N.B., CSC Docket No. 2024-1324

BackgroundThe appeal of N.B., a Municipal Recycling Coordinator! with the Township of Lakewood, Department of Public Works, of his removal, effective November 28, 2023, on charges, was before Administrative Law Judge Jeffrey N. Rabin (ALJ), who rendered his initial decision on February 25, 2026. 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 attached ALJ’s initial decision, including a thorough review of the exceptions and reply, and having made an independent evaluation of the record, the Civil Service Commission (Commission), at its meeting of April 8, 2026, accepted and adopted the Findings of Fact and Conclusions of Law as contained in the AlJ’s initial decision and his recommendation to uphold the removal.

The Commission makes the following comments. As indicated above, the Commission thoroughly reviewed the exceptions filed by the appointing authority in this matter. The Commission finds the exceptions unpersuasive as the ALJ’s findings and conclusions in upholding the removal were based on his thorough assessment of the record and are not arbitrary, capricious, unreasonable or legally incorrect.

1 The appellant was permanent as a Truck Driver Heavy and was serving provisionally pending promotional examination procedures as a Municipal Recycling Coordinator at the time of his removal. 2 The Final Notice of Disciplinary Action was issued on November 28, 2023 “immediately” removing the appellant. The appellant had been immediately suspended and was separated effective July 14, 2023.

Additionally, the Commission rejects the appellant’s argument that the ALJ should have disqualified himself based on actual or perceived bias. Initially, the Commission notes that the appellant’s claims are untimely and, technically, not properly before it. In this regard, any request by a party for an ALJ’s disqualification must be made initially to the ALJ pursuant to N.J.A.C. 1:1-14.12(d). Further, if such a motion is made and a party wishes to further challenge its disposition, the party must then request interlocutory review of that determination pursuant to N.J.A.C. 1:1-14.10(), (k), and (1). Those rules indicate that for issues of ALJ disqualification, any further interlocutory challenge must be filed with the Director of the Office of Administrative Law. Moreover, those rules indicate that such challenges can only be made interlocutory, and not to the agency head after the issuance of an initial decision. Accordingly, the matter of the ALJ’s disqualification is not properly before the Commission. Nonetheless, as noted, the Commission has rejected the appellant’s argument in that regard. See In the Matter of Carlos Pina (CSC, decided June 11, 2025).

Administrative Law JudgeAs to the charges, the ALJ’s findings that the appellant did not challenge his two previous failed alcohol tests and present a sufficient challenge to the reliability of the machine utilized in alcohol testing; he drove commercial vehicles pursuant to his commercial driver’s license (CDL); he was in a safety-sensitive position; and he supervised employees in such positions all stemmed on the ALdJ’s assessment of the credibility of the witnesses. In this regard, the Commission acknowledges that the ALJ, who has the benefit of earing and seeing the witnesses, is generally in a better position to determine the credibility and veracity of the witnesses. See Maiter 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. 468, 474 (1999)). Additionally, such credibility findings need not be explicitly enunciated if the record as a whole makes the findings clear. Jd. 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).

AnalysisIn this matter, the exceptions filed by the appointing authority are not persuasive in demonstrating that the ALJ’s credibility determinations, or his findings and conclusions based on those determinations, were arbitrary, capricious or unreasonable. In this regard, the ALJ concluded that the appellant offered much contradictory testimony. For example, the appellant first indicated that he accepted the second failed alcohol test and the 60-day suspension because someone threatened his health insurance and later testified that he accepted it because he feared losing his job. However, the ALJ addressed this by stating:

Administrative Law JudgeAppellant has offered no legal arguments, statutes or caselaw which would permit reopening previous charges and disciplinary actions, and appellant’s testimony regarding being coerced into accepting suspensions without appeal was found not to be credible as it was based on hearsay, unsupported by any residuum of corroborating evidence. As such, I CONCLUDE that appellant voluntarily waived his rights of appeal on the first two failed alcohol tests and that the time period for appealing those earlier failed tests has passed.

AnalysisAdditionally, the appellant gave contradictory testimony regarding his alcoholism and about whether he was terminated while on Family and Medical Leave Act (FMLA) leave. Furthermore, the ALJ indicated that:

Appellant’s case is based on challenging the failed Third Alcohol Test, but appellant failed to reconcile his claim that he was not drunk at six o'clock in the morning with his admission of having consumed eight alcoholic beverages the evening before. No other testimony was provided on behalf of appellant to confirm the number of drinks he had consumed prior to the 6 a.m. Third Alcohol Test or over what period of time he had consumed them. No expert or medical testimony was proffered to explain appellant’s weight and alcohol absorption rate and other possible physical traits of [the appellant] in light of his admission that he consumed eight alcoholic beverages in the course of five hours.

I found appellant’s testimony to be self-serving, rehearsed, unsupported by other evidence, and ultimately lacking credibility.

Administrative Law JudgeHowever, the ALJ found the testimony of the appointing authorify’s witnesses credible. In addition, while the appellant claims that the ALJ failed to address his FMLA/disability claims as there was no “interactive process,” the ALJ found that the appointing authority engaged in an “interactive process,” notwithstanding that it did not know the appellant had a disability of alcoholism and the appellant never sought help or advised that he had the disability as the appointing authority sent the appellant for alcohol rehabilitation treatment on all three occasions when he failed the alcohol test regardless.

AnalysisMoreover, the appellant contends that his actions did not warrant a penalty of removal given that it was based on a medical issue. 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 v. Bordentown, 191 N..J. 474 (2007). In the instant matter, the appellant failed three separate alcohol tests, including testing above both the federal and collectively negotiated limits. The record evidenced that the appellant drove commercial vehicles pursuant to his CDL, was in a safety- sensitive position, and supervised employees in such safety-sensitive positions. Furthermore, the tenets of progressive discipline were followed in this matter. The appellant had received a 30-day suspension and a 60-day suspension for his prior alcohol violations. Notwithstanding the appellant’s claims that he is being punished for having a disease, the appointing authority cannot have its employees driving Township owned vehicles, which include large trucks, while intoxicated. 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 N.B.

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