IN THE MATTER OF ADRIAN FIGUEROA, JR., ETC. (NEW JERSEY CIVIL SERVICE COMMISSION) ( 2022 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2686-20
IN THE MATTER OF
ADRIAN FIGUEROA, JR.,
CAMDEN COUNTY,
DEPARTMENT OF PARKS.
_________________________
Argued May 16, 2022 – Decided August 16, 2022
Before Judges Accurso and Enright.
On appeal from the New Jersey Civil Service
Commission, Docket No. 2020-804.
James Katz argued the cause for appellant Adrian
Figueroa, Jr. (Spear Wilderman, PC, attorneys; James
Katz, on the briefs).
Howard L. Goldberg, First Assistant County Counsel,
argued the cause for respondent Camden County,
Department of Parks (Emeshe Arzón, Camden County
Counsel, attorney; Howard L. Goldberg and Ilene M.
Lampitt, Assistant County Counsel, on the brief).
Matthew J. Platkin, Acting Attorney General, attorney
for respondent New Jersey Civil Service Commission
(Debra A. Allen, Deputy Attorney General, on the
statement in lieu of brief).
PER CURIAM
Petitioner Adrian Figueroa, Jr. appeals from the April 28, 2021 final
administrative decision of the Civil Service Commission (CSC) summarily
adopting the findings of fact and conclusions of law in an Administrative Law
Judge's initial decision and affirming his removal from employment with
respondent Camden County Parks Department (Department). Because we
conclude the CSC's decision rested on facts not supported by sufficient, credible
evidence in the record, we vacate the April 28 decision and remand for further
proceedings.
I.
Figueroa was employed as a laborer with the Department between 2013
until 2018. His duties included maintenance, landscaping, trash collection, and
setting up and dismantling structures for events, such as concerts or fairs.
Although Figueroa's duties did not include interfacing with the public, members
of the public could interact with him because he would wear a County shirt and
drive a County vehicle during work hours. Figueroa and other laborers often
worked without supervision or a partner.
On December 18, 2018, Figueroa was arrested on a charge of second-
degree sexual assault, N.J.S.A. 2C:14-2, and remained incarcerated for a few
days. On December 19, 20 and 21, 2018, an unidentified caller informed the
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Department Figueroa was sick and would not be at work; the Department was
unaware of Figueroa's pending charge or incarceration at that point.
Days later, when the County learned of Figueroa's incarceration, it served
Figueroa with a preliminary notice of disciplinary action (PNDA), seeking his
immediate suspension pursuant to N.J.A.C. 4A:2-2.5(a) and 4A:2-2.7(a).1 The
County also sought forfeiture due to Figueroa's pending charge, per N.J.S.A.
2C:51-2.2 The following month, the County issued a Final Notice of
Disciplinary Action (FNDA), seeking Figueroa's continuing suspension until
disposition of his criminal charge.
1
Under N.J.A.C. 4A:2-2.5(a)(2), "[a]n employee may be suspended
immediately when the employee is formally charged with a crime of the first,
second or third[-]degree, or a crime of the fourth[-]degree on the job or directly
related to the job"; additionally, N.J.A.C. 4A:2-2.7(a) provides, in part, "[w]hen
an appointing authority suspends an employee based on a pending criminal
complaint or indictment, the employee must be served with a Preliminary Notice
of Disciplinary Action."
2
Under N.J.S.A. 2C:51-2(a)(1) and (2), any "person holding any public . . .
position, or employment . . . who is convicted of an offense shall forfeit such . . .
position or employment if" that person is "convicted . . . of an offense involving
dishonesty or of a crime of the third[-]degree or above or . . . convicted of an
offense involving or touching such . . . position or employment."
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In July 2019, Figueroa pled guilty to harassment, N.J.S.A. 2C:33-4(b),3 a
petty disorderly persons offense, in exchange for dismissal of the second-degree
sexual assault charge.4 The sentencing judge imposed a fine and a one-year
probationary term; the probationary term ended upon Figueroa's prompt
payment of the fine.
Nine days after Figueroa pled guilty to harassment, the County issued a
new PNDA, charging him with conduct unbecoming a public employee,
N.J.A.C. 4A:2-2.3(a)(6),5 and other sufficient cause, N.J.A.C. 4A:2-2.3(a)(12),6
3
Pursuant to N.J.S.A. 2C:33-4(b), "a person commits a petty disorderly persons
offense of harassment if, with purpose to harass another," the person "[s]ubjects
another to striking, kicking, shoving, or other offensive touching, or threatens
to do so."
