Michael Emmert, CSC Docket No. 2026-591

BackgroundThe appeal of Michael Emmert, a Correctional Police Sergeant with the Garden State Youth Correctional Facility, Department of Corrections (DOC), of his removal, effective May 25, 2022,! was heard by Administrative Law Judge William T. Cooper, IIT (ALJ), who rendered his initial decision on April 9, 2026. Exceptions were filed on behalf of the appointing authority, and a reply to the exceptions was filed on behalf of the appellant.

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 and reply filed by the parties, the Civil Service Commission (Commission), at its meeting on May 20, 2026, adopted the ALJ’s Findings of Fact and Conclusions of Law and his recommendation to modify the removal to a demotion to Senior Correctional Police Officer and a 30 working day suspension.

The Commission notes that the ALJ recommended upholding all the charges, which the appellant is not contesting. As such, the only remaining issue is the appropriate penalty. Further, as indicated above, the Commission thoroughly reviewed the appointing authority’s exceptions in this matter. However, it finds them

'The May 25, 2022 Preliminary Notice of Disciplinary Action indicates that the appellant’s removal was effective May 25, 2022. The ALJ's initial decision indicates that the appellant's removal was effective August 8, 2025, which is the date of the Final Notice of Disciplinary Action (NDA). However, the FNDA does not indicate a removal date.

unpersuasive. In this regard, the appointing authority argues that the appellant’s violations of its rules and regulations relating to a cell extraction of an inmate, which included deploying Oleoresin Capsicum (OC) spray twice, was a use of excessive force that warrants removal. However, the ALJ’s determination is based significantly on his assessment of the witnesses’ testimony. While the ALJ found the appointing authority’s witnesses credible, none of them observed the cell extraction in real time. Additionally, the video provided “limited value” as the inside of the cell could not be seen and the inmate could not be heard.? In this regard, 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 N.J. 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 NJ. 468, 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 Loecurto, 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 v. Public Employees Retirement System, 368 N.J. Super. 527 (App. Div. 2004). Upon its review and notwithstanding the appointing authority's arguments in its exceptions, the Commission finds no persuasive evidence in the record or the exceptions to demonstrate that the ALJ’s findings and conclusions based on his credibility determinations were arbitrary, capricious or unreasonable.

Administrative Law JudgeSpecifically, the ALJ noted that Senior Training Officer Lieutenant Christopher Antoniello, who is responsible for providing annual training to DOC staff at the Sea Girt facility for “Use of Force; Deescalation; Cell Extraction; and First Aid” testified that:

[He] watched the video and observed the inmate put his hand out of the cell as if to comply but admitted that he was uncertain as to what the incarcerated person was trying to do. He also admitted that the video was limited in value because it does not show the individual or the inside of the cell; therefore, it is impossible to know what appellant observed.

Analysis* The appointing authority argues that since the ALJ found its witnesses credible, it should be given deference regarding the appropriate penalty. However, this argument is not dispositive since the ALJ found the appellant’s witnesses credible, and they were the only eyewitnesses to the entire incident. Further, the appointing authority's comment that it will be subject to a back pay award if the removal is not upheld is not persuasive since, to find otherwise, there would be no need for an administrative proceeding when an appointing authority removes its employee.

Administrative Law JudgeAdditionally, the ALJ noted that “[o]nly two of the witnesses presented observed the cell extraction in real time, appellant and [Senior Correctional Police Officer Timothy] Ryan.” Consequently, the ALJ found Ryan to be a “pivotal witness.” Specifically, the ALJ stated that:

Ryan was not only able to observe the extraction as it occurred, but he was able to observe the interactions between appellant and the inmate that were not recorded. Additionally, as the control booth officer, Ryan was in charge of operating the cell doors and opened and closed them as the extraction occurred. Surprisingly, he was never interviewed in the investigation. Ryan described how he observed (but could not hear) inmate N.G. yelling from his second-floor cell down to the first floor as appellant approached the stairs. According to Ryan, the inmate was

Analysis“Jawing” with appellant and giving him the finger and did not appear to be complying with any of the appellant’s commands. When Ryan first opened the door, he observed the inmate’s hands, and it appeared to

Ryan that the inmate was attempting to block the OC spray. Ryan indicated that the inmate was not cooperative and was not trying to cuff up. The second time appellant approached the cell, Ryan indicated that the inmate was in a position of mule kicking. Mule kicking is where inmates position themselves to kick or hurt the first officer who enters the cell. Again, according to Ryan, the inmate never appeared to be surrendering or complying with commands.

