Mikael Diaz, CSC Docket No. 2024-167

BackgroundThe appeal of Mikael Diaz, Police Officer, Linden, Police Department1, 16 working day suspension, on charges, was heard by Administrative Law Judge Andrew M. Baron (ALJ), who rendered his initial decision on February 13, 2025. Exceptions were filed on behalf of both parties 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, de novo evaluation of the record, including a thorough review of the exceptions and reply, the Civil Service Commission (Commission), at its meeting on March 19, 2025, adopted the Findings of Fact and Conclusions and the ALJ’s recommendation to modify the 16 working day suspension to a four working day suspension.

Regarding the charges, the Commission finds that the ALJ’s findings and conclusions were appropriate and based on the credible evidence in the records, Accordingly, the Commission finds both parties’ exceptions challenging any of those findings unpersuasive.

Regarding the penalty, the appointing authority argues that the originally imposed 16 working day suspension is the appropriate penalty. In this regard, it argues that the other officer in the vehicle, who was not even driving, received and accepted a major discipline for his involvement. In his initial decision, the ALJ stated:

Administrative Law Judge1 The ALJ indicates that the appellant is “now a Lieutenant with the Essex County Department of Corrections.” Official personnel records indicate that the appellant is currently a Linden Police Officer.

I CONCLUDE that while in a perfect world, officer Diaz could have and should have handled himself in a different manner when he approached the local streets of Newark, there were mitigating circumstances including but not limited to the undisputed fact that none of the police officials in higher positions of authority ordered or directed

AnalysisDiaz to stop the pursuit.

Administrative Law JudgeAs a result, I CONCLUDE such that a sixteen-day suspension which constitutes a “major” penalty on his record was excessive under the circumstances, given certain factors at play here, which the City did not consider, the most important of which was the lack of an order from any of the supervisors or “higher ups” who were listening in throughout the entire pursuit.

AnalysisI THEREFORE CONCLUDE, that while some degree of penalty is appropriate for driving down a one-way street in the opposite direction at a high rate of speed in a local neighborhood, circumstances warrant that the original sixteen-day major penalty should be reduced to a four day “minor” penalty.

Similar to its review of the underlying 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.” 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).

In this regard, notwithstanding the appointing authority’s arguments to the contrary, the Commission finds the ALJ’s reasoning for reducing the penalty appropriate, especially given that several of the other originally proffered charges were not sustained and the Commission has found the appointing authority’s exceptions in that regard unavailing. Moreover, the fact that another officer involved in the incident received and accepted a major discipline is of no moment. That officer apparently did not challenge that action via appeal to the Commission, so it has no ability to determine whether that penalty was appropriate. Regardless, the Commission is charged with imposing the proper penalty on the appellant based on his actions. As indicated above, the Commission agrees with the ALJ in that regard and finds that the recommended four working day suspension is sufficient for the upheld misconduct. However, the Commission also notes its concerns with the appellant’s misconduct. In this regard, along with the imposed suspension, it orders that the appellant receive further training on the appropriate Attorney General Guidelines on vehicle pursuits.

Since the suspension has been modified, the appellant is entitled to 12 working days of back pay, benefits, and seniority pursuant to N.J.A.C. 4A:2-2.10. However, he is not entitled to counsel fees. N.J.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 some charges were dismissed, charges were upheld and was imposed. Consequently, as the appellant has failed to meet the standard set forth in 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 four working day suspension. The Commission further orders that the appellant be granted 12 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. Proof of income earned shall be submitted by or on behalf of the appellant to the appointing authority within 30 days of issuance of this decision. The Commission also orders that the appellant receive further training on the appropriate Attorney General Guidelines on vehicle pursuits.

Counsel fees are denied.

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