Articles Tagged with New Jersey Civil Service Discipline

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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 Newdc-court-appeals-district-columbia-building-abraham-lincoln-statue-74985350 Jersey State Prison.

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New Jersey’s Civil Service System was enacted to keep politics, discrimination, favoritism out of employment decisions.  Therefore, civil service employees may only be disciplined for “just cause.”  The New Jersey and Federal Constitutions require that before any  government body may take action against anyone they must receive due process, which is notice, the right to be heard, and fundamental fairness.  Since government employers, even acting in their role as employers, are still the government, tenure-thumb-170x110-48818 employees must receive due process before they can be disciplined.  The New Jersey Civil Service Act and the Civil Service Commission’s regulations implementing it provide that due process to employees.

Written Notice and the Opportunity for a Hearing 

When a government employer wants to discipline a civil service a permanent, career service employee or an employee in a working test period, it must give the employee written notice of the charges and specifications alleged against her (specifications are a statement of the facts underlying the charges) and the opportunity for a hearing at the employer level by the governmental jurisdiction or its designee.  The employer must hold the hearing within 30 days of the notice unless the employee waives her right it.

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Background.   New Jersey Civil Service exists remove favoritism, nepotism, politics and other improper considerations from employment decisions.  This includes Civil Service discipline.  Because Civil Service employers are governmental entities, due process and fundamental fairness protections govern discipline.supreme-administrative-court-3565618_960_720-300x200

As far back as 1961, the Appellate Division gave a good summary of Civil Service disciplinary procedures.

Disciplinary proceedings against a civil servant are not only an attempt to determine the status of a particular individual; they are a statutorily authorized action to redress a wrong committed against the people of the State by one in whom the public trust has been officially reposed. The proceedings are therefore penal, or at least quasi-penal, in nature, and deeply embedded constructional principles, supported by fundamental notions of fairness, dictate that in such an action the statute or regulation defining the alleged violation be construed to comport with the fair meaning of the language used. The theme of fairness threads its way through the notice, hearing, and right of appeal provisions of our Civil Service Act, and finds particular pertinence in those sections requiring that the causes for removal constituting ‘just cause’ be enumerated with specificity. The governing consideration, that one be fairly and completely advised of the nature of the charges against him, loses all effectiveness if it is not reinforced by a requirement that the proscribed activities and contingencies warranting disciplinary proceedings be set forth with reasonable particularity and construed accordingly.

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The Appellate Division recently issued a decision exploring the limits of progressive discipline in New Jersey civil service discipline in thepolice-officer-829628_640-300x199 case of Matter of Collins.

Background

Darius Collins was a senior corrections officer at Norther State Prison.  He had been a corrections officer for more than two years and had no prior discipline.  On January 6, 2019, he was the patrolling supervisor of prisoners in a high security unit.  Collins admitted that he left a gate between two floors open.  This allowed two prisoners to leave their tier to take unauthorized showers.  When they got back the contents of their cells had been destroyed.  The prisoners then became out of control and a ten man extraction team was required to get the two inmates back under control.

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A recent New Jersey employment law decision in the case of In the Matter of Wilfred Guzman,  Rockaway Township Police Department, examined what penalties are available against a Newpolice-hoboken-train-station Jersey civil service law enforcement officer.

Background

Wilfredo Guzman was a police officer with the Rockaway Township Police Department, a civil service jurisdiction.  Guzman was suspended without pay from April 24, 2017, when he was indicted, until June 19, 2019, when he was served with a Final Notice of Disciplinary Action which terminated him.  The termination was triggered by Officer Guzman’s guilty pleas to two counts of second degree official misconduct.  The Township also fined Officer Guzman the equivalent of 1040 hours worth of pay. Guzman appealed the fine to the New Jersey Office of Administrative Law (“NJOAL”) – New Jersey employment law allows civil service law enforcement officers to skip appeals to the New Jersey Civil Service Commission requesting that the appeal be considered a contested case, and instead file instead directly with the NJOAL.

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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.police-1714956__340-300x200

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.

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The State and Federal Constitutions require that when the government takes action against someone that person must receive due process.  For Civil Service employees, that process is the disciplinary appeals process.  Therefore, in the case of In re Smith, Irvington Township, Department of Public Safety, the Appellate Division ruled that an administrative law judge and the Civil Service Commission could not rely on fact findings in a related but separate criminal trial.  This is an copimportant New Jersey employment law decision, because to meet the constitutional requirements of due process and fundamental fairness, the New Jersey Civil Service disciplinary appeals process must give a meaningful hearing to effected civil service employees.

