Michael Negron, CSC Docket No. 2024-2357

BackgroundMichael Negron, a Sheriff’s Officer with the Hudson County Sheriff’s Office, represented by Robert Chewning, Esq., appeals his reassignment.

By way of background, in In the Matter of Michael Negron, Hudson County Sheriff’s Office (CSC, decided February 2, 2022), the Civil Service Commission (Commission) found that the appellant had not established a prima facie case that his reassignment was a form of reprisal. In that regard, the Commission determined that the appellant had not presented any evidence that established that the Undersheriff knew of or had seen a grievance prior to him issuing the memorandum reassigning six employees, including the appellant. Moreover, although the appellant claimed that earlier complaints and emails were the reason for his reassignment, he failed to establish any specific nexus between those emails and his reassignment. The appellant thereafter filed an appeal of the Commission’s decision with the Superior Court of New Jersey, Appellate Division, that resulted in the parties entering into a settlement agreement which returned the appellant to his prior assignment.

AnalysisIn this matter, the appellant argues that two years after the settlement agreement returning him to his prior assignment, the appointing authority has “returned to its practice of retaliation” against him. In particular, the appellant maintains that he has been subjected to this “pattern and practice” since 2017. The appellant also maintains that in February 2020,1 he and two other Hispanic officers were reassigned to the Court Bureau.2

In August 2023, the Executive Undersheriff and Sheriff instructed its officers not to enforce time limits set forth in permits issued to food vendors in North Bergen, and not to issue tickets to food vendors. The appellant maintains that this policy was created to specifically allow food trucks that are owned and operated by the J Family 3 to operate well beyond the time allowed under its permit.4 The appellant maintains that several members of the J Family have made donations to the Sheriff. In support, the appellant submits a copy of a political contributions summary from the New Jersey Election Law Enforcement Commission for the Sheriff showing seven donations from two members of the J Family to the Sheriff: $500 in 2016; $1,000 in 2020, 2021, 2022 and two in 2023; and $1,500 in 2024.

The appellant asserts that on or about April 14, 2024, he “objected to this illegal policy and procedure by properly issued [sic] four summonses” to a member of the J Family who was improperly parked in North Hudson Park and who, unlike the other three vehicles did not move when they were instructed to leave. The appellant maintains that another Sheriff’s Officer arrived and “reminded him” who the individual was, and the policy in place, which the appellant asserts that he took as a threat not to deliver the summons. In support, the appellant submits a certification from a Sheriff’s Officer Sergeant who states that on July 27, 2023, he and other supervisory officers were instructed by a Hudson County Commissioner and the Undersheriff that they were to avoid issuing summonses and complaints to the J Family “due to political pressure and favors.” The appellant asserts that he “refused to succumb to these improper threats and properly issued the summonses.” However, in “retaliation,” on May 6, 2024, he was transferred from the Patrol Bureau to the Court Bureau.

1 In In the Matter of Michael Negron, supra, the appellant appealed this 2020 reassignment. It is also noted that in that matter, the appellant raised complaints from 2017 and 2019. Subsequently, the parties entered into the settlement agreement, in which the appellant agreed to release, waive and discharge “the County its affiliated departments and its officers, trustees, agents, employees, successors and assigns (hereinafter collectively referred to as the ‘Releasees’) from each and every claim, demand, cause of action, obligation, damage, complaint or action or writ of any kind, nature, character or description” that the appellant “had, now has, or may have in the future” against the Releasees “on account of or arising out of any matter or thing that has happened, developed, or occurred prior to the date of this Agreement related to this matter.” As such, the Commission will not address any arguments related to that reassignment. 2 The appellant maintains that he has been assigned to the Court Bureau six times since 2012, including the instant matter. 3 For privacy reasons, the name of the vendor has been redacted. 4 For example, he claims that a member of the J Family was operating a food truck in the North

Hudson Park, as late as 2:00 a.m., after the park was closed; illegally parks on the sidewalk that does not support the weight of the vehicle; parks his personal vehicle behind the food truck; and vandalizes the sidewalk by “marking” where the line for the food truck begins.