4
Figueroa's plea to a petty disorderly persons offense eliminated his potential
forfeiture of employment under N.J.S.A. 2C:51-2(a)(1).
5
Our Supreme Court has held the phrase "conduct unbecoming a public
employee" does not require the "'violation of any particular rule or regulation,
but may be based merely upon the violation of the implicit standard of good
behavior which devolves upon one who stands in the public eye as an upholder
of that which is morally and legally correct.'" Karins v. City of Atl. City, 152
N.J. 532, 554 (1998) (quoting Hartmann v. Police Dep't of Vill. of Ridgewood,
258 N.J. Super. 32, 40 (App. Div. 1992)).
6
"Other sufficient cause" constitutes "a true 'catch-all' provision, allowing
discipline" under the Code. McLaughlin, N.J. Pub. Educ. Emp. & Civ. Serv. L.
§ 25:2-2 (2022). See e.g., Campbell v. Dep't of Civ. Serv., 39 N.J. 556, 581
(1963).
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seeking his immediate removal. During a subsequent departmental hearing, an
independent hearing officer recommended Figueroa's removal, effective
immediately. Figueroa appealed the decision.
In August 2019, the County issued a new FNDA, removing Figueroa from
his position as a laborer, based on his guilty plea to harassment. The FNDA
charged Figueroa with conduct unbecoming and other sufficient cause. In a
section of the FNDA entitled, "Incident(s) giving rise to the charge(s) and the
date(s) on which it/they occurred," the following description appeared:
On or about December 18, 2018[,] you were arrested
based upon allegations of sexual assault. You were
charged with [N.J.S.A.] 2C:14-2C(1)[,] a second
[-]degree crime. You did not notify the County of your
arrest. On December 19 and 20, 201[8] you had
someone call you out of work sick. On July 10, 2019,
you ple[d] guilty to [N.J.S.A.] 2C:33-4[(b)]
Harassment - offensive touching.
Therefore, N.J.A.C. 4A:2-2.5 (a) (1) authorizes that "an
employee may be suspended immediately and prior to
a hearing when it is determined that the employee is
unfit for duty or is a hazard to any person if permitted
to remain on the job, or that an immediate suspension
is necessary to maintain safety, health, order or
effective direction of public services."
Notably, the FNDA did not separately charge Figueroa with misusing sick time
nor did it refer to any underlying facts relative to his plea to harassment.
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Figueroa appealed his removal to the CSC; the agency referred the matter
to the Office of Administrative Law, and an Administrative Law Judge
conducted a virtual hearing on December 10, 2020.
Josie Gambale, the Department's Senior Data Clerk in December 2018,
was the first witness to testify for the Department. She described receiving a
voicemail on December 19, 2018, confirming Figueroa was out sick. According
to her documentation, Figueroa also was "out sick" on December 20 and 21,
2018. Gambale stated she did not speak with Figueroa on the days he was
marked out as sick and did not "know who reported [him] out sick." She
admitted she had no "information that either . . . Figueroa personally called out
sick" or "requested somebody to call [him] out sick." Gambale stated that
because Figueroa was marked as being sick from December 19 to December 21,
"he would have been paid sick." She did not recall revising Figueroa's sick leave
designation once she learned he was incarcerated, rather than ill, during this
three-day period.
Magdalene McCann Johns, Director of the Department, testified about
Figueroa's job duties and stated it was possible for him to interact with members
of the public. She said at times, he would be working "alone in the park."
Further, she explained "laborers often . . . are picking up trash and doing various
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activities as a solo job" so Figueroa "could be out in the field by himself with . . .
no supervisor." McCann Johns never witnessed Figueroa interact with the
public, nor did she ever receive complaints from the public about him or his
conduct.
According to McCann Johns, Figueroa had a disciplinary history
predating her employment as Director of the Department. But after she assumed
this role, she was unaware of "any problems with his interaction with other
employees." McCann Johns also stated she did not "have any information about
the facts related to the incident to which . . . Figueroa pled guilty . . . [o]ther
than that he was arrested and put in jail for something."
Emeshe Arzon, the County's former Human Resources Director, also
testified for the Department. She stated when she was the County Human
Resources Director, she was responsible for "hiring, firing, promotions, policies,
things of that nature."
