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.