Matthew Strauss, CSC Docket No. 2024-2528

BackgroundThe appeal of Matthew Strauss, a County Correctional Police Sergeant with the County of Bergen, Sherrif's Department, of his demotion to County Correctional Police Officer, effective May 15, 2024, and his suspension of 60 working days, effective May 16, 2024 on charges, was heard by Administrative Law Judge Ernest M. Bongiovanni (ALJ), who rendered his initial decision on March 5, 2026. Exceptions were filed on behalf of the appointing authority and on behalf of the appellant.

AnalysisHaving considered the record and the AL.J’s initial decision, and having made an independent evaluation of the record, including a thorough review of the exceptions filed by the parties, the Civil Service Commission (Commission), at its meeting of April 8, 2026, accepted and adopted the Findings of Fact and Conclusions of Law as contained in the ALJ’s initial decision and his recommendation to reverse the demotion and uphold the 60 working day suspension.

The Commission makes the following comments regarding the charges relating to the appellant’s deployment of Oleoresin Capsicum (OC) Spray, commonly known as pepper spray, against an inmate when such use was alleged not to be warranted. As indicated above, the Commission thoroughly reviewed the appointing authority's exceptions in this matter and finds them unpersuasive. In this regard, the appointing authority argues that the inmate was, at most, a “passive resistor” who was not attacking the appellant. Therefore, it contends that the appellant’s use of OC Spray to restrain the inmate violated its Standard Operating Procedures and the New

Jersey Attorney General Guidelines on Use of Force. However, the ALJ’s determination is based significantly on his assessment of the testimony of the witnesses. In that 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. Id. at 659 (iting 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 v. Public Employees Retirement System, 368 N.J. Super. 527 (App. Div. 2004). Upon its review and notwithstanding the appointing authority's arguments in the exceptions, the Commission finds no persuasive evidence in the record or the exceptions to demonstrate that the ALJ’s findings and conclusions based on his credibility determinations were arbitrary, capricious or unreasonable.

Administrative Law JudgeSpecifically, the ALJ noted that in the appointing authority’s investigator's report “Inmate Bennett ... with his hand handcuffed behind him stood up (emphasis supplied) and showed Sergeant Strauss his hands as he explained a previous injury to that area. Inmate Bennett was forcibly seated back into the chair by the escorting officers.” Thus, the ALJ found that the investigator’s report lent credibility to Strauss’s statement that he acted in response to the inmate’s defiance to orders that Strauss may have reasonably thought that OC Spray was safer than having officers continue to physically force back into sitting. Additionally, the ALJ indicated that none of the other officers “independently” reported an unlawful use of force regarding this incident, and they were required to do so if they thought the incident involved an unlawful use of force. Therefore, the ALJ determined that the appellant deployed the OC Spray to a defiant, combative, and noncompliant inmate who was not under complete physical control of the officers who were waiting for a restraint chair to arrive. Further, the ALJ stated that the Warden admitted that if the inmate had been placed in a restraint chair, which could have easily taken five officers, the appellant would not be charged. Moreover, the Warden maintained that the use of the OC Spray involved less risk of an injury to the inmate or the officers than forcing the inmate into the restraint chair, and that under some circumstances, even when an inmate is handcuffed, deploying the OC Spray could be justified. The ALJ also noted that the expert witness:

. . . points out Strauss’s motivation rather than being his own immediate fear of the harm posed by Bennett to him, could properly have been motivated with his wanting to protect the other officers from having to again wrestle this large, and in my opinion, violent, volatile man to the ground again. Significantly, he believes, as I also do that with just one officer’s hand on the shoulder of the inmate, just prior to deploying the OC Spray “without the restraint chair being in full use and operation, Bennett was not completely secure,” and further in my opinion, he presented a sufficiently violent threat justifying the use of force.

Additionally, the ALJ highlighted the opinion of the appellant’s expert that the “Prosecutor office did not feel that this incident was excessive force’ or they ‘would have taken over the investigation rather than submit it back to the agency.” Moreover, the appellant’s expert testified that “Bennett was classified as an active resister which allows an officer to use OC Spray,” which the ALJ opined was “consistent with the balance of the credible testimony and documentary evidence that it was more likely than not the case that Strauss showed, in my opinion, the danger the irate and volatile inmate presented under the circumstances which reasonably warranted the very limited brief use of force to reasonably control the inmate with the least risk of harm to the inmate and others.” Therefore, the ALJ reversed the penalty of the demotion, as it was “obviously . . . based on the so-called unjustified use of force.”