According to Arzon, she had no personal knowledge of the facts related
to Figueroa's guilty plea to harassment, but she had seen the December 2018
criminal complaint charging him with second-degree sexual assault. Arzon
testified that following Figueroa's arrest in December 2018, "[t]he County
immediately suspended . . . Figueroa pending the outcome of the criminal
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charge[]" and informed him "there was a possible forfeiture of his position based
on the pending charge[]." She also remembered Figueroa had a disciplinary
history based on a prior determination he engaged in conduct unbecoming a
public employee.
Arzon did not believe "the mere guilty plea to a [petty disorderly persons
offense] . . . constitutes conduct unbecoming a public employee and is grounds
for termination." Further, she confirmed Figueroa's plea was not subject to the
forfeiture statute and his removal was not sought under that statute. But asked
if "the County's position is that . . . harassment, offensive touching is conduct
unbecoming a public employee," Arzon answered affirmatively.
According to Arzon, Figueroa was "marked sick" for December 19, 20,
and 21, 2018. She was "not sure" "if Figueroa had someone call him out sick
for those dates." Arzon recalled receiving a phone call in December 2018,
alerting her to the fact Figueroa was incarcerated during this period. She noted,
"[t]he [Department's] sick leave policy is to take sick time when you are actually
sick or to go to a doctor's appointment."
During Arzon's testimony about the County's sick leave policy, Figueroa's
attorney raised an objection. He stated, "there's been an extraordinary amount
of questioning in this case regarding the County sick leave policy and what
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happened," even though the FNDA "include[d] no reference to any violation of
the County sick leave policy." Counsel continued,
what happened on [December] 19th, 20th and 21st . . .
is clearly out of bounds; the County is bound by the
[FNDA] that was issued in . . . August of 2019 and
[can]not expand the charges before you from that
document, and I'm going to move that all of this . . . be
excluded.
In response, the ALJ stated,
[t]he only thing I ever consider is the FNDA,
period, . . . because there is a significant due process
consideration and I take that . . . very, very
seriously. . . . All I'm concerned with is conduct
unbecoming and other sufficient cause, period.
[Counsel's] objection is sustained.
When Figueroa's counsel asked if the judge meant he would not consider
an alleged violation of the County's sick policy in his decision and counsel
would not "have to ask [the] witnesses about it," the judge responded, "[i]t can't
be. . . . It's not fair." Referencing the judge's ruling, County counsel spoke to
Figueroa's counsel directly, stating, "He's agreeing with you and I think you can
stop asking the questions." The ALJ concurred and reiterated, "it's just simply
not fair . . . and I will take that to the nth degree."
Figueroa's counsel lodged another objection when the County sought to
admit into evidence the December 2018 criminal complaint against Figueroa.
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Counsel argued the complaint contained hearsay and none of the County's
witnesses had "any personal knowledge about any of the facts in relationship to
that complaint." He also contended the complaint was not relevant because the
"original complaint was ultimately downgraded and dismissed," and "the
prejudice [in admitting the complaint] far outweigh[ed its] probative value."
The judge rejected the notion the complaint was inadmissible but stated he could
"redact out" portions of the document that were hearsay, observing, "there's no
jury here."
The final witness to testify was Figueroa's criminal defense attorney,
Jeffrey Zucker. Zucker stated the petty disorderly persons offense to which
Figueroa pled guilty "is not a crime in New Jersey," but rather a "quasi-criminal
offense" and the offense was "not at all" related to Figueroa's work as a laborer
for the County. On recross-examination, Zucker acknowledged it was his
"understanding" Figueroa pled guilty to having "continually bumped, touched
or harassed [his] victim."
The ALJ issued a written decision on March 23, 2021, sustaining the
charges of conduct unbecoming and other sufficient cause. At the outset of his
opinion, the judge noted that during the hearing, it was established
the County did not include the County Sick Policy in
the enumerated charges, however, in the "incidents
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giving rise section of the FNDA[,]" it was discussed as
a reason for [Figueroa's] disciplinary charges. In its
closing summations . . ., respondent inappropriately
requests that the sick time policy be included in this
decision. . . . However, aside from the obvious
procedural and constitutional arguments, the
undersigned will not consider any charge that is not
enumerated in the FNDA.
[(Emphasis added).]
Turning to his credibility findings, the ALJ concluded "respondent's
witnesses [were] especially credible and persuasive" and "they all had concerns
about these incidents and the safety and sanctity of the individuals working in
the Parks Department and Camden County." The ALJ also credited Zucker's
testimony.
