In the case of In the Matter of Carpenito, Sergeant Vincent Capenito appealed a final agency decision dismissing him from the Division of State Police. The Appellate Division sustained Carpenito’s dismissal and rejected his contention that the policy of progressive discipline required a less severe sanction.

On March 24, 2006, Carpenito was charged with five disciplinary infractions of the rules and regulations of the Division of State Police. The case was eventually transferred to the Office of Administrative Law as contested matter. A seven day hearing was conducted by an administrative law judge (“ALJ”), who issued an initial decision finding Carpenito guilty of the charges against him and recommending his termination of employment. Thereafter, Colonel Joseph Fuentes, Superintendent of the State Police, adopted the findings of the ALJ and dismissed Carpenito from the Division. This appeal followed.

On appeal, Carpenito argued: (1) there was insufficient evidence to support the findings that he engaged in conduct that warranted discipline; and (2) the sanction of dismissal was inconsistent with the general policy of progressive discipline. The Court, in rejecting Carpenito’s arguments, found that the Superintendent’s determination that Carpenito left his post while on duty and lied to investigators was based on Carpenito’s own admissions and, therefore, Carpenito’s contention that he was denied his right to cross-examine his wife because of her invocation of her Fifth Amendment right was of no consequence. 

Moreover, the Court found the Superintendent was entirely justified in terminating Carpenito’s employment due to the seriousness of the misconduct. The Court held that the Superintendent properly: (1) recognized that some disciplinary infractions are so serious that removal is appropriate notwithstanding a largely unblemished record and; (2) considered Carpenito’s prior disciplinary history and numerous occasions of alleged domestic disputes. As a result, the Court determined the application of progressive discipline was not appropriate in light of Carpenito’s egregious conduct.

This case illustrates an instance of where a general policy of progressive discipline will not be adhered to by a public employer. Should a disciplinary infraction be very serious in nature, a policy of progressive discipline can and will be abandoned so as to ensure a proper disciplinary response. This outcome should be noted by all public safety officers who intend to rely upon their employer’s policy of progressive discipline when contesting a disciplinary action. The seriousness of the misconduct, along with prior disciplinary history, may be used to circumvent a policy of progressive discipline and, therefore, may impose more serious consequences upon an officer than originally anticipated.  




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Photo of Frank M. Crivelli Frank M. Crivelli

Frank M. Crivelli’s practice revolves around the representation of over eighty-five (85) labor unions in various capacities, the majority of which bargain for law enforcement entities. He is proud to be called on a daily basis to provide counsel to over 12,000 state…

Frank M. Crivelli’s practice revolves around the representation of over eighty-five (85) labor unions in various capacities, the majority of which bargain for law enforcement entities. He is proud to be called on a daily basis to provide counsel to over 12,000 state, county and local law enforcement officers, firefighters and EMS workers.

Mr. Crivelli specializes his individual practice in collective negotiations.  Over the past twenty (20) years, Mr. Crivelli has negotiated well over one hundred (100) collective bargaining agreements for various state, county, municipal and private organizations and has resolved over thirty-five (35) labor agreements that have reached impasse through compulsory interest arbitration.  Mr. Crivelli routinely litigates matters in front of the New Jersey State Public Employment Relations Commission, the New Jersey Office of Administrative Law, third party neutrals for mediation, grievance and interest arbitration, the Superior Court of New Jersey and the United States District Court for the District of New Jersey.

Mr. Crivelli founded and created the New Jersey Public Safety Officers Law Blog ( approximately fifteen (15) years ago where he and members of his firm routinely publish blog posts regarding legal issues related to the employment of New Jersey Public Safety Officers.  The blog now contains over six hundred (600) articles and is reviewed and relied upon by thousands of public employees.  Mr. Crivelli has also published books and manuals pertaining to New Jersey Public Employee Disability Pension Appeals and the New Jersey Worker’s Compensation System. Currently, he is drafting a publication on how to Prepare and Negotiate a Collective Bargaining Agreement.  He lectures annually at the New Jersey State PBA Collective Bargaining Seminar, the National Association of Police Organization’s Legal Seminar, the New Jersey Public Employment Relations Commission Seminar on Public Employment Labor Law, the United States Marine Corps’ Commander’s Media Training Symposium and to Union Executive Boards and General Membership bodies on various labor related topics.

Prior to entering private practice, Mr. Crivelli joined the United States Marine Corps where he served as a Judge Advocate with the Legal Services Support Section of the First Force Services Support Group in Camp Pendleton, California.  While serving in the Marine Corps, Mr. Crivelli defended and prosecuted hundreds of Special and General Court Martial cases and administrative separation matters.  In addition to his trial duties, Mr. Crivelli was also charged with the responsibility of training various Marine and Naval combat command elements on the interpretation and implementation of the rules of engagement for various military conflicts that were ongoing throughout the world at that time. After leaving active duty, Mr. Crivelli remained in the Marine Corps Reserves where he was promoted to the rank of Major before leaving the service.

For the past fifteen (15) years, Mr. Crivelli has been certified as a Civil Trial Attorney by the Supreme Court for the State of New Jersey, a certification which less than two percent (2%) of the attorneys in New Jersey have achieved.  He is a graduate of Washington College (B.A.), the City University of New York School of Law (J.D.), the United States Naval Justice School, and the Harvard Law School Program on Negotiation.