Joseph Rusk, CSC Docket No. 2024-2293

BackgroundThe appeal of Joseph Rusk, III, Police Officer, Lakewood, Police Department, removal, effective March 7, 2024, on charges, was heard by Administrative Law Judge Jacob S. Gertsman (ALJ), who rendered his initial decision on October 28, 2024. Exceptions were filed on behalf of the appellant.

AnalysisHaving considered the record and the ALdJ’s initial decision, and having made an independent evaluation of the record, including a thorough review of the exceptions, the Civil Service Commission (Commission), at its meeting on November 27, 2024, adopted the Findings of Fact and Conclusion as found in the initial decision and the recommendation to uphold the removal.

While the appellant argues in his exceptions that the appointing authority did not sustain its burden of proof regarding the charges, the ALJ’s detailed decision enumerates the credible evidence in the record establishing those charges. The Commission, in its de novo, review, finds nothing in the record or the appellant’s exceptions to discredit those findings.

The appellant also argues that removal is too harsh a penalty and does not comport with the tenets of progressive discipline. The Commission rejects this assertion. 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). Even when a law enforcement officer does not possess a prior disciplinary record after many unblemished years of employment, the seriousness of an offense may nevertheless warrant the penalty of removal where it is likely to undermine the public trust. In this regard, the Commission emphasizes that a law enforcement 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.dJ. 567 (1990).

Administrative Law JudgeIn his initial decision, the ALJ stated:

AnalysisAppellant argues that “although violations of the rules and regulations were proven, the penalty imposed is excessive and should be reduced. Here, the only prior discipline in Patrolman Rusk’s career was the thirty (80) day suspension from ‘off-duty’ road work. In fact, the discipline he has received all centers around ‘off-duty’ work and not his doing work as an on-duty officer. As such, the facts of this case, coupled with the specific violations, and the history of employment of Patrolman Rusk does not warrant that he be removed from employment based upon his conduct.” (Appellant Post Hearing Brief at 3)

The record demonstrates that Rusk failed to follow the LTPD’s extra-duty policy @J-3) when he failed to obtain required express permission to not return to the job site following the return of his patrol vehicle for service at the LTPD station. Further, he submitted documentation to be paid for a full day’s work when he, unlike the other officers who were dismissed when the job was completed, only worked for approximately one hour and never returned to the job site. While appellant is correct that during his career, he has only received a thirty- day suspension from extra-duty work, this incident is remarkably similar to the conduct leading to that suspension, which happened due to conduct in May of the same year.

Administrative Law JudgeFinally, and most importantly, Rusk failed to tell the truth on two separate occasions in the JA interview. This is unacceptable and incompatible with being a police officer. Rusk knew the policies and procedures of the Department, and he knew he was held to a higher standard as a law enforcement officer. Yet he failed to follow this policy or live up to that higher standard. Accordingly, I CONCLUDE that the sustained charges are sufficiently egregious to warrant the termination of appellant from his position as a police officer.

AnalysisThe Commission agrees that removal is the proper penalty in this matter. The appellant's infractions as described by the ALJ are egregious and inimical to what the public expects from a law enforcement officer, who is held to a higher standard. Moreover, the appellant does not have an unblemished record, having received a major discipline for what the ALJ described as “remarkably similar” misconduct in close proximity to the current matter. Also problematic is the appellant’s lack of veracity, which cannot be countenanced in any public employee and especially not a law enforcement employee. As such, a penalty less than removal would serve to undermine the public trust. Accordingly, the Commission finds the penalty of removal neither disproportionate to the offense nor shocking to the conscious.

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 appeals of Joseph Rusk, III.

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