; and that the appellant could carry a service weapon without violating federal law. Accordingly, there is not a sufficient basis to modify the ALJ’s initial decision in that respect. Nonetheless, for reasons set forth below, the sustained charges warrant the appellant’s removal.

Similar to its review of the underlying charges, the Commission’s review of the penalty is de novo. In addition to considering the seriousness of the underlying incident in determining the proper penalty, the Commission utilizes, when appropriate, the concept of progressive discipline. West New York v. Bock, 38 N.J. 500 (1962). Further, 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 principle 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 uv. Bordentown, 191 N.J. 474 (2007). In this regard, the Commission notes that 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. As set forth by the ALJ, the Commission emphasizes that a law enforcement officer is held to a higher standard than a civilian public employee. A Police Officer holds a highly visible and sensitive position within the community, whose primary duty is to enforce and uphold the law. The position represents law and order to the citizenry. A Police Officer also carries a service revolver and is constantly called upon to exercise tact, restraint and good judgment in relationship with the public. Thus, a Police

Officer must present an image of personal integrity and dependability in order to have the respect of the public. 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). In the instant matter, the appellant’s taking of unregulated cannabis was clearly egregious enough to warrant removal. His actions were in direct contradiction of New Jersey Attorney General’s Law Enforcement Testing Policy and the appointing authority’s drug testing policy. The appellant’s actions clearly undermine the public trust. Accordingly, it is clear that removal is the appropriate penalty.

ORDER

The Civil Service Commission finds that the action of the appointing authority in removing the appellant was justified. The Commission therefore affirms that action and dismisses the appeal of Montavious Patten.

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