The appellant argues that it is clear that his reassignment was in retaliation for his objection to the appointing authority’s policies, which he reasonably believed were in violation of law, rule and public policy. The appellant maintains that his complaint concerning his objections was clearly a whistleblowing activity, which the Undersheriff was aware of, and as such he was improperly reassigned less than a month later. The appellant argues that there is a clear causal connection between his refusal to participate in the illegal policy and his reassignment, based on the timing of the events alone as his reassignment was made only 15 days after he issued the summonses. Moreover, it was only one day after the issuance of the summons that two Sheriff’s Investigators, with less experience and seniority than him, were reassigned to the Patrol Bureau, assumedly to fill his position. The appellant argues that this action was only taken by the appointing authority as it knew that the appellant would be reassigned. Additionally, the appellant asserts that he was provided with no reason for his reassignment and that any reason that would be provided would clearly only be pretextual.

Finally, the appellant argues that his reassignment is clearly an adverse action as it resulted in a significant pay decrease as there are less opportunities for overtime and agency transfer opportunities in the Court Bureau, which is a far less desirable assignment. Based on the foregoing, the appellant requests that he be returned to his previous assignment, with backpay, senior status, attorney’s fees and all other equitable relief. In the alternative, the appellant requests that this matter be referred to the Office of Administrative Law (OAL) for a hearing.

In response, the appointing authority, represented by Seraphema Menna, Esq., argues that the appellant has failed to establish a prima facie case of retaliation.5 Specifically, the appointing authority argues that he has failed to establish that there was an illegal policy which benefited the J Family. In this regard, the appointing authority notes that absent the “nearly identical self-serving certifications” the appellant submits, he has not provided a scintilla of evidence which would support whether he had an objectively, reasonable belief that the Sheriff’s Office had an illegal policy or even if such a policy existed. In this regard, it points to the Undersheriff’s certification, in which he denied any knowledge or memory of instructing or encouraging supervisors and subordinates to refrain from issuing summons to food vendors, especially for the benefit of the J Family.

Additionally, the appointing authority argues that the certifications submitted by the appellant should not be considered as evidence, especially the portions alleging that the Undersheriff and Commissioner instructed officers to refrain from issuing summonses to the J Family. The appointing authority notes that the certifications are merely conclusionary hearsay statements that are not supported by any other competent evidence. Specifically, it asserts that the Sheriff’s Officer Sergeant’s statement that he was told not to issue summonses to the J Family are clearly hearsay which are not subject to any exception. Additionally, the appointing authority asserts that in the Sheriff’s Officer Sergeant’s certification, he states that he was told on July 27, 2023 to avoid issuing summonses and complaints to the J Family; however, neither he nor his entire squad were on duty that day. Further, the appointing authority submits a certification from a Sheriff’s Officer Captain, who indicates that as a captain, she supervises 49 Sheriff’s Officers, including the appellant, and 12 supervising officers in that Patrol Bureau. The Sheriff’s Officer Captain certifies that the appointing authority has not once instructed them or their officers to refrain from issuing summons to the J Family. Additionally, she certifies that there is no “directive, regulation, or policy which prohibits members of the Office from issuing summon(s) to any particular family” including the J Family. Further, the Sheriff’s Officer Captain notes that all but one of the food trucks owned by the J Family only have a city permit. The one food truck that has a county permit was not the food truck that the appellant issued a summons to. Finally, the Sheriff’s Officer Captain notes that the North Bergen Police Department does not enforce its ordinance for the vendors on a city street, which it allows to vend until all hours of the early morning.

5 Although the appointing authority argues that the Commission does not have jurisdiction to review the appellant’s claims under the Conscientious Employee Protection Act (CEPA), N.J.S.A., 34:19-1 et seq., the Commission is generally not precluded from taking notice of laws outside of the Civil Service Act in an appeal properly before the Commission. However, in this case, the Commission can review the appellant’s appeal under N.J.A.C. 4A:2-5, Employee Protection against Reprisals or Political Coercion, and N.J.S.A. 11A:2-24, Protection against reprisals.