Monique Smith was a career officer with the Irvington Police Department.  On the day that she was promoted to captain, her boyfriend broke up with her by email.  Captain Smith went to his apartment after the ceremony, and followed him when she saw him leaving in his car.  Smith admitted driving over a center island during her drive.  Smith was charged with eight traffic violations for this drive, including leaving the scene of an accident and reckless driving.  The Department suspended Smith because of the charges.  Based on this incident, Smith was also criminally charged with second degree aggravated assault, fourth degree unlawful possession of a weapon, third degree possession of a weapon for unlawful purposes, and fourth degree criminal mischief.  The aggravated assault was dismissed by the State, and the criminal mischief charge was amended to a disorderly persons offense (a misdemeanor). A jury found Captain Smith not guilty of all the charges.  The trial judge also heard the traffic offenses and found Smith guilty of reckless driving.

Prior to the decision, administrative disciplinary charges were filed against Smith for conduct unbecoming a public employee and five other violations stemming from the same conduct.  A departmental disciplinary hearing was held and a six month working day suspension without pay was imposed.  Smith appealed to the New Jersey Civil Service Commission.  The Commission referred the matter to the Office of Administrative Law (the “OAL”) as a contested case.  An administrative law judge (“ALJ”) held a two day hearing.  The ALJ issued a recommended decision that the charges be upheld but that the penalty be reduced to a ninety day suspension.  The ALJ also recommended that Irvington pay half of Smith’s attorneys fees as she was the prevailing party.  However, the ALJ based her findings not on the evidence produced at the hearing, but rather wholly on the evidence and findings of fact from the criminal trial.  Despite Smith’s exceptions, the Commission adopted the ALJ’s recommended decision, except that the ninety days would be ninety working days and it rejected the award of attorneys fees.

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New Jersey employment law provides that government employees may be fired for conviction of a crime, and for many crimes they must be fired.  However, if they are exonerated they may be reinstated to their position.  They may be subject to further discipline, but if they are not they may also receive back pay, police-hoboken-train-stationseniority and benefits for the period of their suspension.

Suspension During Criminal Charges

New Jersey Civil Service Commission regulations provide that an employee’s conviction of a crime is grounds for discipline.  An employee suspended while a criminal complaint or indictment is pending must be served with a Preliminary Notice of Disciplinary Action (known as a “PNDA”). The PNDA should include a statement that forfeiture of the employee’s position may result, and that the employee may choose to consult with an attorney.  In this case representation by an attorney is always advisable.  Within five days of receipt of the PNDA, the employee may request a departmental hearing. If no request is made (within five days or an agreed upon extension) the employer may issue a Final Notice of Disciplinary Action (an “FNDA”).

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Discipline is a major component of New Jersey’s Civil Service system.  Discipline under New Jersey Civil Service law is either “major” or “minor.”

Major Discipline

The main procedural consequence of the difference major discipline and minor discipline is that major discipline can be appealed to the New Jersey Civil Service Commission, while minor discipline can only be challenged in the Superior Court of New Jersey.  Major discipline is civil-servcie-1800s-300x165defined as a suspension or fine of more than five days.  Major discipline includes removal, disciplinary demotion, and suspension or fine for more than five working days.  The touchstone for all civil service disciplinary procedures, however, is that “The theme of fairness threads its way through the notice, hearing, and right of appeal provisions of our Civil Service Act, and finds particular pertinence in those sections requiring that the causes for [discipline, including] removal constituting ‘just cause’ be enumerated with specificity.”

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disciplinary-1326277__340-300x300New Jersey’s government employees provide a wide range of services without which the public could not survive. These range from law enforcement to firefighting, mass transit, garbage removal, building and maintaining roads, ensuring the safety of buildings, protecting the civil rights of New Jersey’s citizens, protecting the environment, traffic safety, urban planning, parks, agriculture, guarding inmates, the list goes on – in short, they affect virtually every aspect of our lives.

Our employment attorneys regularly represent New Jersey civil servants defending themselves against discipline imposed their governmental employers. This is a brief overview of discipline and appeals procedures under New Jersey’s Civil Service System.

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