Next, the judge found Figueroa's initial charge in December 2018 "gave
rise to this appeal" but Figueroa "pled guilty to a downgraded charge of . . .
harassment, offensive contact." Pertinent to this appeal, the ALJ found, too, that
"Figueroa used sick time to attend several court hearings."
Based on these and other findings, the ALJ concluded the Department
"sustained charges of violations of . . . conduct unbecoming, and . . . other
sufficient cause." He explained:
It is difficult to contemplate a more basic
example of conduct that could destroy public respect in
the delivery of governmental services than the image of
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a Department of Parks employee committing a
harassment-related contact offense against another
individual. And, on top of that, using his sick time to
attend the hearings. ln this day and age of transparency,
it is clear that Figueroa's conduct can adversely affect
morale or efficiency and can destroy the public's
respect for governmental employees and confidence in
the operation of public services.
[Figueroa] argued that the conduct giving rise to
the disciplinary action taken by the County occurred
while he was off duty, with someone he knew, and that
he did not tell the woman that he was a County
employee and that for these reasons the County does
not have the authority to remove him. That argument
is without merit. Irrespective of the gradation of the
charge, it is the fact that he ple[d] guilty to the harassing
offensive contact. The inkling that behavior of this
nature is acceptable is reprehensible. Also, to use sick
time for any other purpose other than a medical reason,
let alone a court date, is not appropriate. Despite
[Figueroa's] narrow view of the rules of evidence . . .
and without considering the affidavits of probable
cause from the complaint of the underlying charge, I
CONCLUDE that [Figueroa's] actions in harassing
behavior and using sick time constitutes unbecoming
conduct because they are that egregious. The charge of
violating N.J.A.C. 4A:2-2.3(a)(6) is hereby
SUSTAINED.
[(Emphasis added).]
Additionally, the ALJ found the Department "met its burden of proof in
establishing a violation of other sufficient cause by a preponderance of the
credible evidence." Without specifying a particular act of misconduct
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committed by Figueroa to sustain the charge, the ALJ stated Figueroa
"conducted himself in a manner that violated standards of good behavior and the
higher level of conduct that is expected of him as an employee of the . . .
Department." In an apparent effort to clarify the basis for upholding the charge
of other sufficient cause, the judge added, Figueroa's "actions were a clear
violation of criminal law because the N.J.S.A. 2C:33-4(b) charge is enumerated
in the New Jersey Code of Criminal Conduct. Employees of county government
should not be engaged in any criminal activity period."
Finally, in addressing the appropriate penalty to be imposed for the
sustained charges, the ALJ found Figueroa's
disciplinary record was not unremarkable. . . .
[Figueroa] has been disciplined for conduct
unbecoming a public employee in the past. [In]
February . . . 2014, . . . [Figueroa] received a three-day
minor suspension for incompetency, inefficiency or
failure to perform duties (N.J.A.C. 4A:2-2.3(a)[(l)]),
and conduct unbecoming a public employee (N.J.A.C.
4A:2-2.3(a)[(6)]). [Figueroa] used excessive force
while cleaning off the windshield of his truck which
caused the windshield to shatter and he transmitted the
following message to every employee in the Public
Works Department . . .: "You have to be white to get a
new vehicle around here." [I]n December . . . 2015, . . .
[Figueroa] was charged with conduct unbecoming a
public employee . . . ; other sufficient causes . . . ,
Camden County Policy #401 authorized use of County
vehicles, and Camden County Policy #34.0 changing
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vital information. The parties ultimately settled the
matter and [Figueroa] served a four-month suspension.
Here, Figueroa harassed and acted with the intent
to harass and intentionally touch[ed] another person in
an offensive manner. The actions of committing the
criminal harassment and using sick time to attend court
appearances certainly constitutes misconduct that is so
severe; that it is unbecoming to the employee's position;
and that renders the employee unsuitable for
continuation in the position. . . . I am compelled to
CONCLUDE that the respondent has proven, by a
preponderance of credible evidence, that [Figueroa]
engaged in conduct so egregious that application of
progressive discipline is not appropriate. I FURTHER
CONCLUDE that respondent presented the basis for
[Figueroa's] removal from employment, and that such a
removal should be AFFIRMED.
[(Emphasis added).]
Approximately one week later, Figueroa filed exceptions to the March 23
decision. On April 28, 2021, the CSC summarily affirmed the initial decision,
triggering this appeal.
II.
