JIMMY MERCADO, CSC Docket No. 2024-1124

BackgroundThe appeal of Jimmy Mercado, Police Officer, Pennsauken, Police Department, removal, effective June 13, 2023, on charges, was heard by Administrative Law Judge William T. Cooper, ITI (ALJ), who rendered his initial decision on November 15, 2024. Exceptions were filed on behalf of the appellant and a reply 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 18, 2024 adopted the ALJ’s Findings of Facts and Conclusions of Law and his recommendation to uphold the removal.

The Commission makes the following comments. As indicated above, the Commission has thoroughly reviewed the exceptions filed in this matter and finds them unpersuasive. The main contention in the exceptions was that the appointing authority did not sustain its burden of proof, especially regarding the untruthfulness charge, and otherwise, the ALJ’s credibility determination were in error. The Commission rejects these contentions.

Administrative Law JudgeRegarding credibility, in his initial decision, the ALJ stated:

Here, the statements of Officers Coffey, Perez, Pacana, and Cruz are consistent in that each of the officers admitted that a number of officers had been hanging out at the FOP hall watching the NFL draft instead of attending to their duties. This fact is corroborated by: GPS records that confirm the vehicles assigned to officers were stationary for long periods of time in the vicinity of the FOP hall; the missing patrol logs for the officers of the overnight shift; the fact that the BWC for those same officers were not utilized on calls; and the fact that calls requesting police assistance went unanswered.

AnalysisThe appellant admitted in his interview that he did not answer either the disturbance call or the burglar alarm call because he was disregarded by Officer Cruz and he was not feeling well and “was in and out of the bathroom.” However, Officer Cruz admitted that he did not respond to the disturbance complaint as directed to do so by dispatch and further admitted that he did not disregard the appellant from this call as they were both present at the FOP hall.

The appellant’s explanation that he was “not feeling well” and was “in and out of the bathroom” is not credible. If the appellant was so ill that he was required to remain at the FOP hall for approximately five hours, then he was required to notify his supervisor that he was too ill to respond to calls. He did not do this. Further, his claims that he was disregarded by Officer Cruz ring false in light of Officer Cruz’s statement that he did not disregard the appellant and that both of them remained at the FOP hall instead of responding to either the disturbance call or the burglar alarm call. Also, instead of following proper communication practice, the appellant failed to notify dispatch that he had been disregarded on either of the calls and was available in case he was needed for other service calls. Lastly, when compelled to recreate his missing patrol log, the appellant failed to note that he remained at the FOP hall for approximately five hours. Instead, in an effort to cover up his loafing at the FOP hall, the appellant fabricated activity to make it seem as if he was active while on duty.

I cannot accept the appellant’s explanation as to his failure to respond to calls as credible.

The Commission agrees with the ALJ’s determinations which were substantially based on his above assessment of the credibility of the testimony of the witnesses and the evidence in the record. In this regard, the Commission acknowledges that the ALJ, who has the benefit of hearing and seeing the witnesses, is generally in a better position to determine the credibility and veracity of the witnesses. See Matter of J.W.D., 149 N.J. 108 (1997). “[T]rial courts’ credibility findings ... are often influenced by matters such as observations of the character and demeanor of the witnesses and common human experience that are not transmitted by the record.” See also, In re Taylor, 158 N.J. 644 (1999) (quoting State v. Locurto, 157 N.J. 463, 474 (1999)). Additionally, such credibility findings need not be explicitly enunciated if the record as a whole makes the findings clear. Id. at 659 (citing Locurto, supra). The Commission appropriately gives due deference to such determinations. However, in its de novo review of the record, the Commission has the authority to reverse or modify an ALJ’s decision if it is not supported by sufficient credible evidence or was otherwise arbitrary. See N.J.S.A. 52:14B-10(c); Cavalieri u. Public Employees Retirement System, 368 N.J. Super. 527 (App. Div. 2004). The Commission finds no persuasive evidence in the appellant's exceptions or the record to demonstrate that the ALJ’s credibility determinations, or his findings and conclusions based on those determinations, were arbitrary, capricious or unreasonable. Accordingly, the Commission adopts the findings and conclusions made therefrom.

The appellant also argues that the penalty of removal is too harsh. The Commission disagrees. Similar to its assessment of the charges, 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). It is 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). 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. 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 N.J. Super. 560 (App. Div. 1965), cert. denied, 47 N.J. 80 (1966). See also, In re Phillips, 117 N.J. 567 (1990).

Administrative Law JudgeIn his initial decision, the ALJ found:

The testimony reflects that appellant does not have a lengthy disciplinary record; however, his failure to answer calls that he was dispatched to on April 28, 2022, is a serious offense, and the penalty should reflect the same. Further, the appellant failed to admit to his failure to answer the calls he was dispatched to, and that he was at the

AnalysisFOP hall for approximately five hours. Instead of admitting to loafing, the appellant attempted to cover up the time he spent at the FOP hall with a fabricated patrol log.

Administrative Law JudgeAccordingly, I CONCLUDE that the sustained charges are sufficiently egregious to warrant the termination of appellant from his position as a police officer.

AnalysisIn this matter, the Commission agrees with the ALJ that the appellant’s infractions are egregious and finds that they are inimical to what the public expects from a law enforcement officer, who is held to a higher standard. Moreover, in this matter, not only did the appellant ignore his duties, of significant concern is that he compounded this dereliction of duty by fabricating an excuse, in an attempt to hide such dereliction. This lack of veracity is significantly problematic and cannot be countenanced in any public employee and especially not a law enforcement employee. As such, a penalty less than removal would serve to undermine the public trust. Accordingly, the Commission finds the penalty of removal neither disproportionate to the offense nor shocking to the conscious.

ORDER

The Civil Service Commission finds that the action of the appointing authority in removing the appellant was justified. The Commission therefore upholds that action and dismisses the appeal of Jimmy Mercado.

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