Michael Bell, CSC Docket No. 2024-1091

BackgroundThe appeal of Michael Bell, Fire Lieutenant, Plainfield, Fire Department, 45 working day suspension, on charges, was heard by Administrative Law Judge Daniel J. Brown (ALJ), who rendered his initial decision on October 7, 2024. Exceptions were filed on behalf of the appointing authority and a reply was filed on behalf of the appellant.

AnalysisHaving considered the record and the ALJ’s initial decision, and having made an independent, de nove evaluation of the record, including a thorough review of the exceptions and reply, the Civil Service Commission (Commission), at its meeting on November 6, 2024, adopted the Findings of Fact and Conclusions of Law as contained in the initial decision. However, it did not agree with his recommendation to modify the 45 working day suspension to a one working day suspension. Rather, the Commission modified the 45 working day suspension to a seven working day suspension.

Administrative Law JudgeIn his initial decision, in recommending reducing the 45 working day suspension to a one working day suspension, the ALJ stated:

[A]ppellant should receive a lesser penalty under progressive discipline.

AnalysisAppellant had no sustained discipline until this case. Additionally,

Deputy Chief Reed described appellant as a good firefighter who performed all his assigned tasks once he finished setting up his cell phone to record the fire .. . the time that setting up his cell phone delayed appellant for completing his assigned duties was minimal.

Finally, in determining the appropriate discipline, I note that another firefighter with the same rank and disciplinary history as appellant received a one-day suspension for failing to evacuate a structure when he was ordered to do so. For those reasons, 1 CONCLUDE that a one- day suspension strikes a balance between appellant’s misconduct, respondents need to ensure compliance with its policies, and the public interest.

In its exceptions, the appointing authority argues that the ALJ erred in modifying the 45 working day suspension, as that penalty was more than reasonable. In particular, the appointing authority argues that the appellant’s misconduct involved public safety and posed a risk of harm to persons or property, and therefore, it was not bound by the tenets of progressive discipline. The appointing authority also argues that the ALJ’s decision to modify to a one working day suspension was so “disproportionate to the offense, in ight of the circumstances, as to be shocking to one’s sense of fairness.” Finally with regard to the differing levels of discipline imposed on other members of the fire department during the same incident, the appointing authority notes that the appellant’s misconduct, unlike the other fire fighters, did not occur within the scope of his duties, and thus, it was appropriate that it be afforded the ultimate discretion in instituting discipline in accordance with differing levels of misconduct.

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). Itis settled that the theory 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 v. Bordentown, 191 N.J. 474 (2007). In this matter, although serious, the ALJ found the appellant’s actions were not significantly more egregious than the other Fire Lieutenant, who the ALJ noted only received a one-day suspension for failing to evacuate a building during the same fire incident. That, combined with the appellant having no disciplinary history, led the ALJ to find any delay in starting his duties was de minimus, and that the appellant performed all of his assigned duties, warranting a lesser penalty then a 45 working day suspension. While the Commission agrees the misconduct is unworthy of the originally imposed suspension, it does not agree that a one-day suspension is sufficient in this matter. Clearly, any delay in performing duties that could jeopardize public safety is considered serious. Moreover, the facts and circumstances behind the discipline imposed on the other employee is not before the Commission. As such, the Commission finds that a seven working day suspension is more appropriate and will impress upon the appellant the inappropriate nature of his actions and that any similar future misconduct may lead to increasingly more severe disciplinary penalties.

Since the suspension has been modified, the appellant is entitled to 38 working days of back pay, benefits, and seniority pursuant to N.dJ.A.C. 4A:2-2.10. However, he is not entitled to counsel fees. N.dJ.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 1n 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): Jn 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 penalty was modified by the Commission, 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.

This decision resolves the merits of the dispute between the parties concerning the disciplinary charges and the penalty imposed by the appointing authority. However, per the Appellate Division’s decision, Dolores Phillips v. Department of Corrections, Docket No. A-5581-01T2F (App. Div. Feb. 26, 2003), the Commission’s decision will not become final until any outstanding issues concerning back pay are finally resolved.

ORDER

The Civil Service Commission finds that the action of the appointing authority in suspending the appellant was justified. However, it modifies the 45 working day suspension to a seven working day suspension. The Commission further orders that the appellant be granted 38 working days of back pay, benefits, and seniority. Proof of income earned and an affidavit of mitigation 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.

The parties must inform the Commission, in writing, if there is any dispute as to back pay within 60 days of issuance of this decision. In the absence of such notice, the Commission will assume that all outstanding issues have been amicably resolved by the parties and this decision shall become a final administrative determination pursuant to R. 2:2-3(a)(2). After such time, any further review of this matter shall be pursued in the Superior Court of New Jersey, Appellate Division.