Figueroa raises the following points for our consideration:
POINT I – IN TERMINATING FIGUEROA, A
LABORER FOR FIVE YEARS, FOR USING SICK
TIME TO ATTEND COURT HEARINGS, A
CHARGE NEVER ALLEGED IN THE FNDA,
TESTIFIED TO AT THE HEARING AND
ADDRESSED IN THE COUNTY'S CLOSING
STATEMENT, AND PLEADING GUILTY TO A
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PETTY DISORDERLY PERSONS OFFENSE
RELATING TO PRIVATE OFF-DUTY CONDUCT,
ABSENT ANY NEXUS TO HIS DUTIES OR JOB
RESPONSIBILITIES, THE CSC DECISION IS
ARBITRARY, CAPRICIOUS AND VIOLATIVE OF
DUE PROCESS.
A. In terminating Figueroa for using sick time to attend
court hearings, a charge not included in the FNDA,
alleged by the County, testified to at the hearing or
addressed in the Employer's brief, the CSC's decision is
arbitrary, capricious, and violative of due process.7
B. The ALJ's holding that pleading guilty to N.J.S.A.
2C:33-4[(b)], a petty disorderly persons offense, absent
any nexus to Figueroa's job as a laborer, constitutes
conduct unbecoming a public employee and other
sufficient cause, is arbitrary and capricious.
C. The ALJ's admission into evidence and reliance
upon the original criminal complaint in support of
Figueroa's removal was arbitrary and capricious, as the
complaint was inadmissible hearsay under the residuum
rule, and neither the complaint nor its allegations may
be relied upon.
D. The CSC's decision that Figueroa's conduct was
egregious that progressive discipline is not appropriate
was arbitrary and capricious.
E. This Court must reinstate Figueroa rather than
remand to the CSC for redetermination.
7
We have omitted Figueroa's original Point IA. argument which merely set
forth the phrase, "Standard of Review."
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Established precedents guide our task on appeal. Our scope of review of
an administrative agency's final determination is limited. In re Herrmann, 192
N.J. 19, 27 (2007) (citing In re Carter, 191 N.J. 474, 482 (2007)). "An
administrative agency's final quasi-judicial decision will be sustained unless
there is a clear showing that it is arbitrary, capricious, or unreasonable, or that
it lacks fair support in the record." Id. at 27-28 (citing Campbell, 39 N.J. at
562). The burden of proving a decision was arbitrary, capricious, or
unreasonable is on the party challenging the agency action. Lavezzi v. State,
219 N.J. 163, 171 (2014) (citing In re J.S., 431 N.J. Super. 321, 329 (App. Div.
2013)).
When reviewing an agency decision, we examine:
(1) whether the agency's action violates express or
implied legislative policies . . .;
(2) whether the record contains substantial evidence to
support the findings on which the agency based its
action; and
(3) whether in applying the legislative policies to the
facts, the agency clearly erred in reaching a conclusion
that could not reasonably have been made on a showing
of the relevant factors.
[Allstars Auto Grp., Inc. v. N.J. Motor Vehicle
Comm'n, 234 N.J. 150, 157 (2018) (quoting In re
Stallworth, 208 N.J. 182, 194 (2011)).]
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Where an agency's decision satisfies these criteria, we accord substantial
deference to the agency's fact-finding and legal conclusions, recognizing "the
agency's 'expertise and superior knowledge of a particular field.'" Circus
Liquors, Inc. v. Governing Body of Middletown Twp., 199 N.J. 1, 10 (2009)
(quoting Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992)).
We will not substitute our judgment for the agency's even though we might have
reached a different conclusion. Stallworth, 208 N.J. at 194 (citing Carter, 191
N.J. at 483). Additionally, we give "due regard to the opportunity of the one
who heard the witnesses to judge . . . their credibility." In re Taylor, 158 N.J.
644, 656 (1999) (quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)).
However, we review legal questions de novo. Libertarians for Transparent Gov't
v. Cumberland Cnty., 250 N.J. 46, 55 (2022) (citing Brennan v. Bergen Cnty.
Prosecutor's Off., 233 N.J. 330, 339 (2018)).
Our deference to agency decisions "applies to the review of disciplinary
sanctions as well." Herrmann, 192 N.J. at 28 (citing Knoble v. Waterfront
Comm'n of N.Y. Harbor, 67 N.J. 427, 431-32 (1975)). "In light of the deference
owed to such determinations, when reviewing administrative sanctions, the
test . . . is whether such punishment is so disproportionate to the offense, in light
of all the circumstances, as to be shocking to one's sense of fairness." Id. at 28-
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29 (alteration in original) (internal citations and quotation marks omitted); see
also In re Restrepo, 449 N.J. Super. 409, 426 (App. Div. 2017).
