Terry Bell, CSC Docket No. 2025-99, 2025-769

BackgroundThe appeals of Terry Bell, Fire Fighter, Rahway, Fire Department, 30 calendar day suspension! and removal, effective March 6, 2024, on charges, were heard by Administrative Law Judge Susana E. Guerrero (ALJ), who rendered his initial decision on July 11, 2025. Exceptions were filed on behalf of the appointing authority:

AnalysisHaving considered the record and the attached ALJ’s initial decision, and having made an independent evaluation of the record, including a thorough review of the exceptions, the Civil Service Commission (Commission), at its meeting on August 13, 2025, accepted and adopted the ALJ’s Findings of Fact and Conclusions and her recommendations to reverse the 30 calendar day suspension. However, it did not agree with her recommendation to modify the removal to a six-month suspension. Rather, it upheld the removal.

Administrative Law JudgeRegarding the 30 calendar day suspension, the ALJ found no credible evidence in the record to support the underlying charges. While the appointing authority argues otherwise, upon review, the Commission agrees. In this regard, the ALJ found:

Bell testified that he heard Gustofson’s announcement that dinner was ready and that he heard: “If you're not eating can you come to the watch.” He denies, however, that either his name or BC

AnalysisFleischman’s name was ever mentioned, or that Gustofson ever

1 The record indicates that the appellant served this suspension from February 6, 2024, through March 5, 2024, indicated that the announcement constituted an order or instruction coming from a superior officer. He testified that he did not think that the announcement was an order, but merely a request for coverage by the firefighter. Firefighter Gustofson did not testify at the hearing, and BC Fleischman concedes that he did not listen to the entire announcement and does not remember whether Bell’s name was even mentioned by Firefighter Gustofson. Bell was the only witness who testified that he heard the announcement. Consequently, I FIND that while an announcement was made over the loudspeaker seeking coverage at the watch desk, it is unclear what precisely was said. I also FIND that the evidence is inconclusive that the announcement mentioned BC Fleischman, or that it mentioned or was expressly directed at Bell and not made generally to all those not participating in the group dinner. The record is also inconclusive that Bell was the only firefighter not participating in the group dinner or that he was aware that he was the only one and that the announcement was intended for him alone.

Administrative Law JudgeWhen BC Fleischman went to the watch desk to offer Bell some dinner and saw that Bell was not there, he went to the TV room and asked Bell why he was not manning the watch desk. Bell informed him that he did not know that he had to be there, and when BC Fleischman told him that he was ordered to go to the watch desk, Bell responded: “I take orders from Gus now?” and testified that he heard Gustofson laughing and did not believe the announcement to be an order. One firefighter cannot give another firefighter orders, and he considered Firefighter Gustofson’s announcement to be a request, not an order. I FIND that while Bell did not present to the watch desk when coverage was requested, the evidence is inconclusive that the announcement constituted an order, or that it was presented as an order or instruction coming from a superior officer that was expressly directed at Bell. I also FIND that the record is inconclusive that Bell “falsely accused” BC Fleischman of harassment or “spread false accusations and rumors,” as alleged in the FNDA.

AnalysisWhile the appointing authority disagrees with the ALJ’s findings, it has presented no persuasive evidence that her findings and conclusions in this regard were arbitrary, capricious, unreasonable or not based on her assessment of the credible evidence in the record.

As to the removal, the appointing authority argues that the ALJ’s reduction in penalty is not warranted. The Commission agrees. In this regard, the ALJ stated:

Here, the City argues that Bell’s actions, and the loss of trust by the Chief and BC Fleischman, justify his removal. I recognize that Bell failed to perform his duties at the Stearns Street fire and that his actions jeopardized the safety of the victim, and of the EMT and officers who climbed onto the roof. After being ordered by his Captain to remove the victim from the roof, Bell climbed the ladder, spoke very briefly with the victim, and walked away from him for about five minutes. The victim was alert and physically able to walk down the ladder with Bell—in fact, he did so five minutes later after a few seconds of coaching by the EMT and other officers. If Bell needed help getting him down, he should have radioed for assistance, and he certainly should have stayed with him.

Rather, he walked away, left the victim on the roof, and involved himself in tasks that were never assigned to him. Fortunately, the five-minute delay in securing the victim did not result in any harm to him or to the

EMT and officers who climbed onto the roof. The victim also did not appear to be in any imminent danger from the fire while he was on the roof, as it was contained to the front of the building and was quickly extinguished. Yet, the fact remains that it was Bell’s responsibility to remove the victim from the roof, as ordered.

While Bell failed to perform his duties at the Stearns Street fire and later submitted a Post-Incident Analysis that contained certain mischaracterizations and inaccuracies about what occurred at the fire,

Administrative Law JudgeI am not persuaded that Bell’s conduct was sufficiently egregious to warrant termination, the “penalty of last resort.” Consequently, given that Bell served as a firefighter for sixteen years without any major discipline; that his superiors agree that he was a talented and knowledgeable firefighter; and that the events of the Stearns Street fire occurred within a very short time span, five minutes, and did not result in any harm to the victim or others, I CONCLUDE that the penalty of termination is excessive, and that a more appropriate penalty is a s1x- month suspension.

AnalysisRegarding the penalty, similar to its assessment of the 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 uv. 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 Carier v. Bordentown, 191 N.J. 474 (2007).

The Commission finds the appellant's misconduct in this matter egregious and worthy of removal from employment. While it is significantly noteworthy that the appellant was a 16-year employee with no history of major discipline, his misconduct was seriously negligent for a public safety employee, and in fact, a dereliction of his primary duties to ensure the safety of the public and his co-firefighters. His failure to successfully do so in a timely manner, which are the most basic duties of his position, cannot be countenanced. The Commission cannot imagine how the appointing authority could trust the appellant to successfully perform these primary duties should he be returned to employment. Accordingly, the Commission finds that the appellant’s removal from employment, notwithstanding his prior history, is appropriate and neither disproportionate to the infraction nor shocking to the conscience.

Since the 30 calendar day suspension has been reversed and the removal has been upheld, the appellant is entitled to back pay, benefits, and seniority pursuant to N.J.A.C. 4A:2-2.10 from February 6, 2024 through March 5, 2024, to account for the reversed 30 calendar day suspension. Further, since 30 calendar day suspension has been reversed, pursuant to N.J.A.C. 2-2.12, the appellant’s attorney is entitled to reasonable counsel fees only for work on that portion of this consolidated matter.

This decision resolves the merits of the dispute between the parties concerning the merits of the dispute between the parties concerning the suspension and removal. However, per the Appellate Division’s decision, Dolores Phillips v. Department of Corrections, Docket No. A-5581-01T2F (App. Div. February 26, 2003), the Commission’s decision on the suspension will not become final until any outstanding issues concerning counsel fees for the suspension are finally resolved.

ORDER

30 Calendar Day Suspension

The Civil Service Commission finds that the appointing authority’s action in suspending the appellant for 30 calendar days was not justified. Therefore, the Commission reverses that action and upholds the appeal of Terry Bell. The appellant is therefore entitled to 30 calendar days of back pay, seniority and benefits pursuant to N.JLA.C. 4A:2-2.10(d)3. The Commission further awards reasonable counsel fees as provided for in N.J.A.C, 4A:2-2.12 for that matter. Proof of income earned and 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. The Commission directs that 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 regarding the suspension 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.

Removal

The Civil Service Commission further finds that the action of the appointing authority in removing the appellant was justified and dismisses the appellant’s appeal of that action.

This is the final administrative determination regarding the appellant’s removal. Any further review should be pursued in a judicial forum.