Daniel Costello, CSC Docket No. 2024-1335

BackgroundThe appeal of Daniel Costello, Jr., County Correctional Police Officer, Bergen County, Sheriffs Office, 60 working day suspension, on charges, was before by Administrative Law Judge Susana E. Guerrero (ALJ), who rendered her initial decision on June 27, 2025. No exceptions were filed.

AnalysisHaving considered the record and the ALJ’s initial decision, and having made an independent evaluation of the record, the Civil Service Commission (Commission), at its meeting on August 13, 2025, adopted the ALJ's findings of facts and conclusions. However, it did not adopt her recommendation to modify the 60 working day suspension to a 10 working day suspension. Rather, the Commission imposed a five working day suspension.

Administrative Law JudgeRegarding the penalty, in her initial decision, the ALJ found:

I am persuaded that while there are some sustained violations that warrant discipline, the proposed penalty of a sixty-day suspension is excessive. Several charges here have not been sustained and those that have been sustained are not sufficiently egregious to warrant this level of discipline.

AnalysisIn determining the appropriate level of discipline, I take into account the fact that these events occurred during one shift only nearly eight years ago when Costello was still relatively new to the jail. Since that time, he has had no discipline and he has been promoted to the rank of sergeant. The County trusts Costello’s abilities enough not only to promote him, but to assign him to supervise and oversee the same unit,

S-1, which is one of the toughest at the jail since it houses high-security inmates. Also, when the County issued the charges and imposed a sixty- day suspension, it never removed him from that assignment nor did he have to serve that suspension, which is unusual.

Although Costello did not comply with an SOP when he allowed two worker inmates out of their cells for more than four hours, and acted contrary to an Operational Directive when he gave them his leftovers, he testified credibly that this was customary in the jail at the time and there is no evidence that Costello did so for any inappropriate or questionable purpose.

Regarding Costello’s failure disable the TCS when he left the station unattended on two occasions (once for only two minutes), he also testified credibly that Lower Control also monitors and controls the TCS at S-1, and that an inmate gaining access to the TCS in S-1 is not as easily achieved as Martorano made it appear in her testimony. While he did neglect his duty to disable the TCS every time he walked away from the station that evening, and that he should receive discipline for this, I am not convinced that his failure created a material safety risk.

Finally, it is undisputed that Costello failed to complete one and one-half post inspections, which are conducted every half hour, and one cell search. Costello did, however, perform most of the required post inspections that day. While Costello noted in the logbook that these post inspections were conducted, when they were not, I could not determine, based on the evidence presented, that Costello intentionally falsified the logbook as the County suggests. While I recognize the importance of maintaining accurate records, particularly in law enforcement, there is simply insufficient evidence here to determine that Costello’s inaccurate documentation was intentional and not simply an oversight or error on his part.

Administrative Law JudgeGiven these considerations, and the fact that Costello had one minor prior discipline, resulting in a five-day suspension, I CONCLUDE that progressive discipline is appropriate, and that a sixty-day suspension is excessive. I CONCLUDE that a more appropriate penalty here is a ten-day suspension.

AnalysisRegarding the penalty, 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 Nid. 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.d. 474 (2007). Moreover, the Commission emphasizes that a Police 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).

The Commission is persuaded that the mitigating factors listed by the ALJ support a slightly further reduction in penalty. In this regard, given all of the circumstances, the Commission finds that a more appropriate penalty is a five working day suspension, which is considered minor discipline under Civil Service law and rules, rather than the 10 working day suspension recommended by the ALJ, which is considered major discipline.

Since the suspension has been modified, the appellant is entitled to 55 working days of back pay, benefits, and seniority pursuant to N../.A.C. 4A:2-2.10. However, he is not entitled to counsel fees. N.ef.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 the case at hand, although the penalty was modified by the Commission, charges were sustained, and 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

The Civil Service Commission finds that the action of the appointing authority in suspending the appellant was justified. However, it modifies the suspension to a five working day suspension. The Commission further orders that the appellant be granted 55 working days of back pay, benefits, and seniority. The amount of back pay awarded is to be reduced and mitigated as provided for in N.dJ.A.C. 4A:2-2.10. 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.

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.

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.