The appointing authority asserts that it has a policy which limits the Patrol Bureau’s ability to ticket North Bergen food vendors parked on North Bergen property and to instead contact the North Bergen Police Department when issues arise. The purpose of this policy is to allow the North Bergen Police Department to address issues arising on North Bergen’s roadways which advances North Bergen’s interest in maintaining its roadways by addressing food vendors within its jurisdiction. Moreover, the appointing authority maintains that there is no directive or policy, written or otherwise, which instructs Sheriff’s Officers to refrain from issuing summonses to food vendors within Hudson County, especially one which benefits the J Family. Further, the Sheriff denies personally knowing the J Family, and he maintains that he has no knowledge of whether they had donated to his political campaign as those matters are handled by other individuals. The appellant’s conflation of the actual policy and the one the appellant purports to exist is simply a subjective belief. However, an objectively, reasonable person would not conclude such a conspiracy exists.

The appointing authority also questions why, if the appellant had an objective reasonable belief that the alleged policy existed and was implemented in July 2023, did he wait almost an entire year to protest it or disclose the alleged illegal policy. Despite the appellant’s claims to the contrary, there was no illegal policy in place. In this regard, the appointing authority notes that it “does not object to the issuance of the summons, insofar as the appellant issued the summons lawfully and within the boundaries of the park (and even if he issued the summons on [B] Avenue, although it is not the . . . preferred method of response, (emphasis in original) it is perfectly within his power and authority to do so).” The appointing authority notes that the J Family member had filed a complaint regarding the issuance of the summons. However, upon review by Internal Affairs, the appellant was exonerated of the complaint. As such, the appointing authority argues that the result and findings of this complaint, made close in time to the reassignment, strongly demonstrates that it does not take adverse action against officers, including the appellant, for issuing summons to vendors within the park. The appointing authority additionally maintains that the appellant did not “disclose or threaten to disclose” the alleged illegal activity to a supervisor or to a public body. Instead, the appellant took independent action to “protest” this alleged illegal policy.

Further, the appointing authority maintains that the appellant’s reassignment was independent of the appellant’s allegations. Initially, it notes that as the appointing authority, the Sheriff has the discretion to reassign employees, which does not need to be articulated. However, it argues that the appellant is better suited to the Court Bureau. In this regard, the appointing authority indicates that officers in the Patrol Bureau engage with the public daily and they have the ability to patrol without a partner. However, officers in the Court Bureau interact less with the public and are accompanied by other Sheriff’s Officers. The appointing authority states that since his 2007 hiring, the appellant has incurred various “Demeanor Complaints” submitted by members of the public, several of which were sustained. As a result, the appellant was ordered to undergo additional de-escalation training and to participate in mandatory counseling. Moreover, it notes that although the Sheriff’s Office is generally understaffed, the Court Bureau is particularly understaffed, which is aggravated by the fact that Hudson County is to open an additional courthouse in the near future, thereby requiring a greater need to staff the courts with Sheriff’s Officers. As such, it contends that the appellant’s reassignment to the Court Bureau was proper and lawful.

Finally, the appointing authority argues that the appellant attempts to rely on his past history with it to suggest the existence of retaliation. However, those past events have been resolved and carry no relevance to the present allegations. Therefore, there is no nexus between the appellant issuing a summons to the J Family member and the appellant’s reassignment. As previously noted, the appointing authority does not sanction officers for issuing summons to food vendors or anyone else, if done lawfully.

In response, the appellant reiterates his arguments that he has established the existence of the illegal policy through his own and the Sheriff’s Officer Sergeant’s certifications. Additionally, he submits a certification signed by six Sheriff’s Officers who indicate that “[o]n or about July 27, 2023, we were instructed by Hudson County

Commissioner . . ., Undersheriff . . ., and/or other supervisory officers that we were to avoid issuing summonses and complaints” to the J Family “due to political pressure and favors.” Further, the appellant notes that in the certification of the Undersheriff, that the appointing authority submitted, he failed to affirmatively deny the illegal policy and his involvement. Instead, the Undersheriff certified that he had “no knowledge or memory of instructing or encouraging” employees within the Sheriff’s Office to “refrain from issuing summons to food vendors with Hudson County, especially for the benefit” of the J Family. The Undersheriff also stated that he had “no knowledge of such policy, written, verbal or in any other medium” within the Sheriff’s Office. The appellant maintains that it is clear from these statements that the Undersheriff “does not deny that he set up this illegal policy in favor” of the J Family. Instead, he merely states that he does not recall whether or not he did it. The appellant submits that the “overwhelming amount of evidence” establishes that the Undersheriff created this illegal policy and/or ordered officers to cease the issuance of summonses to the J Family. At the very least, the appellant contends that this issue is a material issue of fact which requires a fact-finding hearing at the OAL.