Applying these principles, we are constrained to vacate the CSC's
determination that Figueroa should be removed from employment based on
sustained charges of conduct unbecoming a public employee and other sufficient
cause. We reach this determination because the CSC summarily affirmed the
ALJ's findings and conclusions even though he mistakenly found Figueroa "used
sick time to attend several court hearings" and "use[d] sick time to attend court
appearances." Our review of the record persuades us there was no testimony or
evidence produced during the administrative hearing to support those findings.
And while the Department's witnesses confirmed they knew Figueroa was
"marked sick" after an individual contacted the Department to call Figueroa out
sick when he was incarcerated, they did not testify they: spoke with Figueroa
while he was incarcerated; were able to identify the person who left a voicemail
to have Figueroa marked sick; or knew Figueroa asked someone to call him out
sick for the days at issue.
We also are somewhat perplexed by the ALJ's multiple references to
Figueroa's misuse of sick time in his decision, not only because the judge's
opinion chastised the Department for "inappropriately request[ing] that the sick
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time policy be included in this decision," but because the judge assured
Figueroa's counsel during the administrative hearing that Figueroa's alleged
misuse of the Department's sick policy would not be considered, given the
charge was omitted from the August 2019 FNDA.
Further, because the ALJ mistakenly found Figueroa "used sick time to
attend several court hearings" and misused sick time "to attend hearings" while
he was incarcerated, and the ALJ also concluded the "use of sick time for any
other purpose other than a medical reason, let alone a court date, is not
appropriate," we are unable to divine if the judge would have sustained the
conduct unbecoming charge absent his reliance on these mistaken findings.
Similarly, given the ALJ determined the Department proved Figueroa's
"conduct in this case violate[d] the implicit standard of good behavior . . . [and]
establish[ed] a violation of other sufficient cause," without identifying the
nature of the offensive conduct referenced, we cannot discern whether
Figueroa's alleged misuse of the Department's sick time policy played a part in
the judge finding the Department proved the charge of other sufficient cause.
Additionally, the underlying basis for the ALJ's conclusion that
progressive discipline was inappropriate and Figueroa's employment with the
Department should end suffers from the same infirmity. Indeed, the ALJ made
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clear he found Figueroa's removal from his position was warranted because his
"actions of committing the criminal harassment and using sick time to attend
court appearances certainly constitutes misconduct that is so severe . . . that
renders [him] unsuitable for continuation in the position." (Emphasis added).
Given the CSC did not address the ALJ's erroneous findings regarding
Figueroa's misuse of sick time to attend court hearings, but instead fully
"accepted and adopted" the judge's findings of fact and conclusions of law, we
are compelled to vacate the agency's final decision and remand this matter for
further proceedings. We express no opinion on whether charges for conduct
unbecoming and other sufficient cause can be sustained on remand, but given
the representations made to Figueroa's counsel during the administrative
hearing, we are satisfied any future disposition of the charges should be made
without reference to any alleged violations of the Department's sick time policy.
Considering this outcome, we need not address Figueroa's contention that
the ALJ's failure to apply progressive discipline was reversible error. It is
sufficient to note that progressive discipline can be waived if
the misconduct is severe, when it is unbecoming to the
employee's position or renders the employee unsuitable
for continuation in the position, or when [its]
application . . . would be contrary to the public interest.
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Thus, progressive discipline has been bypassed
when an employee engages in severe misconduct,
especially when the employee's position involves
public safety and the misconduct causes risk of harm to
persons or property.
[Hermann, 192 N.J. at 33.]
Additionally, "past misconduct can be a factor in the determination of the
appropriate penalty for present misconduct." Id. at 29 (citing W. New York v.
Bock, 38 N.J. 500, 522 (1962)). As we have discussed, here, Figueroa had a
disciplinary history predating his most recent charges.
Finally, because we have vacated the CSC's final agency decision, we do
not consider Figueroa's final argument that he should be reinstated rather than
have his matter remanded. To the extent we have not addressed any of his
remaining contentions, we are satisfied they are without merit. R. 2:11-
3(e)(1)(E).
Vacated and remanded for further proceedings. We do not retain
jurisdiction.
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