Sheri Janoski, CSC Docket No. 2024-170

BackgroundThe appeal of Sheri Janoski, Clerk 1, Green Township, removal, effective June 20, 2023, on charges, was heard by Administrative Law Judge Kelly J. Kirk (ALJ), who rendered her initial decision on February 22, 2024. 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 March 20, 2024, adopted the ALJ’s Findings of Facts as contained in the attached initial decision but did not adopt the ALJ’s recommendation to uphold the removal. Rather, the Commission modified the penalty to a five-month suspension.

Upon its review of the record, the Commission agrees with the ALJ regarding the charges. Thus, the only issue in this matter is the proper penalty to be imposed. In determining the proper penalty, the Commission’s review 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 assessing the penalty in relation to the employee’s conduct, it is important to emphasize that the nature of the offense must be balanced against mitigating circumstances, including any prior disciplinary history. 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).

In the instant matter, the record reveals that the appellant has no major discipline. Her conduct, while very serious in nature, does not overcome progressive discipline principles. The Commission emphasizes that it does not condone the appellant’s misconduct. However, given the totality of the circumstances, the Commission finds that removal is disproportionate to the offense. The Commission is satisfied that a major discipline of a five-month suspension will impress upon the appellant that her conduct was improper and serve as a warning that future offenses may result in a higher penalty, up to and including removal. Accordingly, the foregoing circumstances provide a sufficient basis to modify the removal imposed by the appointing authority to a five-month suspension. See N.J.S.A. 11A:2-19 and N.J.A.C. 4A:2-2.9(d).

Since the removal has been modified, the appellant is entitled to be reinstated with mitigated back pay, benefits, and seniority pursuant to N.J.A.C. 4A:2-2.10 from five months after the first date of separation without pay until the date of actual reinstatement.1

This decision resolves the merits of the dispute between the parties concerning the disciplinary charges and the penalty imposed by the appointing authority. However, in light of 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. In the interim, as the court states in Phillips, supra, if it has not already done so, upon receipt of this decision, the appointing authority shall immediately reinstate the appellant to his permanent position.

ORDER

The Civil Service Commission finds that the action of the appointing authority in removing Sheri Janoski was not justified. The Commission therefore modifies that action to a five-month suspension.

The Commission orders that the appellant be granted back pay, benefits, and seniority from five months after the first date of separation without pay to the actual date of reinstatement. The amount of back pay awarded is to be reduced and mitigated as provided for in N.J.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. Pursuant to N.J.A.C. 4A:2-2.10, the parties shall make a good faith effort to resolve any dispute as to the amount of back pay. However, under no circumstances should the appellant’s reinstatement be delayed pending resolution of any potential back pay dispute.

1 The appellant filed her appeal pro se, and thus, there is no consideration for an award of counsel fees.

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.