N.J.A.C. 4A:2-2 Major Discipline
Every section of N.J.A.C. 4A:2-2, Major Discipline: 13 rules with full text, amendment history and citing decisions.
- 4A:2-2.1Employees covered
Major discipline protections reach permanent career service employees and people serving a working test period. Everybody else is outside this subchapter, though an appointing authority may set up its own major discipline procedures for them. The part worth reading closely is what a union contract does to all of this. Where the State and the majority representative have agreed on a procedure for appointing authority review before discipline is imposed, that negotiated procedure becomes the exclusive one. And where they have agreed on binding arbitration for disputes that would otherwise be appealable to the Commission, arbitration replaces the Commission appeal entirely. So the route described across the rest of this subchapter may already have been substituted for by a contract, and checking the agreement comes before checking the rule.
- 4A:2-2.2Types of discipline
Three things count as major discipline: removal, disciplinary demotion, and a suspension or fine of more than five working days at one time. Anything smaller is minor discipline and runs on a different track under 4A:2-3, with different appeal rights, which makes this short section the fork in the road that decides everything downstream. One detail catches people out on the arithmetic. When a Final Notice of Disciplinary Action, a Commission decision or a settlement expresses a suspension in days, it means working days unless it says otherwise. A twenty-day suspension is four weeks of pay, not three.
- 4A:2-2.3General causes
Twelve grounds, and every disciplinary charge in New Jersey civil service traces to at least one of them. They are: incompetency, inefficiency or failure to perform duties; insubordination; inability to perform duties; chronic or excessive absenteeism or lateness; conviction of a crime; conduct unbecoming a public employee; neglect of duty; misuse of public property including motor vehicles; discrimination affecting equal employment opportunity, including sexual harassment; violation of the Federal drug and alcohol rules for commercial motor vehicle functions; violation of the New Jersey residency requirement; and other sufficient cause. The last one is doing a great deal of work, and so is conduct unbecoming: both are broad by design, and between them they account for a large share of the decisions listed further down this page.
- 4A:2-2.4Limitations on suspensions and fines
A suspension or fine cannot run beyond six months, with one exception: a suspension pending a criminal complaint or indictment, which 4A:2-2.7 governs separately. Whether a suspension costs you pay depends on where you work. In local service the appointing authority decides whether it is with or without pay. In State service it is without pay unless the department head specifically authorises otherwise. Fines are tightly limited. One may be imposed only as restitution, in place of a suspension where the appointing authority shows a suspension would be detrimental to public health, safety or welfare, or where the employee has agreed to a fine as an option. A fine of more than five days salary can be paid in instalments, capped as a percentage of gross pay that rises with the size of the fine.
- 4A:2-2.5Opportunity for hearing before the appointing authority
Before major discipline is imposed you must be served with a Preliminary Notice of Disciplinary Action setting out the charges and the facts supporting them, and offered a hearing. That is the general rule, and the exceptions are what make the section long. An employee can be suspended immediately, before any hearing, where they are found unfit for duty, a hazard to somebody if left on the job, or where immediate suspension is needed to maintain safety, health, order or effective direction of public services. Somebody appointed on or after 1 September 2011 without a New Jersey principal residence and without a residency exemption falls into that category by statute. Even then the Preliminary Notice and the offer of a hearing must follow within five days, in person or by certified mail. Immediate suspension delays the process; it does not remove it.
- 4A:2-2.6Hearings before the appointing authority
What the departmental hearing looks like. It is held before the appointing authority or somebody it designates, which means the employer hears the case against its own charges. You may be represented by an attorney or an authorised union representative. Both sides get to review the evidence supporting the charges and to present and question witnesses. You cannot be made to testify, though if you choose to, you can be cross-examined. Within 20 days of the hearing, or longer if both sides agree, the appointing authority has to decide and give you a Final Notice of Disciplinary Action, in person or by certified mail. That Final Notice is what starts the 20-day clock for appealing to the Commission under 4A:2-2.8.
- 4A:2-2.7Actions involving criminal matters
What happens to the job while a criminal charge is pending. Suspension still requires a Preliminary Notice of Disciplinary Action, and that notice should tell you N.J.S.A. 2C:51-2 may apply and that you may want to talk to a lawyer about it, because that statute governs forfeiture of public employment on conviction. You have five days from receiving the notice to request a departmental hearing, or longer if the appointing authority agrees or a negotiated agreement provides for it. The hearing is narrow. It decides one question only: whether the public interest is better served by suspending you until the criminal matter is resolved, judged by whether you are unfit for duty, a hazard to somebody, or whether suspension is needed to maintain safety, health, order or effective direction of public services. It is not a hearing about guilt.
