Jonathan Rivera, CSC Docket No. 2024-554

BackgroundThe appeal of Jonathan Rivera, Police Officer, Union City, Department of Public Safety, 20 working day suspension, on charges, was heard by Administrative Law Judge Patrice E. Hobbs (ALJ), who rendered her initial decision on December 9, 2024. Exceptions were filed on behalf of the appointing authority and a reply 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 filed by the parties, the Civil Service Commission (Commission), at its meeting on January 15, 2025, adopted the ALJ’s recommendation to reverse the 20 working day suspension.

As mentioned above, the Commission has thoroughly reviewed the exceptions filed in this matter and finds them unpersuasive. However, the Commission finds that while the reversal of the charges and suspension was proper, it does not agree with all of the ALJ’s findings and conclusions in that regard. Specifically, the Commission disagrees with the ALJ’s findings that an appointing authority cannot impose discipline for excessive absence unless an employee utilizes more than 15 days in a year since N.J.A.C. 4A:6-1.3(a)2 provides that all full-time employees are entitled to an allotment of 15 days of sick leave per calendar year. The subject rule only defines the entitlement to the amount of sick leave, not how it is to be utilized, or what constitutes excessive usage. In this regard, the rules do not define what, for disciplinary purposes, constitutes chronic or excessive absenteeism or lateness pursuant to N.d.A.C. 4A:2-2.3(a)4. In local service, the definition of what constitutes such an infraction is left to appointing authority policy or is defined via a negotiated agreement. Where defined by an appointing authority’s policy, such policy must clearly delineate the parameters of what constitutes a violation. In the current matter, the appointing authority, at the time of the infraction had a sufficiently defined policy, where it could be possible for an employee to be disciplined for excessive absenteeism even if they used less than 15 days per year. Thus, any finding the ALJ made regarding this matter indicating that charges should not have been upheld since the appellant was entitled, per Civil Service rules, to use at least 15 days per year before being potentially subject to discipline is not appropriate, and therefore, not upheld.

Nevertheless, the charges should not be upheld in this matter. Most importantly, the Commission finds that, notwithstanding the above, the record demonstrates that the appointing authority did not appropriately follow its policy. Specifically, while the policy allows an employee the opportunity to provide documentation or explanation regarding the prior year’s absences, the ALJ found that did not occur. Specifically, the ALJ determined that the neither the Lieutenant nor Chief “requested medical records from Rivera or even asked him to explain the reasons for his absences,” which should have been a part of a closer review of the appellant’s usage prior to imposing discipline. While the record indicates that the appellant was sent an email regarding his usage, there is conflicting testimony as to its content. The appellant testified that the email did not request any documents regarding his sick time usage, while the Lieutenant testified that email did include said request.! _In making the finding quoted above, the ALJ, therefore, implicitly determined that the appellant’s testimony was more credible on this issue. The Commission agrees.

Administrative Law JudgeThe ALJ, who has the benefit of hearing and seeing the witnesses, is in a better position to determine the credibility and veracity of the witnesses. See Matter of J.W.D., 149 NJ. 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 (citing Lecurto, 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). Here, while the ALJ did not “explicitly enunciate” that she found the appellant’s testimony regarding the contents of the email more credible than the Lieutenant’s testimony, her finding in that regard makes that the only reasonable conclusion. Moreover, the Commission finds no persuasive evidence in the record or in the appointing authority’s exceptions as to that issue to demonstrate that the ALJ’s findings and conclusions based on her assessments in that regard were arbitrary, capricious or unreasonable. As such, given that the appointing authority did not follow its own policy in imposing discipline

Analysis' The actual email is not entered in the record.

in this matter, the charges must be dismissed. Finally, as to any “patterned” absences, the Commission agrees with the ALJ’s findings on that issue.

Since the suspension has been reversed, the appellant is entitled to 20 working days of back pay, benefits, and seniority pursuant to N.J.A.C. 4A:2-2.10. Moreover, the appellant is entitled to reasonable counsel fees pursuant to N.J.A.C. 4A:2-2.12.

This decision resolves the merits of the dispute between the parties concerning the disciplinary charges and the penalty imposed by the appointing authority. However, per the Appellate Division’s decision, 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 counsel fees are finally resolved.

ORDER

The Civil Service Commission finds that the action of the appointing authority in suspending the appellant was not justified and reverses that action. The Commission further orders that the appellant be granted 20 working days of back pay, benefits, and seniority. The amount of back pay awarded is to be reduced as provided for in N.dJ.A.C. 4A:2-2.10(d)3. The Commission also orders reasonable counsel fees pursuant to N.J.A.C. 4A:2-2.12(a). Proof of income earned, and an affidavit in support of reasonable counsel fees shall be submitted by or on behalf of the appellant to the appointing authority within 30 days of issuance of this decision.

Pursuant to N.J.A.C. 4A:2-2.12(b), the parties shall make a good faith effort to resolve any dispute as to the amount of counsel fees.

The parties must inform the Commission, in writing, if there is any dispute as to counsel fees 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 pursuant 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.