On July 30, 2019, the New Jersey Appellate Division issued a formal opinion in Docket No.: A-3194-17T1 reversing an earlier decision by the the Civil Service Commission (CSC) refusing to reopen the appeal of a Corrections Sergeant (Appellant) of his removal from employment with the New Jersey Department of Corrections (NJDOC). The Appellant was previously removed from his position at New Jersey State Prison after charges alleging that he employed excessive force upon an inmate were sustained. The matter was first tried in the Office of Administrative Law, where the Administrative Law Judge recommended the Appellant’s removal from employment. That recommendation was subsequently converted to a Final Administrative Decision by the CSC.

The Appellant later petitioned the CSC to reopen his removal appeal after evidence surfaced that was previously withheld by the Mercer County Prosecutor’s Office. The evidence was produced in connection with a separate civil lawsuit against the Appellant, among other defendants, in United State District Court (NJ), that ended with a jury rendering a “no cause of action” verdict in Appellant’s favor on various Civil Rights and 1983 claims. The basis for the later petition to the CSC concerned the exculpatory nature of the withheld evidence and the impact it may have had on the Administrative Law Judge’s decision had it been produced in accordance with the Rules of Administrative Procedure. The CSC, however, was not moved and simply refused to consider Appellant’s petition, deeming it untimely.

A formal appeal was subsequently lodged with the Appellate Division, leading to the July 30th decision referenced above. The Appellate Division ultimately reversed the CSC, reasoning that the CSC’s decision to reject, on procedural grounds, Appellant’s application to reopen the case to consider evidence previously not available to him was “clearly a mistaken one and so plainly unwarranted that the interests of justice demand intervention and correction.” The appellate court then ordered the CSC to consider the Appellant’s application to reopen the hearing on his removal in light of the new evidence.

Donald C. Barbati, Esq., of Crivelli & Barbati, L.L.C., argued the matter in the Appellate Division on behalf of the Appellant. Frank M. Crivelli, Esq., also of Crivelli & Barbati, L.L.C., tried and defended the earlier civil lawsuit for the Appellant in the United States District Court of New Jersey that ended in a “no cause” jury verdict. The Appellant has maintained his innocence throughout the entirety of this process.