A recent New Jersey employment law decision examined the procedures for reopening a Civil Service disciplinary appeal because of newly discovered evidence.
The Newsom Case
In the case of In the Matter of Kevin Newsom, New Jersey State Prison, Kevin Newsom, a civil service employee, was terminated as a corrections sergeant by the New
On December 30, 2014, Newsom received a final notice of disciplinary action (FNDA) terminating him for conduct unbecoming a public employee for allegedly striking an inmate and causing serious bodily injury. Newsom appealed to the New Jersey Civil Service Commission, and in 2016 after an eight day trial the administrative law judge (ALJ) hearing the case recommended upholding the removal. The New Jersey Civil Service Commission adopted the decision. Newsom did not appeal.
However, in 2018, Newsom sought to vacate the 2016 decision and reopen his disciplinary appeal because of what he claimed was newly discovered evidence found in a related federal lawsuit, a videotaped statement by the inmate which Newsom claimed exonerated him. The Civil Service Commission denied the application, but after Newsom appealed the Appellate Division of the Superior Court of New Jersey reversed because Newsom sought to reopen based on new evidence, rather than seeking reconsideration which had a 45 day time limit. The Appellate Division remanded the case to the Commission for reconsideration.
Newsom requested that the disciplinary charges be dismissed. The same ALJ examined the evidence submitted – particularly the statements of other witnesses – without taking testimony or holding a hearing and found taken together they did not support a different conclusion. In making the decision, the ALJ applied the reconsideration standard and recommended denying the application. The Civil Service Commission adopted the ALJ’s recommended decision and denied Newsom’s application. He again appealed.
The Appellate Division explained that both the ALJ and Newsom misinterpreted the procedures required by its first ruling. The Appellate Division explained:
Newsom’s arguments put the proverbial cart before the horse. He fails to recognize that before he could properly file a motion for summary disposition dismissing the disciplinary charges, he had to first reopen the disciplinary proceeding which ended with the Commission’s April 25, 2016 adoption of the ALJ’s February 24, 2016 decision upholding NJSP’s removal of him from his corrections sergeant position. Newsom also ignores that, as we explained in our initial decision, his order to show cause constituted a motion to reopen the prior disciplinary proceeding, and we remanded to the Commission for it to consider and decide that application. We directed that the Commission consider Newsom’s application to reopen the disciplinary hearing based on his claim he was entitled to such relief based on newly discovered evidence.
Thus, contrary to Newsom’s claim that the only application pending before the Commission on remand was his motion for summary disposition, our remand order required the Commission to decide Newsom’s application to reopen the disciplinary proceeding that the Commission had erroneously denied as time-barred. Although framed as a motion to reopen the disciplinary hearing, Newsom’s order to show cause is more accurately characterized as a motion to vacate the Commission’s April 25, 2016 final decision and order. That is because the disciplinary proceeding could be reopened only if Newsom obtained relief from what was otherwise the Commission’s final decision upholding his removal.
The ALJ and the Commission misinterpreted our remand order. In our decision, we made clear Newsom’s order to show cause was not a request for reconsideration of the Commission’s April 25, 2016 adoption of the ALJ’s February 24, 2016 decision, and we remanded for the Commission to consider Newsom’s motion to reopen based on newly discovered evidence. Nonetheless, on remand the ALJ never directly addressed Newsom’s motion to reopen and instead the ALJ applied the standard for reconsideration motions, deciding Peterson’s newly discovered statement did not warrant reconsideration of the ALJ’s February 24, 2016 decision upholding Newsom’s removal. The Commission similarly ignored the requirements of our remand and adopted the ALJ’s determination under the reconsideration standard.
As a result, the Appellate Division granted Newsom’s second appeal and remanded the case to the New Jersey Civil Service Commission to examine the matter as an application to reopen the case for a new hearing based on newly discovered evidence, not a motion to reconsider the original decision.
This was not a win on the merits. In fact, while Newsom won, the ALJ and Civil Service Commission will still need to review the evidence to determine if it merits that the case should be reopened. Then, if it is, he still needs to go through another hearing and win on the merits, which under the ALJ’s analysis looks like an uphill battle.
The Takeaways
First, there are often areas to challenge a mistaken decision in Civil Service cases. The first is the civil service appeal process. However, even if all appeals are exhausted, when newly discovered evidence is found it may still be possible to reopen the case.
However, this is an uphill battle, and it is a very difficult case to make. Therefore every effort should be made to prevail in the original hearing and appeal. As always, evidence is key. Document everything, and try to obtain as much legally available evidence as you can.
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