Matthew Radecky, CSC Docket No. 2024-1788, 2024-2104

BackgroundThe appeals of Matthew Radecky, Police Sergeant, Pohatcong, Police Department, demotion, effective December 28, 20238, and removal, effective May 2, 2024, on charges, were heard by Administrative Law Judge Patrice E. Hobbs (ALJ), who rendered her initial decision on December 31, 2024. Exceptions were filed on behalf of the appointing authority and a reply to exceptions was filed on behalf of the appellant.

AnalysisHaving considered the record and the ALJ’s initial decision, and having made an independent evaluation of the record, including a thorough review of the exceptions and reply, the Civil Service Commission (Commission), at its meeting on February 5, 2025, adopted the ALJ’s Findings of Facts and Conclusions and her recommendation to reverse the demotion and removal.

Demotion

Administrative Law JudgeIn her initial decision, the ALJ recommended reversing the appellant’s demotion from Police Sergeant to Police Officer. In that regard, the ALJ found:

In September 2023, Radecky was being reinstated to his position after more than two years away from the job. The CSC only ordered a fitness-for-duty evaluation. Robb, as chief of police, is responsible for the safety of the department and the people of Pohatcong. As such, Robb has the authority to issue any additional orders to ensure all officers are current on their training. Robb notified Radecky of these additional orders and told him in the meeting that he could appeal the orders to the PBA. Instead of signing the orders, Radecky insisted that he wanted to consult with his attorney. Radecky took the orders and left the office.

AnalysisRobb did not insist that the orders be signed at that moment. Instead,

Robb told Radecky to return the signed orders before September 1, 2023, at 7:00 p.m. Radecky returned the signed orders by email on September

Administrative Law Judge1, 2023, at 6:56 p.m. Even though he wrote on the orders that he signed them under protest, he did sign and return the orders to Robb prior to the deadline, and Robb accepted them. Radecky reported for duty a few days later. There was no further mention of a refusal to sign the orders until Radecky was contacted by Barsony. I CONCLUDE that Radecky did not refuse to obey any lawful order from Robb because Radecky returned the signed orders prior to the deadline.

AnalysisIn its exceptions, the appointing authority argues that the ALJ erred in finding the Police Chief's testimony regarding the meeting did not include an explicit order to sign at that time. In this regard, if the Police Chief issued a direct order to sign the documents at that meeting, as proposed by the appointing authority in its exceptions,! and the appellant refused, the fact that he signed the orders at a later allowed time would not necessarily absolve him of failing to follow a direct order. However, the Commission rejects the appointing authority’s contentions.

In this regard, the Commission acknowledges that the ALJ, who has the benefit of hearing and seeing the witnesses, is generally in a better position to determine the credibility and veracity of the witnesses. See Matter 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. 463, 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). In its review, the Commission finds no persuasive evidence in the appellant’s exceptions or the record to demonstrate that the ALJ’s credibility determinations, or her findings and conclusions based on those determinations, were arbitrary, capricious or unreasonable. As such, the Commission finds those determinations worthy of due deference and the Commission adopts the findings and conclusions made therefrom.

Since the demotion has been reversed, the appellant is entitled to unmitigated differential back pay, benefits, and seniority pursuant to N.J.A.C. 4A:2-2.10 from the

! The appointing authority points to specific points in the testimony where it believes the Police Chief gave such a direct order.

first date of the demotion until the date of his removal.

Removal

Regarding the removal, the record shows that the specifications underlying the charges were that the appellant arrived a meeting with the Police Chief five minutes late and was insubordinate during that meeting. In her initial decision, the ALJ found:

Pohatcong is charging Radecky with tardiness. It is undisputed that Radecky arrived five minutes late to a meeting with Robb, but Radecky was not reporting for duty. He was reporting for a disciplinary meeting with Robb. Robb was not scheduled to work. Robb, Radecky, and Vernon were all meeting at the station for the sole purpose of imposing discipline. Radecky also stated that he had asked Vernon to inform Robb that the meeting would be late because Vernon was running late. Even after asking Vernon to relay that message to Robb, Radecky went into the building five minutes late. The meeting convened without any mention of tardiness. Barsony did not interview Vernon to confirm or refute any of the events of December 28, 2023, as to the time the meeting convened or the content of any of the phone calls.

