Jose Dopazo, CSC Docket No. 2024-149

BackgroundThe appeal of Jose Dopazo, Police Sergeant, Newark, Department of Public Safety, 15 working day suspension, on charges, was before by Administrative Law Judge Kimberly A. Moss (ALJ), who rendered her initial summary decision on January 15, 2025. No exceptions were filed.

AnalysisHaving considered the record and the ALJ’s initial decision, and having made an independent, de novo evaluation of the record, the Civil Service Commission (Commission), at its meeting on February 26, 2025, adopted the ALJ’s recommendation to grant the appellant’s motion for summary decision and reverse the 15 working day suspension.

Administrative Law JudgeIn her initial decision, the ALJ dismissed the charges finding that the appointing authority violated the “45-day rule” found in N.J.S.A. 40A:14-147. In this regard, the ALJ found:

AnalysisIn this matter the investigation by NPD continued along with the

ECPO investigation except that NPD could not interview appellant until

ECPO completed its investigation. ECPO declined to charge appellant and sent a declination letter to NPD on August 19, 2022. On August 19,

2022, the forty-five-day period began. NPD was notified that ECPO would not be perusing charges against Dopazo. All the investigation had been done in this matter except the interview of Dopazo, when NPD received the declination letter. Santiago had interviewed Officer Samuel

Administrative Law JudgeJoseph, the citizen complainant and reviewed her medical records, the continuation and stop and incident reports as well as the body cam and car cam footage before August 19, 2022. There is no explanation by respondent why there was no action on this matter until Curtis was reassigned this matter on February 1, 2023, over five months after NPD knew that criminal charges would not be filed against Dopazo. Further, there has been no explanation provided as to why there was an extensive delay in completing the investigation. I CONCLUDE that the charges of Dopazo violating NPD Rules and Regulations are dismissed for violation of the forty-five-day rule.

AnalysisBased on the facts in the record as presented above, the Commission agrees. In this regard, while an appointing authority is permitted to conduct an investigation after a criminal investigation into the matter has concluded, it cannot prejudicially delay such investigation. See e.g., In the Matter of Telina Hairston, Docket No. A-3758-17T4 (App. Div., March 26, 2019). Here, the unexplained lengthy delay described above serves as sufficient basis to find that charges were not timely filed under the 45-day rule.

Moreover, notwithstanding that the appellant was also charged with violations of Title 4A, which are not subject to the 45-day rule, the ALJ’s dismissal of those charges was appropriate. In this regard, it is settled that the 45 day time limitation contained in N.J.S.A. 40A:14-147 only expressly applies to charges related to violations of departmental rules and regulations. See e.g., Hendricks v. Venettone, Docket No. A-1245-91T5 (App. Div. October 29, 1992); In the Matter of Bruce McGarvey v. Township of Moorestown, Docket No. A-684-98T1 (App. Div. June 22, 2000). See e.g., McElwee V. Borough of Fieldsboro, 400 N.J. Super. 388 (App. Div. 2008). However, on this issue, the ALJ found:

The City of Newark and the SOA have a settlement agreement which states in part:

“For purposes of administering the disciplinary process, where the City cites the New Jersey Administrative Code when charging an employee with a disciplinary infraction, the City agrees to continue to abide by the 45-day statute of limitations.”

The settlement agreement provides for the forty-five-day rule to apply to violations of the New Jersey Administrative Code. In this matter NPD violated the forty-five-day statute of limitations as outlined above.

Administrative Law JudgeI CONCLUDE the charge of conduct unbecoming under N.J.A.C.

Analysis4A:2-2.3(a)6 should be dismissed in accordance with the settlement agreement.

The Commission agrees with the ALJ. Where, as here, the record shows that the parties have contractually agreed to extend the statutory provisions of N.J.S.A. 40A:14-147 to apply to charges under Title 4A, it has reason to apply such agreement.

Since the suspension has been reversed, the appellant is entitled to 15 working days of back pay, benefits, and seniority pursuant to N.J.A.C. 4A:2-2,10. Moreover, the appellant is entitled to reasonable counsel fees pursuant to N.d.A.C. 4A:2-2.12.

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 counsel fees are finally resolved.

ORDER

The Civil Service Commission finds that the action of the appointing authority in suspending the appellant was not justified and reverses that action. The Commission further orders that the appellant be granted 15 working days of back pay, benefits, and seniority. The amount of back pay awarded is to be reduced as provided for in N.J.A.C. 4A:2-2,10(d)3. The Commission also orders reasonable counsel fees pursuant to N.J.A.C, 4A:2-2.12(a). Proof of income earned, and an affidavit in support of reasonable counsel fees shall be submitted by or on behalf of the appellant to the appointing authority within 30 days of issuance of this decision.

Pursuant to N.J.A.C. 4A:2-2,12(b), the parties shall make a good faith effort to resolve any dispute as to the amount of counsel fees.

The parties must inform the Commission, in writing, if there is any dispute as to counsel fees 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.