As we have explained here before, the New Jersey Civil Service appeal process gives civil service employees a meaningful avenue for appealing discipline imposed by their government employers. However, a recent appellate opinion is a good reminder that this meaningful avenue for appeal is a two-way street.
The New Jersey Civil Service Appeal Process
When a governmental employer wants to discipline employees with civil service protections, it must first give them a Preliminary Notice of Disciplinary Action (a “PNDA”) listing the charges and specifications against them. Employee then have the right to elect to have a hearing, and whether they do nor not, when final discipline is imposed, the employer must then give the employee a Final Notice of Disciplinary Action (an “FNDA”). For major discipline (a fine or suspension of more than five days, or termination), the employee has 20 days to file an appeal.
The appeal is filed with the New Jersey Civil Service Commission. If the employer contests the appeal, as employers normally do, the Civil Service Commission will then send the appeal to the New Jersey Office of Administrative Law as a “contested case” where an administrative law judge (“ALJ”) will hold a hearing. The ALJ essentially acts as a fact finder for the Commission. After the hearing the ALJ issues a recommended decision which the Commission may accept, modify or reject, although it is generally required to give deference to the ALJ’s findings of fact, particularly ALJ’s determinations about the credibility of witnesses because the ALJ actually saw them testify while the Commission did not.
If either party objects to the Civil Service Commission’s final decision, it may appeal to the Appellate Division of the Superior Court of New Jersey. This is an appeal “as of right,” meaning the Appellate Division must hear the appeal. The final appeal is to the New Jersey Supreme Court, which has the discretion whether or not to hear the appeal. The Supreme Court accepts only a small number of appeals each year.
For minor discipline, there is no right to appeal to the Civil Service Commission. Rather, the employee’s only avenue for relief is to file an action in lieu of prerogative writ in the Law Division of Superior Court. The employee has 45 days to do this.
The Rastatter Case
In August 2020, the Appellate Division issued an unpublished opinion in the case of In the Mattter of Odalys Rastatter, City of Passaic. The opinion explained that the City alleged that it fired Rastatter, a police lieutenant in the Passaic Police Department, for failing to show up at work as ordered during Hurricane Sandy, lying about it to her superiors and an internal affairs investigator, and ordering a subordinate to falsify records to make it appear as if she had attended work. The case was referred to the OAL, where an ALJ held a hearing over seven days during which ten witnesses testified. The ALJ issued a decision finding Rastatter and her witnesses more credible, and recommended that she be reinstated without discipline.
The New Jersey Civil Service Commission rejected the ALJ’s recommendations. While noting that the Commission was normally required to accept the ALJ’s credibility determinations, in this case it could reject them because after a seven day trial the opinion only explained the ALJ’s credibility evaluations of ten witnesses in a single sentence, without even listing a single particular witness, and did not explain the reasons for the determination at all. Moreover, the Commission went to great length explaining how Lieutenant Rastatter’s witnesses’ testimony was directly contradicted by the documentary evidence, including text messages, phone messages, and videos.
Lieutenant Rastatter appealed to the Appellate Division. She argued that the Commission did not have the discretion to disregard the ALJ’s credibility evaluations and fact determinations, and that under the doctrine of progressive discipline she should not have been fired even if she did was guilty. The Appellate Division rejected both these arguments and upheld the Commission’s decision. First, while the Commission and courts are generally required to accept the ALJ’s fact finding and credibility determinations, they are not required to do so when these determinations are arbitrary, capricious, or not based on substantial credible evidence. Here, the Appellate Division explained, the Commission correctly reasoned that the documentary and video evidence overwhelmingly established that Lieutenant Rastatter did, in fact, commit the offenses the City charged her with.
The Appellate Division also rejected Lieutenant Rastatter’s arguments about progressive discipline. While generally minor first offenses will not result in major discipline, for employees with a significant disciplinary history harsher discipline may be imposed. Moreover, severe infractions may result in major discipline, including termination, even for a first offense. Moreover, law enforcement officers are held to a higher standard of conduct because of the special trust the government confers on them. The court explained that being absent without leave during a major emergency such as Hurricane Sandy, lying to superiors and investigators, and ordering subordinates to falsify records is an egregious offense, particularly for a senior officer.
The Appellate Division therefore upheld Passaic’s termination of Lieutenant Rastatter’s employment.
The most important takeaway is that while the civil service appeal process gives meaningful review for employees, it gives meaningful review for employers as well.
But don’t feel bad for Lieutenant Rastatter. She also sued the City of Passaic in the Law Division of the Superior Court and her case settled for 1.2 million dollars. This raises an interesting question for us New Jersey civil service procedure nerds. The Winters Doctrine generally precludes an employee from suing in Superior Court and also pursuing a civil service appeal for the same conduct. If Passaic had been on top of its game they might have gotten the lawsuit or Civil Service appeal thrown out for that reason.
Our New Jersey employment attorneys represent government employees in lawsuits, civil service appeals and appeals to New Jersey’s appellate courts. Call us at (973) 890-0004 or fill out the contact form on this page. We can help.