Administrative Law JudgeTherefore, I CONCLUDE that the Pohatcong has not met its burden to support a charge of N.J.A.C. 4A:2-2.3(a)(12), Other sufficient cause, absent without leave/tardiness, under Final Notice for Demotion [sic] because it was not an official assignment, it was a disciplinary matter. Neither Robb nor Radecky were scheduled to work before or after the meeting, and this charge must be dismissed.

AnalysisPohatcong is also charging Radecky with insubordination because he raised his voice and used his hands in a disrespectful manner to the chief of police. The only witnesses who testified to the hand gestures were Radecky and Robb. Radecky could not recall whether he made any hand gestures. Robb demonstrated the hand gesture as a shoving motion. Robb was behind his desk, and Radecky was sitting in a chair near the door. Robb and Radecky were several feet apart. The hand gesture was not directly in Robb’s personal space or even close to it. McGuinness testified that Radecky spoke in a loud tone and that he could not really hear Vernon or Robb. Robb testified that Radecky was loud and the words in and of themselves were disrespectful. Radecky testified that he was not being disrespectful to Robb; he was frustrated with the discipline charges and did not think his voice was loud. Vernon was not interviewed. While Radecky’s actions could be seen as somewhat disrespectful, it does not rise to the level of insubordination. Radecky did not fail to obey a lawful order. He may have been loud and gestured with his hands, but there were no orders given that Radecky refused to obey.

While the Commission cannot agree with the ALJ’s reasoning that the appellant’s tardiness should be dismissed as the meeting was not an “official” assignment, 1 nevertheless agrees that those charges should be dismissed. The institution of discipline on this basis appears to be the epitome of form over substance, as the Commission questions an attempt to sanction an employee for lateness, where that lateness is a mere five minutes, and the record indicates that reasons were proffered for that lateness. This is especially true where the sanction is removal from employment. Even if worthy of any sanction, it would appear a warning or counseling on timeliness would have been most appropriate, neither of which is considered disciplinary action under Civil Service law and rules. Moreover, the Commission agrees that while the appellant may have been somewhat disrespectful, it cannot ascribe misconduct to those actions, especially given the circumstances. As such, the Commission agrees that the removal should be reversed.

Since the removal has been reversed, the appellant is entitled to be reinstated with mitigated back pay, 2 benefits, and seniority pursuant to N.J.A.C. 4A:2-2.10 from the first date of separation without pay until the date of actual reinstatement. Moreover, as he has prevailed on all issues in both matters, he is also entitled to reasonable counsel fees pursuant to N.J.A.C. 4A:2-2.12.

This decision resolves the merits of the dispute between the parties concerning the disciplinary charges and the demotion and removal imposed by the appointing authority. However, per the Appellate Division’s decision, Dolores Phillips v. Depariment 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 or counsel fees 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 actions of the appointing authority in demoting and removing the appellant were not justified. The Commission therefore reverses those actions and grants the appeals of Matthew Radecky.

The Commission further orders that for the demotion, the appellant is entitled to unmitigated differential back pay, benefits, and seniority pursuant to N.J.A.C. 4A:2-2.10 from the first date of the demotion until the date of his removal and for the removal he shall be granted back pay, benefits, and seniority from the first date of separation without pay to the actual date of reinstatement. The amount of back pay awarded for the removal is to be reduced and mitigated as provided for in N.d.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.

2 Since the demotion was reversed, this pay should be at the appropriate Police Sergeant rate.

The Commission also awards counsel fees to the appellant’s attorney pursuant to N.Jj.A.C. 4A:2-2,12, An affidavit of services 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.eJ.A.C, 4A:2-2.10 and N.J.A.C. 4A:2-2.12, the parties shall make a good faith effort to resolve any dispute as to the amount of back pay or counsel fees. However, under no circumstances should the appellant’s reinstatement be delayed pending resolution of any potential back pay or counsel fees dispute.

The parties must inform the Commission, in writing, if there is any dispute as to back pay or 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.