Rafael Roman, CSC Docket No. 2024-2229

BackgroundThe appeal of Rafael Roman, Animal Control Officer, Bergen County, Department of Health, removal, effective January 23, 2024, on charges, was heard by Administrative Law Judge Thomas R. Betancourt (ALJ), who rendered his initial decision on February 18, 2025. 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 March 19, 2025, adopted the ALJ’s Findings of Facts and Conclusions. However, it did not adopt his recommendation to modify the removal to a six-month suspension. Rather, the Commission upheld the removal.

Administrative Law JudgeIn this matter, the ALJ found that the appellant was guilty of the misconduct alleged and upheld the underlying charges of conduct unbecoming a public employee and other sufficient cause. In this regard, he properly dismissed the charges of incompetency, inefficiency or failure to perform duties, inability to perform duties, and neglect of duty as these charges were not appropriately proffered based on the misconduct. Upon its de novo review, the Commission agrees with the ALJ’s findings and finds nothing in the record to demonstrate that the ALJ’s findings regarding the charges were arbitrary, capricious or unreasonable.

AnalysisIn its exceptions, the appointing authority argues that removal is the proper penalty in this matter. The Commission agrees. In this regard, 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 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 this matter, in recommending that the removal be modified to a six-month suspension, the ALJ performed an analysis of the penalty to be imposed. In that regard, the ALJ stated:

Appellant has a fairly extensive prior disciplinary history, as set forth in R-3.1 None of his prior disciplinary matters rose to the level of major discipline. See N.J.A.C. 2A:2.2.

In the instant matter removal seems a rather draconian penalty.

The two instances of inappropriate touching surely amount to the level of major discipline. However, this type of behavior has not been the subject matter of any other discipline. A substantial suspension, short of termination seems more suitable to the acts herein.

Initially, the Commission notes that the appellant began his tenure with the appointing authority in September 2021. Thereafter, in less than two and one-half years prior to the current incident, he accrued five disciplinary actions. While none of these actions resulted in major discipline, it is clear that the appellant has a penchant for misconduct in his short tenure. Moreover, the misconduct in this case was wholly inappropriate and cannot be countenanced. Had the appellant been a more senior employee with a clean disciplinary history, the Commission could have supported the recommended reduction. However, such is not the case in thus matter. Thus, the Commission finds that the removal comports with the tenets of progressive discipline and based on the misconduct, is not shocking to the conscious.

1Exhibit R-3 indicates the appellant’s prior disciplinary history as follows: In 2023, he received two written reprimands and two, one working day suspensions, and in January 2024, he received a two working day suspension.

ORDER

The Civil Service Commission finds that the action of the appointing authority in removing the appellant was justified. The Commission therefore upholds that action and dismisses the appeal of Rafael Roman.

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