Juan Estrella, CSC Docket No. 2024-65

BackgroundThe appeal of Juan Estrella, Police Officer, Union City, Department of Public Safety, 10 working day suspension, on charges, was heard by Administrative Law Judge Daniel J. Brown (ALJ), who rendered his initial decision on January 3, 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 exception and reply, the Civil Service Commission (Commission), at its meeting on February 5, 2025, adopted the Findings of Fact and Conclusions and the ALJ’s recommendation to modify the 10 working day suspension to a six working day suspension.

Regarding the charges, the Commission finds that the ALJ’s findings and conclusions were appropriate and based on the credible evidence in the records, Accordingly, the Commission finds the appellant’s exceptions challenging any of those findings unpersuasive.

Administrative Law JudgeRegarding the penalty, the ALJ listed the appellant’s extensive disciplinary history, including prior major discipline. Nevertheless, the ALJ found:

Union imposed a ten-day suspension, but I CONCLUDE that the appellant should receive a lesser penalty under a progressive discipline analysis. As counsel for the appellant argued, the domestic violence call that the appellant responded to was atypical. The victim was not under duress when she met with the appellant. She advised the appellant that she was no longer in an abusive relationship and that the abusive conduct occurred in West New York some years ago. Additionally, both

AnalysisCaptain Bergbauer and Lt. Rengel testified favorably about the appellant’s service as a Police Officer. Captain Bergbauer credited the appellant for his longevity with the Police Department as the appellant has been employed as a Police Officer with Union City since 2006. Lt.

Rengel stated that the appellant is a reliable officer who comes to work and does his job. Captain Bergbauer and Lt. Rengel also provided testimony that was favorable to the possibility of a lesser penalty being imposed upon the appellant. According to Captain Bergbauer, the ten- day suspension that was imposed by Union was appropriate based upon the seriousness of the charge of an inability to perform duties. However, if the sustained charge was not based upon an ability to perform duties but was based instead upon the violation of a departmental rule,

Administrative Law JudgeCaptain Bergbauer would recommend a suspension of only between three and five days. Lt. Rengel testified that the appellant should receive no suspension at all. Instead, Lt. Rengel opined that the appellant should receive enhanced supervision and additional training on how to properly respond to domestic violence incidents. I do not agree with Lt. Rengel’s opinion that enhanced supervision, and increased training is a sufficient penalty. I CONCLUDE that a suspension is necessary based upon the appellant’s misconduct and the length of his disciplinary history. However, I CONCLUDE that a ten-day suspension is excessive.

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.e. 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.J. 567 (1990).

In this regard, notwithstanding that the appellant has quite a significant disciplinary history, as detailed in the ALJ’s initial decision, the facts and circumstance presented in this matter serve as a basis to impose a lesser penalty. In this regard, the Commission agrees that the recommended six working day suspension is appropriate, as it constitutes major discipline. As such, it should serve as a warning to the appellant as to the inappropriateness of his conduct and provide warning that future misconduct could lead to more severe disciplinary penalties.

Since the suspension has been modified, the appellant is entitled to four working days of back pay, benefits, and seniority pursuant to N.dJ.A.C. 4A:2-2.10. However, he is not entitled to counsel fees. N.J.A,C. 4A:2-2.12(a) provides for the award of counsel fees only where an employee has prevailed on all or substantially all of the primary issues in an appeal of a major disciplinary action. The primary issue in the disciplinary appeal is the merits of the charges. See Johnny Walcott v. City of Plainfield, 282 N.J. Super. 121,128 (App. Div. 1995): In the Matter of Roberi Dean (MSB, decided January 12, 1993); In the Matter of Ralph Cozzino (MSB, decided September 21, 1989). In the case at hand, although the penalty was modified by the Commission, charges were sustained, and major discipline was imposed. Consequently, as the appellant has failed to meet the standard set forth in N.J.A.C. 4A:2-2.12, counsel fees must be denied.

ORDER

The Civil Service Commission finds that the action of the appointing authority in suspending the appellant was justified. However, it modifies the suspension to a six working day suspension. The Commission further orders that the appellant be granted four working days of back pay, benefits, and seniority. The amount of back pay awarded is to be reduced as provided for in N.d.A.C. 4A:2-2.10(d)3. Proof of income earned shall be submitted by or on behalf of the appellant to the appointing authority within 30 days of issuance of this decision.

Counsel fees are denied.

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