JUSTIN VARGA, CSC Docket No. 2024-585

BackgroundThe appeal of Justin Varga, Police Officer, Clifton, Department of Public Safety, removal, effective August 23, 2023, on charges, was heard by Administrative Law Judge R. Tali Epstein (ALJ), who rendered her initial decision on June 14, 2024, Exceptions were filed on behalf of the appellant and a reply to exceptions was filed on behalf of the appointing authority.

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, the Civil Service Commission, at its meeting of July 24, 2024, accepted the Findings of Fact and Conclusions of the ALJ as well as her recommendation to uphold the removal.

Upon its de novo review of the ALJ’s initial decision as well as the entire record, including the exceptions filed by the appellant and the reply, the Commission agrees with the ALJ’s determinations regarding the charges, which were substantially based on her assessment of the credibility of the testimony of the witnesses and her assessment of that testimony in light of the video of the incident. In this regard, while the exceptions argue that the ALJ’s findings are contrary to the evidence in the record, especially in light of the appellant’s testimony, the Commission is not persuaded. 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 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 Nid. 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(¢); Cavalieri u. Public Employees Retirement System, 368 N.dJ. Super. 527 (App. Div. 2004). In this matter, there is nothing in the record or the appellant’s exceptions to demonstrate that the ALJ’s credibility determinations or her determinations as to the credible evidence in the record, or her findings and conclusions based on those determinations, were arbitrary, capricious or unreasonable. Accordingly, the Commission finds nothing in the record to question those determinations or the findings and conclusions made therefrom.

The other issue in this matter is the proper penalty to be imposed. Upon its de novo review of the ALJ’s determination in that regard, the Commission agrees with the ALJ’s determination to uphold the removal. 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 vu. 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, such as 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.J. 567 (1990).

Administrative Law JudgeIn this matter, the ALJ found that the appellant’s infractions were egregious and warranted removal. She also found that even if the infractions were insufficient on their own to support removal, the appellant’s previous disciplinary history also supports the removal under the tenets of progressive discipline. The Commission agrees. In this regard, the ALJ stated:

Varga actions and omissions in connection with Williams’ arrest and the events that followed in the early morning hours on November 25, 2021, violated numerous rules, policies, procedures and regulations. Varga’s misconduct displayed a dereliction of duties and absence of good judgment that fell far below the stricter standard of conduct to which pohce officers are held (citations omitted). The seriousness of the violations Varga committed created dangerous circumstances that put his life, the lives of fellow officers, other CPD employees, and those of the public, at risk.

AnalysisSafety and security are defining concepts that underlie a police officer's duties and responsibilities. Varga’s conduct demonstrated a casual disregard of, and lackadaisical approach to, his employer’s rules, policies and procedures.

Considered on their own, the gravity of the violations here warrant Varga’s removal from employment as a police officer (citation omitted). A review of his disciplinary history does not support a different result.

Administrative Law JudgeEven if this tribunal’s simultaneously issued decision against Varga—sustaining charges of major discipline and imposing a sixty- working-day suspension—is not considered, Varga’s disciplinary history includes two major disciplines (R-13, R-16), three performance deficiency notices (R-14, R-15, R-18) and a “last chance agreement.” (R- 17.) Given that I CONCLUDE that Varga’s removal is appropriate based only on his violations of the multiple charges sustained herein, I need not reach questions concerning the application or interpretation of the “last chance agreement.” Nevertheless, Varga’s disciplinary history is notable in that he did not have “a substantial record of employment that is largely or totally unblemished by significant disciplinary infractions.” {In re] Herrmann, 192 N.J. [19] at 33.

The ALJ’s penalty analysis is appropriately on point as the appellant’s infractions are egregious for a Police Officer entrusted to uphold the law and the safety of the citizenship. The Commission finds that those infractions are likely to undermine the public trust and support the penalty of removal, which is neither disproportionate to the offenses nor shocking to the conscious. The Commission finally notes that even if the infractions were not sufficiently egregious to support removal, the appellant’s prior disciplinary history! would also clearly support his removal based on progressive discipline.

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 Justin Varga.

1 This is true even not taking into account the 60 working day suspension that was levied at the same time as the removal, as it would not be appropriate to consider that suspension for progressive disciplinary purposes. In this regard, receiving that suspension concurrent to the removal would not serve the purpose of previous discipline, namely, to warn an employee that future misconduct could lead to more severe future penalties.

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