AnalysisConcerning the upheld charges, while the appellant acknowledges that he violated policy with regard to the body worn camera video, he argues that the penalty imposed should be something short of a 60 working day suspension. Specifically, the appellant states that he was unaware of the policy in accessing the video and did so to evaluate his own conduct and not for any “nefarious motive.” Additionally, the appellant believes that the length of the penalty was unprecedented for a supervisory officer and unwarranted based on the principles of progressive discipline as he has no disciplinary history. However, the Commission disagrees. 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.J. 567 (1990). Moreover, the Commission is also mindful that “the appraisal of the seriousness of [the appellant’s] offense and degree which such offenses subvert discipline .. . are matters peculiarly within the expertise of the corrections officials. The appraisal is subject to de novo review by the {Commission],” Rahway State Prison, supra, “but that appraisal should be given significant weight.” Bowden v. Bayside State Prison, 268 N.J. Super. 301, 306 (App. Div. 1993), cert. denied, 135 N.J. 469 (1994).

In this matter, it is undisputed that the appellant violated policy when he accessed and copied videos of the incident from the body worn cameras of two other officers, without authority to access such records, and that he failed to document this in his report of the incident. Further, while the appellant claims that he was unaware of the policy, as a supervisor, he should have been aware of the policy, despite the fact that the body worn cameras were new. Additionally, the ALJ noted that the appellant’s expert witness pointed out that the appellant downloaded the materials using different phones, which was inconsistent with his explanation that he did not know it was against any policy to do so. Therefore, the Commission agrees with the ALJ’s assessment of the charges relating to the body worn cameras and finds that the appellant’s penalty of a 60 working day suspension was appropriate.

Accordingly, since the demotion has been reversed, the appellant is entitled to be immediately reinstated to County Correctional Police Sergeant. He is further entitled to unmitigated differential back pay! from May 15, 2024, the effective date of his demotion, to the date of his reinstatement less the 60 working day suspension which was effective May 16, 2024. Regarding counsel fees, since the appellant has not prevailed on all or substantially all of the primary issues on appeal, he is not entitled to an award of counsel fees. See N.JjJ.A.C. 4A:2-2.12. The primary issue in any disciplinary appeal is the merits of the charges, not whether the penalty imposed was appropriate. See Johnny Walcott v. City of Plainfield, 282 N.J. Super. 121, 128 (App. Div. 1995); James L. Smith v. Department of Personnel, Docket No. A-1489- 02T2 (App. Div. March 18, 2004); In the Matter of Robert Dean (MSB, decided January 12, 1993); In the Matter of Ralph Cozzino (MSB, decided September 21, 1989). In the case at hand, although some charges and the demotion were dismissed, other charges were sustained, and major discipline was imposed. Consequently, as the appellant has failed to meet the standard set forth at N.J.A.C. 4A:2-2.12, counsel fees must be denied.

1 It is noted that the mitigation requirements under N.J.A.C. 2-2.10(d) do not apply to a demotion.

This decision resolves the merits of the dispute between the parties concerning the disciplinary charges and the penalties imposed by the appointing authority. However, per the decision of the Superior Court of New Jersey, Appellate Division, in 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 differential back pay are finally resolved.

ORDER

The Civil Service Commission finds that the action of the appointing authority in demoting the appellant was not justified. The Commission reverses that action and reinstates Matthew Strauss to County Correctional Police Sergeant. However, the Commission finds that the action of the appointing authority in suspending the appellant was justified. Therefore, the appellant is entitled to unmitigated differential back pay, benefits, and seniority pursuant to N.J.A.C. 4A:2-2.10 from the effective date of his demotion until his reinstatement less his 60 working day suspension.

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 differential back pay, benefits, or seniority. However, under no circumstances should the appellant’s reinstatement to County Correctional Police Sergeant be delayed pending resolution of any potential dispute.

Counsel fees are denied pursuant to N.J.A.C. 4A:2-2.12.

The parties must inform the Commission, in writing, if there is any dispute 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 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.