Carlos Pina, CSC Docket No. 2024-498

BackgroundThe appeal of Carlos Pina, Police Officer, Union City, Department of Public Safety, 35 working day suspension, on charges, was heard by Administrative Law Judge Susana E. Guerrero (ALJ), who rendered her initial decision on March 21, 2025. Exceptions were filed on behalf of the appellant and a reply was filed on behalf of the appointing authority.

AnalysisHaving considered the record and the ALJ’s initial decision, and having made an independent, de novo evaluation of the record, including a thorough review of the exceptions and reply, the Civil Service Commission (Commission), at its meeting on June 11, 2025, adopted the Findings of Fact and Conclusions and the ALdJ’s recommendation to uphold the 35 working day suspension.

Regarding the charges, notwithstanding the appellant's exceptions arguing to the contrary, the Commission finds that the ALJ’s findings and conclusions were appropriate and based on the credible evidence in the record. In this regard, her findings were based on her credibility determinations of the testimony of the witnesses as well as her assessment of the surveillance and cell phone videos of the incident in question. 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.eJ. 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 (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). The Commission finds no persuasive evidence in the record or the appellant’s exceptions 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 affirms the ALJ’s findings regarding the charges in this matter.

The Commission further rejects the appellant’s arguments that the charges should be dismissed, or the penalty modified since the appointing authority violated the Attorney General Guidelines for Internal Investigations. In this regard, the Appellate Division, in O’Rourke v. City of Lambertville, 405 N.J. Super. 8 (2008), stated:

In summary, we are convinced that when a law enforcement agency adopts rules pursuant to N.J.S.A. 40A:14-181 to implement the

Attorney General's Guidelines, the agency has an obligation to comply with those rules. Because it failed to do so, and because the deficiencies tainted the disciplinary process, the City's decision to remove plaintiff from his position cannot stand. (emphasis added).

Initially, the Commission notes that procedural deficiencies at the departmental level which are not significantly prejudicial to an appellant are deemed cured through the de novo hearing received at the Office of Administrative Law. See Ensslin v. Township of North Bergen, 275 N.J. Super. 352, 361 (App. Div. 1994), cert. denied, 142 N.J. 446 (1995); In re Darcy, 114 N.J. Super. 454 (App. Div. 1971). Moreover, the Commission notes that the O’Rourke matter was decided in a jurisdiction not covered under the Civil Service Act, i.e., Title 11A of the New Jersey Statutes. Regardless, where applicable, the Commission believes O’Rourke should also be applied to Civil Service jurisdictions. A plain reading of the above holding indicates that in order to find that charges should be dismissed, there must be a showing that the deficiencies also tainted the disciplinary process. In this matter, the Commission finds nothing in the record or the exceptions to establish that the departmental-level disciplinary process was so tainted as to procedurally dismiss the charges.

Moreover, the Commission rejects the appellant’s argument that the ALJ should have disqualified herself based on actual or perceived bias or conflict. Initially, the Commission notes that the appellant’s claims are untimely and, technically, not properly before it. In this regard, any request by a party for an ALJ’s disqualification must be made initially to the ALJ pursuant to N.J.A.C. 1:1-14.12(d), which states, in pertinent part, that “Any party may, by motion, apply to a judge for his or her disqualification . . . and shall be filed as soon as practicable after a party has reasonable cause to believe that grounds for disqualification exist.” Moreover, if such a motion is made and a party wishes to further challenge its disposition, the party must then request interlocutory review of that determination pursuant to N.J.A.C. 1:1-14.10G), k) and (). Those rules indicate that for issues of ALJ disqualification, any further interlocutory challenge must be filed with the Director of the Office of Administrative Law. Moreover, those rules indicate that such challenges can only be made interlocutorily, and not to the agency head after the issuance of an initial decision. Regardless, the appellant’s tenuous claims that the ALJ’s previous position and previous association with a certain law firm somehow creates an actual or perceived bias in this particular matter is speculative, at best. As such, the Commission finds no reason for the ALJ to be disqualified.

Finally, regarding the penalty, the appellant argues that even if the charges are upheld, the originally imposed 35 working day suspension is too harsh a penalty. The Commission disagrees. In her initial decision, the ALJ stated:

The respondent seeks to impose a_thirty-five-working-day suspension, which the City asserts is a reasonable, and arguably lenient, penalty given the nature of Pina’s offense and his long history of disregard for the Department’s behavioral standards. The City points out that Pina was disciplined seven times in the fifteen months prior to the incident with Rydzyk, and Chief Faccini testified credibly that he considered Pina’s disciplinary history in determining the discipline to be imposed here.

Administrative Law JudgeWhile Pina asserts that the proposed penalty is excessive, given the violations here, Pina’s disciplinary history, and his apparent inability or unwillingness to acknowledge any wrongdoing or convey any remorse, I find no reason to disturb the City’s proposed suspension. Although Pina has received numerous reprimands over the years, and served two-day suspensions in 2008, 2013, 2018, and 2020, and a four- day suspension in 2020, he has never received any major discipline. I CONCLUDE that the penalty proposed by the City, a thirty-five- working-day suspension, is reasonable. Pina handled himself in an unprofessional and unnecessarily aggressive manner with a civilian in the middle of the street near headquarters. Chief Faccini was rightfully concerned about public perception given Pina’s conduct in yelling and cursing at a civilian, pulling off his uniform shirt, and essentially causing a scene while others watched. Even considering Pina’s twenty- five years of service as an officer, and the various awards and accolades he has received over the years, the City’s proposed suspension is reasonable.

AnalysisSimilar to its review of the underlying 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.” Moreover, the Commission emphasizes that a Police 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.eJ. 567 (1990).

The Commission wholly agrees with the ALJ’s assessment of the penalty. A Police Officer must be held to a higher standard, and this is especially true regarding their interactions with the public. The appellant’s actions in this matter fell well short of what would be expected of a Police Officer and are worthy of significant sanction. Moreover, while the appellant was a longstanding employee and had no previous major discipline, he had several minor disciplinary suspensions, which also supports the imposition of, as the ALJ indicated, and “arguably lenient” penalty. As such, the Commission finds that the 35 working day suspension imposed should impress upon the appellant the severity of his misconduct and serve as a reminder that any future misconduct may result in more severe disciplinary action, up to removal from employment.

ORDER

The Civil Service Commission finds that the action of the appointing authority in suspending the appellant for 35 working days was justified. The Commission therefore affirms that action and dismisses the appeal of Carlos Pina.

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