The appellant also argues that the certifications he submitted are allowable under one of the five hearsay exclusions, namely a statement by a party-opponent’s agent concerning a matter within the scope of the agency or employment, made during the existence of the relationship. See N.J.R.E. 803(b). Additionally, the appellant asserts that the Commission is not bound by the rules of evidence. Instead, he asserts that, pursuant to N.J.S.A. 52:14B-10(a)(1), all relevant evidence, regardless of whether it is hearsay or not is admissible. Moreover, even if the statements are hearsay, N.J.A.C. 1:1-15.5, the residuum rule, would allow them to be considered and provided the appropriate weight.

Additionally, the appellant maintains that he is not required to prove the illegal policy existed. In this regard, he notes that the New Jersey Supreme Court in Dzwonar v. McDevit 177 N.J. 451, at 464 concluded that:

N.J.S.A. 34:19-3c does not require a plaintiff to show that a law, rule, regulation or clear mandate of public policy actually would be violated if all the facts he or she alleges are true. Instead, a plaintiff must set forth facts that would support an objectively reasonable belief that a violation has occurred.

Therefore, even if it is found that the policy related to the issuance of summonses with North Hudson Park was not illegal, the appellant states that he has established that he, as well as others, had a reasonable belief that it was. Further, he argues that there is no requirement that his protected whistleblowing activity be made at the time that the appointing authority created its illegal policy. The appellant asserts that he did not wait a year to object or refuse to participate. Rather, he maintains that he was never in a situation until April 2024 when he was asked to enforce the illegal policy. Further, the appellant contends that CEPA protects not only disclosures, but individuals who object to or refuse to participate in the illegal activity. Therefore, he claims that the issuance of a summons was his objection and refusal to participate in the illegal policy. The appellant reiterates that his reassignment was clearly a retaliatory action, especially because it caused him a “loss of compensation, overtime and assignment opportunities, and prestige.” The appellant emphasizes that the timing of his reassignment makes it clear that it was retaliatory.

Finally, the appellant argues that the presented reasons for his reassignment are clearly pretextual. Specifically, the appellant asserts that the history of “transfers” since April 2024, make it clear that the Court Bureau was not particularly understaffed. He maintains that eight individuals were reassigned from the Court Bureau to the Patrol Bureau between April 2024 and September 2024. These “transfers” demonstrate that the appointing authority’s claim that his reassignment was influenced by understaffing is clear pretext. Moreover, the appellant emphasizes that none of the “Demeanor Complaints” resulted in his receiving any major disciplinary actions, and as such, it demonstrates the lack of severity of these incidents.

In response, the appointing authority reiterates its arguments. Additionally, it submits a certification from the Commissioner in which he certifies that he has never instructed or encouraged any employee to refrain from issuing summons to the J Family. The Commissioner further states that he has no knowledge of such policy, either written, verbal or in any other medium, and that he has no control over any members of the Sheriff’s Office as it is a separate appointing authority. In addition, the appointing authority contends that no inference should be drawn on the basis that the appellant’s reassignment is evidence that the alleged policy exists. Furthermore, despite the appellant’s arguments to the contrary, the appointing authority points out that there is no evidence which suggests that his reassignment was retaliatory. Specifically, it notes that the summons issued by the appellant was lawfully issued and there is no evidence that there is a policy which prevents officers from ticketing the J Family.