Administrative Law JudgeThe ALJ also indicated that Ryan’s testimony was “consistent with the extraction teams members who detailed the inmate’s conduct in their special custody reports,” which each indicated that the inmate refused to follow commands.

AnalysisTherefore, the ALJ determined that Ryan was “not only an important fact witness but a credible one.” Additionally, the ALJ found the appellant credible as he “could not detect any evidence of retaliatory motive, anger, or prior misconduct.” Consequently, the ALJ concluded that:

[IJImmate N.G. refused to cooperate with his transfer. Specifically, inmate N.G. was combative and refused to follow appellant’s commands to cuff up. Inmate N.G.’s conduct necessitated the forced cell extraction, and his injuries were the result of his actions in resisting custodial attempts to remove him from the cell and not the result of an assault.

Accordingly, the Commission finds that removal is not appropriate based on the ALJ’s assessment of the credibility of testimony of the only two witnesses who had a real time view of the cell extraction where the video was only of “limited value.” Rather, the penalty of a demotion and a 30 working day suspension is proper under the circumstances,

Regarding the appellant's demotion from Correctional Police Sergeant to Senior Correctional Police Officer, the ALJ found:

[AJppellant approached the cell without the full extraction team;

appellant admittedly did not provide loud, clear commands to the inmate; when appellant first discharged OC spray, he did not follow up with a command to the inmate to cuff up and; the second time appellant discharged the OC spray, he did not allow for two minutes to elapse before ordering the extraction team into the cell.

Therefore, the Commission agrees that the appellant’s demotion is appropriate because, as a supervisor, he failed to follow the appointing authority’s cell extraction policy.

Referring to the appellant’s suspension, 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 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.” 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).

In this matter, in recommending that the removal be modified to a 30 working day suspension along with the demotion, the ALJ performed an analysis of the penalty to be imposed. In that regard, the ALJ found several mitigating factors to modify the penalty, such as: 1. The appellant followed policy by securing approval for a forced cell extraction; 2. Although he did not do so in a loud and clear manner, the appellant requested the inmate cuff up on several occasions; 3. The use of OC spray is acceptable to gain compliance of an inmate as long as it used according to policy;3 4. The inmate’s injuries were due to the inmate’s resistance to being handcuffed and not due to an assault from custodial staff; and 5. The appellant began his employment on March 25, 2008, and had no prior major disciplinary infractions and only one minor infraction for reporting late for duty. Therefore, the Commission agrees with the ALJ that the mitigating factors outweigh the aggravating factors and a 30 working day suspension, along with the aforementioned demotion, is the appropriate penalty.

Appointing authority's argument3 The appointing authority argues that since the ALJ found that the cell extraction did not comply with policy, this cannot be a mitigating factor. However, the non-compliance with the policy as outlined herein is why the appellant is being demoted and receiving a 30 working day suspension. However, this does not signify that removal is the appropriate penalty based on the totality of the circumstances.

AnalysisSince the removal has been modified, the appellant is entitled to be reinstated as a Senior Correctional Police Officer with mitigated back pay, benefits, and seniority pursuant to N.J.A.C, 4A:2-2.10 from 30 working days after the first date of disciplinary separation without pay until the date he is reinstated.

However, the appellant 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 a 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 Robert Dean (MSB, decided January 12, 1993); In the Matter of Ralph Cozzino (MSB, decided September 21, 1989). Thus, where, as here, a penalty is modified but charges are sustained and major discipline is imposed, counsel fees must be denied since the appellant has failed to meet the standard set forth at 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 decision of the Superior Court of New Jersey, Appellate Division, 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 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 a Senior Correctional Police Officer position.

ORDER

The Civil Service Commission finds that the action of the appointing authority in removing Michael Emmert was not justified. The Commission, therefore, modifies that action to a demotion to Senior Correctional Police Officer and a 30 working day suspension.

The Commission further orders that the appellant be immediately reinstated to Senior Correctional Police Officer and receive back pay, benefits, and seniority following 30 working days after the date of disciplinary separation without pay to the date of reinstatement. 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. Pursuant to N.v.A.C. 4A:2-2.10, the parties shall make a good faith effort to resolve any dispute as to the amount of back pay. However, under no circumstances should the appellant’s reinstatement be delayed pending resolution of any potential back pay dispute.

Counsel fees are denied pursuant to N.JA.C. 4A:2-2.12.

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