- 4A:2-2.8Appeals to Civil Service Commission
Twenty days. That is the whole of what most people need from this section: an appeal from a Final Notice of Disciplinary Action must be filed within 20 days of the employee receiving it. Not 20 days from when your lawyer or union representative received it, which the rule states explicitly, because that difference has cost people their appeals. If the appointing authority never gives you a Final Notice at all, you may appeal directly to the Commission within a reasonable time instead. The appeal has to follow the format of the Major Disciplinary Appeal Form, go to the appointing authority in copy, and attach the Preliminary Notice and, where there is one, the Final Notice. It also has to name the appointing authority representative the notices came from, your own contact details, and the action being appealed.
- 4A:2-2.9Commission hearings
Whether you get a hearing, and who conducts it. The Chairperson or a designee decides on requests for a Commission hearing. Major discipline appeals are heard either by the Commission itself or referred to the Office of Administrative Law for a hearing before an administrative law judge. Minor discipline usually gets no hearing at all, with two exceptions that turn on accumulation rather than severity: the last suspension or fine of five working days or less where the year total reaches 15 working days, and the last one where you have received more than three such suspensions or fines in a calendar year. Where an employee has pleaded guilty to or been convicted of an offence causing forfeiture of employment under N.J.S.A. 2C:51-2, the section sets out separate treatment.
- 4A:2-2.10Back pay, benefits and seniority
What you get back when discipline is overturned. Where a penalty is reversed the Commission must award back pay, benefits, seniority or restitution of a fine; where a penalty is only modified, it may award them. Suspension pending a criminal matter is treated separately and splits by job. A municipal police officer gets back pay, benefits and seniority under N.J.S.A. 40A:14-149.1 after the charges are disposed of. Everybody else gets them if acquitted at trial, or if the complaint or indictment is dismissed, or if the prosecution is terminated. Two disposals that feel like wins do not count: Conditional Discharge and Pre-Trial Intervention both leave you without back pay. And where disciplinary action followed the criminal disposition, nothing is awarded in a removal case.
- 4A:2-2.11Interest
Interest on a back pay award is discretionary and narrow. The Commission may add it in two situations only: where an appointing authority has unreasonably delayed complying with an order of the Commission or the Chairperson, or where the Commission finds sufficient cause on the particular facts. There is no automatic entitlement, so winning back pay does not carry interest with it. Where interest is allowed, the rate is the annual rate in the New Jersey court rules at R.4:42-11 rather than anything set by the Commission itself. One sequencing detail matters to the arithmetic: the back pay award is reduced first, under the mitigation provisions in 4A:2-2.10, and interest is calculated on the reduced figure.
- 4A:2-2.12Counsel fees
Counsel fees are recoverable, but the bar is high and the rates are capped. The Commission must award partial or full reasonable fees, covering both the proceedings before it and the departmental level major disciplinary proceedings, where the employee has prevailed on all or substantially all of the primary issues. Partial success on a secondary point does not qualify. Where fees are awarded the parties settle the amount between themselves wherever possible. The rate ranges are set in the rule rather than by the market: 100 to 150 dollars an hour for an associate, 150 to 175 for a partner with fewer than 15 years in practice, and 175 to 200 for a partner with 15 years or more, or for anyone whose practice concentrates in employment or labour law regardless of years.
- 4A:2-2.13Removal appeals of certain law enforcement officers and firefighters
A separate removal appeal route for police officers, other law enforcement officers and full-time paid firefighters, and the definitions decide who is in it. A law enforcement officer here means a permanent full-time member of a State, county or municipal law enforcement agency who is statutorily empowered to detect, investigate, arrest, detain or rehabilitate people violating New Jersey criminal law, and who has completed a Police Training Commission approved course. The Department of Law and Public Safety is expressly excluded from counting as a law enforcement agency for this purpose, with the Juvenile Justice Commission carved back in. A firefighter means a full-time paid firefighter in a public fire department under N.J.S.A. 40A:14-200. If you fall inside those definitions and you are being removed, this section rather than the ordinary appeal route governs how your case is heard.