Joseph Howe, CSC Docket No. 2025-1449

BackgroundThe appeal of Joseph Howe, County Correctional Police Officer, Cape May County, Sheriff’s Department, removal, effective July 17, 2024, on charges, was heard by Administrative Law Judge Kathleen M. Calemmo (ALJ), who rendered her initial decision on August 15, 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, including a thorough review of the exceptions and reply, and having made an independent evaluation of the record, the Civil Service Commission (Commission), at its meeting of September 24, 2025, did not adopt the ALJ’s recommendation to uphold the removal. Rather, the Commission reversed the removal.

Procedural History

Administrative Law JudgeThe ALJ originally decided this matter via a June 3, 2025, initial decision, where she recommended dismissing the charges and reversing the removal. Upon consideration of that decision at its July 2, 2025, meeting, the Commission remanded the case to the Office of Administrative Law. Specifically, the Commission stated:

This matter is remanded solely for one issue. Namely, in the initial decision, the ALJ notes that the appellant believed that “[t]he information written on the Evaluation were [his] concerns, entitled to protection under the First Amendment.” No other mention is made thereafter in that regard. However, the Commission believes that whether the information written is protected, in this context, is not a settled question. As such, the Commission requires the ALJ to provide a more thorough legal analysis as to how or if the information written on the form by the appellant is, indeed, entitled to protection under the

AnalysisFirst Amendment. If there is a basis for such information to be afforded such protection, that provides an additional reason as to why the proffered charges should be dismissed. Conversely, if the analysis demonstrates that the information is not so protected, the ALJ should reexamine her determinations . . . (emphasis added).

August 15, 2025, Initial Decision

Administrative Law JudgeIn her initial decision on remand, the ALJ presented her legal analysis of whether the information provided by the appellant on the evaluation form was protected under the First Amendment, finding that it was not. As such, and as instructed in the Commission’s remand decision, the ALJ undertook a thorough reexamination of her subsequent findings and conclusions. Most noteworthy, regarding the insubordination charge, the ALJ found:

When Warden Lombardo warned Howe that he could not express his beliefs about anti-white culture in the workplace, this was a lawful order that was not protected by the First Amendment. It was clear from

AnalysisHowe’s testimony and his special report that he understood that the purpose of the meeting was to discuss what he had written on the

Administrative Law JudgeAcademy Instructor Evaluation. The only plausible reason for the meeting was Warden Lombardo’s warning to Howe to cease all further such discussions. Thus, I CONCLUDE that Warden Lombardo issued a clear order to Howe not to engage in any further discussions about his views as written on the Academy Instructor Evaluation.

AnalysisThe next day, on April 30, 2024, when Officers Wainwright and

Womack engaged Howe in a discussion about his beliefs and opinions on race as expressed in his special report and Academy Instructor

Evaluation, Howe’s ready response was insubordinate. Accordingly, I

CONCLUDE that respondent has proven the charge of insubordination and that charge is AFFIRMED.

Based on the appellant’s alleged inappropriate comments in his conversation with Officers Wainwright and Womack, the ALJ similarly upheld the charges of conduct unbecoming a public employee, neglect of duty and other sufficient cause.

In his exceptions, the appellant’s contentions can be boiled down to one overarching concern, that the ALJ exceeded the scope of the Commission’s remand by making new findings and determinations based solely on her finding that the appellant’s evaluation form comments, for which he was not specifically charged, were not protected under the First Amendment. The Commission rejects this contention. As quoted above, the Commission’s remand ordered the ALJ, if she found the comments were not protected speech, to “reexamine her determinations.” In her remand decision, that is exactly what the ALJ did. Further, she provided specific and detailed findings based on the actual charges and specifications proffered. As indicated above, once the ALJ found that the speech was not protected, she determined that the credible evidence in the record supported the charges of insubordination, conduct unbecoming a public employee, neglect of duty and other sufficient cause. Noteworthy in that regard is the ALJ’s specific indication that as the appellant’s speech was unprotected, his subsequent inappropriate comments during the Wainwright/Womack conversation were sanctionable. However, while the ALJ did not exceed the Commission’s remand order, upon its de novo review, it cannot agree that the original comments written by the appellant on his evaluation form were not protected speech.

In this regard, law enforcement employees are held to a higher standing 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). One of the paramount considerations in this regard is a law enforcement employee’s veracity. In fact, municipal Police Officers in New Jersey who are untruthful risk the loss of their job and designation as an unreliable witness if called to testify. See e.g., Brady v. Maryland, 373 U.S. 83 (1963) and Giglio v. United States, 405 U.S. 150 (1972). In this matter, the appellant was asked while at the Training Academy to provide his honest assessment of his courses. It is important to realize that the Training Academy is an academic setting, where candid discussions on important public and social issues should be encouraged and not chilled. Moreover, the appellant’s comments on the evaluation constituted his opinions and were not made “in the line of duty” or directly made to an individual. Accordingly, the appellant’s opinions in this particular context and setting should be considered protected speech. As indicated in the Commission’s remand decision, since it finds that the appellant’s evaluation responses would be protected speech, it finds that as an additional reason to dismiss the charges and reverse the removal. As such, the Commission rejects the ALJ’s August 15, 2025, initial decision, and adopts the Findings of Facts and Conclusions from the ALJ’s June 3, 2025, initial decision.

Since the removal has been reversed, the appellant is entitled to be reinstated with mitigated back pay, benefits, and seniority pursuant to N.J.A.C. 4A:2-2.10, from July 17, 2024, through April 17, 2025. In this regard, the Commission notes that the appellant was still in his working test period when he was removed. Specifically, he received a regular appointment effective April 18, 2024, and was removed effective July 17, 2024. Since it cannot be assumed that the appellant would have successfully completed his working test period, he should only receive back pay from July 17, 2024 through April 17, 2025, which is the remainder of the working test period he did not complete. See In the Matter of Justin Miller (CSC, decided June 18, 2014); In the Matter of Terrell Twiggs (MSB, decided May 9, 2007), In the Matter of Jennifer

Mortimer (MSB, decided April 26, 2006) and In the Matter of Rosalind Candelaria (MSB, decided November 10, 1998). Any time after April 17, 2025, until the appellant’s actual date of reinstatement shall be recorded as a leave of absence without pay. Further, upon his reinstatement, the appellant is required to complete the remainder of his working test period (approximately nine months). Moreover, as the removal has been reversed, 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 back pay or counsel fees are finally resolved. In the interim, as the court states in Phillips, supra, if it has not already done so, upon receipt of this decision, the appointing authority shall immediately reinstate the appellant to his position.

ORDER

The Civil Service Commission finds that the action of the appointing authority in removing the appellant was not justified. The Commission therefore reverses that action and grants the appeal of Joseph Howe. The Commission further orders that the appellant be granted back pay, benefits, and seniority from July 17, 2024 through April 17, 2025. The amount of back pay awarded is to be reduced and mitigated as provided for in N.J.A.C. 4A:2-2.10. Proof of income earned, and an affidavit of mitigation shall be submitted by or on behalf of the appellant to the appointing authority within 30 days of issuance of this decision.

The Commission further orders that counsel fees be awarded to the attorney for the appellant pursuant to N.J.A.C. 4A:2-2.12. An affidavit of services 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:2-2.10 and N.J.A.C. 4A:2.12, the parties shall make a good faith effort to resolve any dispute as to the amount of back pay and counsel fees. However, under no circumstances should the appellant’s reinstatement be delayed pending resolution of any potential back pay or counsel fee dispute.

The parties must inform the Commission, in writing, if there is any dispute as to back pay or 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.