CONCLUSION

RuleN.J.A.C. 4A:4-7.2 states that a reassignment is the in-title movement of an employee to a new job function, shift, location or supervisor within the organization unit. Reassignments shall be made at the discretion of the head of the organizational unit. Further, N.J.A.C. 4A:4-7.7 states that when an employee challenges the good faith of a reassignment, the burden of proof is on the employee. That section also provides that such an action may not be used as part of a disciplinary action, “except when disciplinary procedures have been utilized.” See also, N.J.S.A. 11A:4-16.

AnalysisN.J.A.C. 4A:2-5.1 generally provides that an appointing authority shall not take or threaten to take any reprisal action against employees in retaliation for an employee’s lawful disclosure of information on the violation of any law or rule, governmental mismanagement or abuse of authority or on the employee’s permissible political activities or affiliations. See also, N.J.S.A. 11A:2-24. In Katherine Bergmann v. Warren County Prosecutor, Docket No. A-5665-01T5 (App. Div. December 1, 2004), it was determined that an employee asserting a cause of action under N.J.S.A. 11A:2-24 is required to prove the following elements:

1) The employee “reasonably believed” in the integrity of the disclosure at the time it was made, meaning the employee had no reasonable basis to question the substantive truth or accuracy of the content of the disclosure just prior to communication (it is here that the term

“reasonable belief” is borrowed from . . . [CEPA], N.J.S.A. 34:19-1, et seq., to define what is the substantive content of a “lawful disclosure”);

2) The employee disclosed the information to a source “reasonably” deemed an appropriate recipient of such information just prior to communication (here, the term “reasonably” is used to describe the perceived proper channels through which a “lawful disclosure” should be communicated);

3) There is a connection, or nexus, between the disclosure and the complained of action (this is a standard cause-and-effect showing by the employee). Carlino v. Gloucester City High School, 57 F. Supp.

2d 1, 35 (D.N.J. 1999); Kolb v. Burns, 320 N.J. Super. 467, 476 (App.

Div. 1999).

Only after the employee satisfies the criteria above does the appointing authority bear the burden of showing that the action taken was not retaliatory. See Wright Line, 251 NLRB 1083 (1980); Mount Healthy City School District Bd. of Educ. v. Doyle, 429 U.S. 274 (1977).

Initially, the appellant requests a hearing in this matter. Reassignment appeals are treated as reviews of the written record. See N.J.S.A. 11A:2-6b. Hearings are granted in those limited instances where the Commission determines that a material and controlling dispute of fact exists which can only be resolved through a hearing. See N.J.A.C. 4A:2-1.1(d). No material issue of disputed fact has been presented in this matter which would require a hearing. See Belleville v. Department of Civil Service, 155 N.J. Super. 517 (App. Div. 1978).

In this matter, the appellant contends that his reassignment was a form of reprisal. Using the test enumerated above, the appellant has not proven all of the elements as required. In that regard, although there is a dispute between the parties that the July 27, 2023 meeting and the directive ever took place, the Commission does not need to determine whether or not the meeting and directive not to issue a summons to the J Family occurred. Instead, even if the Commission accepts, in arguendo, that this directive did occur and could provide a favorable finding that the appellant met the first prong of the above test, the appellant has still failed to satisfy the second and third prong of the test. The appellant has not presented any evidence that establishes that he “disclosed the information to a source ‘reasonably’ deemed an appropriate recipient of such information.” Although the appellant argues that he is not required to make a disclosure under CEPA, as noted above, the standard utilized by the Commission does require disclosure to an appropriate authority. In this case, the appellant appears to acknowledge that the issuance of a summons does not meet the requirement for disclosure of the information to an appropriate recipient, as he contends that CEPA protects not only disclosures, but an individual who objects to or refuses to participate in an illegal activity. Moreover, there is no indication in the record that the appellant filed any grievance with regard to the alleged policy and his objections to it. Therefore, although the appellant claims that his issuance of the summons is the reason for his reassignment, he has failed to dispute that he was the subject of multiple demeanor complaints which led to him being sent for mandatory counseling and additional training. Consequently, the appointing authority has presented essentially an undisputed legitimate business reason for his reassignment. Accordingly, the appellant has failed to present a prima facie case of reprisal, and as such, has failed to establish that his reassignment was improper or in bad faith.

ORDER

Therefore, it is ordered that this appeal be denied.

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